ON MOTION FOR REHEARING.
LATTIMORE, Judge.Appellant was convicted for assault to murder without malice and given the lowest penalty, and we affirmed the case. He moves for rehearing on the ground that it was reversible error for the court to fail to charge on simple assault. In view of the fact that the court did submit the law of aggravated assault, which is the next lower degree of assault included in an assault to murder, and by their verdict the jury clearly evidenced an unwillingness to find appellant guilty of an offense less than an assault to murder, it would be difficult for us to see how appellant could contend that he would have been benefited by the giving of a charge on the law of simple assault, — a still lower grade than aggravated assault.
The motion for rehearing will be overruled.
Overruled.