On Rehearing
HARWOOD, Presiding Judge.In brief in support of appellee’s application for rehearing, counsel for appellee aver that we erred in stating that appellant Chambers was not present when the assault occurred.
Counsel, in support of this contention, excerpts part of the testimony of the witness Stone, this testimony being to the effect that Chambers had told Stone he would give him $10 to whip Cagle, and when they went to the polling place Chambers had nodded his head toward Cagle to 'identify him.
Stone then testified that he called Cagle out in the hall and hit him.
This evidence does not, as counsel contend, show that Chambers was present at the time of the assault.
On the other hand, the plaintiff himself testified on the question of Chambers1’ presence at the time of the assault as follows:
“Q. Was he there at the time the assault was committed? A. No, sir.
“Q. He wasn’t there at that time? A. No, sir.”
Likewise, Mr. Harvey Rodgers, a witness for the plaintiff-appellee testified that Chambers had left a short time before the difficulty, and was not in the house when the assault occurred.
In view of the above testimony by the plaintiff below, and his witness Rodgers, we see no basis for,.and no merit whatsoever in, counsel’s averment that we erred in stating that Chambers was not present at the time of the assault.
This conclusion must be reached even upon the evidence of the plaintiff, regardless of the evidence presented by the defense, all tending to the same effect.
In our opinion we did not deal with the abstract principle of law that one may be guilty of an assault through an agent, but rather with the pleading aspects, and the variance between the complaint as framed and the proof. We adhere to our former views.
Counsel for appellant have moved to dismiss appellee’s application for a rehearing on the ground that appellee’s original brief was not filed in time.
While admittedly the appellee’s original brief was not filed in the time required, yet it was filed several months prior to the preparation of the opinion in this case, and *80the late filing was not called to the court’s attention. In this situation we deem it best to exercise our discretion against striking the application for rehearing. State ex rel. McIntyre v. McEachern, 231 Ala. 609, 166 So. 36.
Application for rehearing overruled.
PER CURIAM.
Affirmed on authority of Chambers v. Cagle, 271 Ala. 59, 123 So.2d 12.