Conviction for simple assault; punishment, a fine of $5.00.
A motion for new trial on the ground of newly discovered evidence must be sworn to. Barber v. State, 35 Tex. Crim. 70; Dodson v. State, 92 Tex.Crim. Rep.; Miles v. State, 99 Tex.Crim. Rep..
We think one charged with an assault by striking another man with his fist, could not complain of a variance upon conviction supported by proof that he violently caught the alleged injured party by the throat with his hands. These are the only matters complained of.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 124