Appellant contends that even in the absence of an exception to the charge of the court for failure to submit the law of aggravated assault, this court should have held such failure to be fundamental error and should have ordered a reversal hereof.
We are not inclined to think, under the present practice and statutes, that the failure of the court to submit the law of an offense supposed to be included in the one charged in the indictment, could be held by us to be fundamental in the absence of some objection or exception made in the trial court reasonably calculated to call the attention of the court below to what appellant now claims to have been a hurtful omission. As we understand the purpose of the amendatory statute in this regard, it is intended to place certain burdens upon the accused and his attorneys of examination of the court's charge before same is presented to the jury, and of calling attention to matters of omission and commission wherein it is thought change should be made. It is not now claimed that any exceptions were taken to the failure of the court to submit the law of aggravated assault. The jury did not give to the appellant herein the lowest penalty for assault with intent to murder, and we would hardly think it likely that in such case he would be injured by a failure of the trial court to submit the issue of aggravated assault. The other matters raised by appellant in his motion do not appear to us to call for any further discussion than as had by us in our original opinion.
The appellant's motion for rehearing will be overruled.
Overruled.