
    S. E. PECK v. STATE.
    No. A-1542.
    Opinion Filed June 7, 1913.
    Appeal from Blaine County Court; George W. Ferguson, Judge.
    S. E. Peck was convicted of assault, and appeals.
    Appeal dismissed.
    D. K. Cunningham, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was tried and convicted upon an information charging him with assault, and in accordance with the verdict of the jury was sentenced to pay a fine of five dollars and costs. To reverse the judgment an appeal was taken to this court. Plaintiff in error now files a motion to v dismiss his appeal. Prom this motion it appears that while the appeal was pending in this court a motion for a new trial was made, upon the ground of newly discovered evidence, under that provision of Procedure Criminal (sec. 5938, Rev. Laws 1910) w'hich provides that:

“A motion for a new trial on the ground of • newly discovered evidence may be made after judgment at the term at which the case was tried, or in vacation, before the judge or at the next term of court.”

And that a new trial was granted. Attached to the motion to . dismiss is a certified copy of the order awarding a new trial. The motion to dismiss said appeal is granted and the appeal is dismissed.  