T. J. Collins, the defendant in this case, was indicted for, and convicted of, an assault with intent to murder one John J. Ryan. The main questions in this case arise upon the charge of the court, and upon the refusal of the court to give the instructions asked by the defendant.

The evidence substantially shows that Collins, the defendant, and Ryan, the party alleged to have been assaulted, both lived at Harrisburg, in Harris County, and on the night of the 26th of April, 1878, were at a ball at Harrisburg. Ryan was dancing with a lady whom he had accompanied to the ball. He believed that, in one of the dances, Collins had offered an insult to his (Ryan’s) partner. After the dance was over and the ladies seated, Ryan went up to Collins and demanded an apology of him, and finally struck him. Other persons interfered, and separated them. Shortly afterwards, Collins kicked Ryan, on the steps leading down stairs from the ball-room, when they were again separated. Ryan then tried to get Collins to come down stairs and fight him a fair fight.

Ryan worked in the machine-shop at Harrisburg. On the next day, April 27, 1878, at noon, when the whistle blew, Collins and Ryan both started for dinner. Ryan, and several others with him, passed out of the gate at the machine-shop, and started on down the highway. Collins hailed Ryan, who was some one hundred or one hundred and fifty feet ahead of him. Ryan, on being hailed, stopped and turned around. Collins walked up to within twenty or twenty-five feet of Ryan, and asked him if he wished any thing of him “to-day.” Ryan replied, “About what?” Collins said, “About that difficulty last night.” Collins remarked that Ryan had treated him badly the night before. *79Eyan replied that he had treated him as he would him or any other man who would insult a woman under his charge. Collins then said to Eyan, “ If you say I insulted a woman last night you lie.”

It further appears from the evidence that a quarrel immediately ensued between Collins and Eyan, in which they cursed each other. Collins was armed with a pistol, and Eyan was unarmed. Collins finally drew his pistol and shot at Eyan three times. The first shot missed him; the second shot hit him in the arm, as he turned to run; and the third shot was fired at and missed him as he ran. There is some conflict in the evidence as to whether Eyan, at the time he was first shot at, was making any hostile demonstrations against Collins.

The court substantially charged the law of the case applicable to the facts in evidence in reference to an assault with intent to murder. The defendant did not except to the charge, nor ask any additional instructions on this point. The court also gave the defendant the benefit of a charge upon the law of self-defence. We make the following extract from the charge of the court: 6 ‘ Every man has the right to defend himself against attack, producing reasonable expectation or fear of death, or some serious bodily injury. If you believe that defendant acted under such expectation or fear, and had reasonable ground for it, he would not be guilty of any offence. The defendant is presumed to be innocent until his guilt is established by the evidence, to the satisfaction of the jury, beyond a reasonable doubt; and unless you are so satisfied by the evidence in this case, find the defendant not guilty.”

The defendant asked the following additional instructions, which the court refused to give: “ The jury are instructed that, if they believe from the evidence that the defendant is not guilty of an assault with intent to murder, and if you further believe from the evidence that the defendant, T. J. Collins, did, as charged in the indictment, make an assault *80upon said Ryan with a deadly weapon, and if you further believe that such assault was made under a sudden provocation, and without premeditation and forethought, and that said assault was made while under a sudden passion, the jury will find the defendant guilty of an aggravated assault and battery, unless the evidence further shows that said assault was made in self-defence as heretofore charged. If the evidence satisfies you, beyond a reasonable doubt, that the-defendant, T. J. Collins, is guilty of aggravated assault and battery, then you will assess the punishment at not less than one hundred dollars nor more than one thousand dollars, and imprisonment in the county jail not to exceed two years, or by fine alone, without imprisonment, in any sum not less than one hundred nor more than one thousand dollars.” We do not think the court erred in refusing to give the instructions asked by the defendant.

From all the evidence, taken together, it is clear to our minds that the defendant, being armed with a deadly weapon, provoked the difficulty, and finally shot at Ryan with intent to kill him, when he (Collins) was in no real or apparent danger of losing his life, or of any serious bodily injury. There was nothing in the evidence tending to establish, or from which the jury might have concluded, the offence to be a lower grade than that of assault with intent to murder. The jury were justified in the conclusion that the defendant was guilty of an assault with intent to-murder.

The court did not err in overruling the defendant’s motion for new trial. The facts stated in the amended motion for new trial are of such a nature as to preclude the idea, that they were newly discovered, or that they could not have been discovered sooner by the use of proper diligence-on the part of the defendant. If the wound inflicted upon the head of defendant several years before the trial so-affected him that, under excitement, or the emotion of fear, anger, or passion, he has been since then unable to control. *81his acts, as is claimed by him, Dr. Pilaut, his relative, who lived in the same house with him, and who was a principal witness for the defence in the trial, certainly knew the fact.

We have given the entire record the most careful consideration, and we find nothing which would warrant a reversal of the judgment of the court below. It is therefore affirmed.

Affirmed.