
    Berry L. Ham v. John Taylor.
    A new trial will not be granted, on the ground of after discovered evidence, which, at most, would be receivable only in mitigation of damages.
    Appeal from Navarro. Tried below before tbe Hon. R. A. Reeves.
    Suit by appellee, to recover damages for an assault and battery, committed upon bim by the appellant. From tbe statement of facts, it appeared tbat there was no contradiction in tbe testimony, and tbat tbe appellee committed a severe and violent battery upon tbe appellant; be inflicted severe wounds upon bis bead, some of wbicb cut to tbe skull, in a triangular form, and from their appearance, seemed to bave been made by some sharp instrument. Tbe court gave a full and clear charge to the jury, of considerable length, to wbicb no objection appeared to bave been made, except in tbe motion for a new trial; and also gave tbe only charge asked for by tbe appellant. There was a verdict and judgment for $505, in favor of the appellee.
    Tbe appellant moved for a new trial, on the following grounds : 1st. Tbe charge of tbe court is not sufficiently explicit, and in consequence thereof, tbe jury was led to improper conclusions. 2d. Tbe verdict was contrary to law and evidence. 3d. The verdict was not sustained by tbe evidence. 4th. Tbe damages are excessive and oppressive. 5th. Newly discovered evidence, by wbicb appellant would be able to prove tbat appellee used insulting language to bim, disputing bis word in a positive and insulting manner, before appellant committed tbe assault upon bim.
    Tbe motion was overruled by the court, and tbe refusal to grant tbe new trial, was tbe only error assigned.
    
      G. L. Martin, for appellant.
    
      C. M. Winkler, for appellee.
   Wheeler, Ch. J.

There was manifestly no error in overruling the motion for a new trial. There can he no just pretense that the damages were excessive. 1STor will a new trial he granted, on the ground of newly discovered evidence, which, .at most, could he received only in mitigation of damages. Judgment affirmed.

Judgment affirmed.  