In his motion for rehearing appellant stresses the point presented by bill of exception number one, complaining that the court gave oral general instructions to the jury which impinged on appellant's rights. We have again. carefully examined said bill. In view of the court's qualification thereto specifically showing the substance of what he said to the jury upon the occasion of their impanelment for the week, we adhere to the conclusion announced originally, that no reversible error is shown.
After a further review of the evidence we remain of the opinion that the trial court committed no error in refusing a new trial on the ground of newly discovered evidence. The record makes it clear beyond dispute that whatever occurred between appellant and the prosecuting witness Oliver, the firearm which figured in the transaction was a rifle and not a pistol. This is shown by both witnesses for the State and appellant. In view of such established fact the uncertain recollection of the newly discovered witness as shown in his affidavit that he thought Oliver told witness the assault was made with a pistol would not likely have changed the result of the trial if such evidence had been before the jury.
It is not thought necessary to again review the other questions discussed in our original opinion. They appear to have been correctly disposed of.
The motion for rehearing is overruled.
Overruled. *Page 174