The defendant was convicted of an assault with intent to murder one Jackson Williams, and his punishment assessed at five years in the penitentiary. The indictment follows the usual precedents in such cases, and is unobjectionable. No exceptions were taken to the charge of the court, nor were any additional instructions asked.
The first ground set out in the motion for a new trial is that the court erred in the second instruction to the jury. That instruction is as follows :
“ 2. When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to raise a reasonable doubt as to the *256guilty intention. The injury intended may be either bodily pain, constraint, a sense of. shame, or other disagreeable emotion of the mind.”
-That instruction was quite as favorable to the defendant as he was entitled to. It is almost in the language of the statute, the difference being in his favor. Pasc. Dig., art. 2138.
The newly-discovered evidence upon which a new trial was asked was in the knowledge of the wife and the brother of defendant, and two years had elapsed between the presentment of the grand jury and the defendant’s trial. One of these witnesses was examined on the trial. It is unreasonable to suppose, when a charge of so serious a nature had been pending for two years against defendant, and when his wife and brother knew facts so material to aid him in his defense, that their evidence was not discovered by defendant until after his conviction by the jury. This story was too incredible to impose upon the court. The court acted properly in overruling the motion,for a new trial, and also the motion in arrest of judgment.
The facts abundantly sustain the conviction. The judgment of the lower court is, therefore, affirmed.
Affirmed.