1. The only assignment of error in the bill of exceptions is upon the refusal of the judge to grant a rule nisi calling upon the solicitor-general to show cause why a new trial should not be granted upon an extraordinary motion based on alleged newly discovered evidence, presented to the judge by a defendant who had been convicted of murder without a recommendation. The evidence was of such character as would have authorized the grant of a new trial, but there was no such showing of diligence ón the part of the defendant, or of the attorney representing him prior to his extraordinary motion for a new trial, as would require a reversal of the judgment refusing to entertain the extraordinary motion for a new trial.
2. It was insisted in the argument before this court and in the brief of the attorney for the plaintiff in error that there should be a reversal, because it affirmatively appears from the form of the judgment sent up in the record that the judge failed to exercise a discretion in the matter. This point was not made by the assignment of error, and can not be raised for the first time in the brief or argument by the attorney for the plaintiff in error.
Judgment affirmed.
All the Justices concur.