ON MOTION FOR REHEARING.
LATTIMORE, Judge.— The only complaint made by appél*102lant in his motion for rehearing is that it was error for the court below to refuse his special charge No. 3, the substance of which was that unless the jury believed beyond a reasonable doubt that appellant made the assault with intent to murder Vernon Smith, they should find him not guilty. We think this was substantially told the jury in the court’s charge given where he told the jury as follows:
“If you believe from the evidence that the defendant is guilty of an assault, but have a reasonable doubt as to whether such assault was with intent to murder, * * * you will acquit him of that offense.”
This appears to us to be a clear instruction to the jury that if they entertained a reasonable doubt as to whether appellant was guilty of an assault with intent to murder Vernon Smith, they could not convict this appellant of that offense, which is what they did. We also note that throughout the charge the trial court applied the doctrine of reasonable doubt to the question of the sufficiency of the testimony to show appellant guilty of the offense of assault to murder.
Not being able to agree with appellant, the motion for rehearing is overruled.
Overruled.