The opinion
Wheeler, J.
In a case of an aggravated assault, the jury have a discretion, within certain prescribed limits, to assess, or fix, the punishment. (Hart. Dig. Art, 554.) The Court cannot control their discretion in that respect, even though It should appear that it was not judiciously exercised ; which, however, in the present case, we see no cause to apprehend. The jury must evidently have taken the most favorable view of the case, possible for the accused, when they found him guilty only of an aggravated assault, instead of an assault with intent to murder.
The application for a new trial was manifestly devoid of merits. What had previously occurred between the accused and others, was no justification or palliation of his crime. That he may have been offended by others, did not justify or extenuate the assault; especially upon one who had not given that offence.
The newly discovered evidence was wholly immaterial. But If the testimony of the witness could have been of any avail to the accused, it was owing to his own negligence in not examining him as a witness, that he did not have the benefit of it.
It is scarcely necessary to say, that the mere fact that there was a witness absent, whose testimony might be obtained upon another trial, was no ground for granting a new trial. If “ most of those present ” were, as he says, inimical to him, It does not follow that all present were so blinded by their prejudices against him, that they could not tell the truth ; nor does he pretend to say that the witnesses who testified upon *128 the trial did not testify truly. If hé could have proved all he proposes to prove upon another trial, it would afford him no ground of justification or excuse. The conviction was well warranted by the evidence, and the court did not err in refusing a new trial. The judgment is affirmed.
Judgment affirmed.