The opinion
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
— We have again considered carefully the
newly discovered evidence as contained in the two affidavits appended to appellant’s motion for new trial, but are more than ever convinced of the *330 fact that said testimony was purely cumulative of that of the various eyewitnesses introduced by appellant upon the trial, in which case we are not allowed under all our authorities to reverse for the refusal of a new trial sought upon this ground.
We confess ourselves not quite able to comprehend the other ground urged in appellant’s motion for rehearing. Appellant was on trial upon an indictment charging murder, and the court below saw fit to submit the law of assault to murder, together with lower degrees of assault, in his charge. Upon appropriate facts the trial court should follow this course. We find no exception taken to the charge referred to) In charging upon the law of assault to murder, the court fully instructed the jury that before they could convict, the evidence must establish that the assault was with malice aforethought. This seems to be entirely proper. We perceive no error in the action of the court in submitting the law of assault to murder, or in the jury finding appellant guilt of that offense and assessing the penalty given herein.
The motion for rehearing will be overruled.
Overruled.
Morrow, P. J., absent.