The appellant was convicted of an assault with intent to murder. There is no assignment of errors, and no bill of exceptions to the rulings of the court, taken at the trial. There was, however, a motion for a new trial, on the account of newly-discovered testimony, which motion was overruled by the court, and we think properly. The newly-discovered testimony had reference to threats made by the assaulted party previous to the difficulty; but there was positive proof that at the time of the first difficulty, the assaulted party was wholly unarmed, and the statement of Williams, that Lawson said to him, that he put his hand in his pocket to scare the accused, was only hearsay evidence at the best, and could have no reference to the second meeting of the parties, when the appellant had voluntarily gone off and armed himself anew and returned to renew the difficulty, and actually fired two shots at Lawson. *644Had Lawson been killed on the second meeting, the killing would, without doubt, have been murder in the appellant. And it is no mitigation of the offense in the appellant, that Lawson had armed himself for a voluntary fight, as the appellant, after arming himself, apparently sought to renew the assault. There is no error in the judgment of the District Court, and it is affirmed.

Affirmed.