
    P. A. PARKER v. STATE.
    No. A-874.
    Opinion Filed April 18, 1912.
    Appeal from District Court, Jefferson County; Prank M. Bailey, Judge.
    P. A. Parker was convicted of felonious assault, and appeals.
    Judgment modified and affirmed.
    Gilbert & Bond and Dillard & Ellis, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, P. A. Parker, was tried at the February, 1910, term of the district court of Jefferson county on a charge of assault with intent to kill, and was convicted of assault with a dangerous weapon with intent to do bodily harm without justifiable •or excusable cause. On the 3rd day of March, thereafter, he was sentenced by the court to imprisonment in the state penitentiary for a period of one year and one day. We have carefully gone over the record and briefs in this case, and are of the opinion that the rights of the plaintiff in error were not properly preserved in the trial court. Counsel who briefed this case on appeal did not represent the accused on the trial below. The only serious questions argued and briefed here were not •saved in the court below.

The evidence in the record clearly established the assault, but there are extenuating circumstances, and we are of the opinion that the judgment should be modified in the interest of substantial justice. It is therefore ordered that the judgment and sentence of one year and one day in the state penitentiary be modified to ninety days in the •county jail of Jefferson county, and as modified the judgment is affirmed.  