The offense is assault to murder; punishment fixed at confinement in the penitentiary for a period of six years.

The State relied almost entirely upon the testimony of the injured party, Abe Roberts, for the conviction of the appellant.

The controverted question is that of malice and intent. In support of the theory that the injury was accidentally inflicted, evidence of the declarations of Roberts, which he denied making, was introduced by the defense. It was developed upon the motion for new trial by way of newly discovered evidence that Roberts was an unpardoned convict. The diligence to discover this is not as strong as might be desired but the appellant tried his own case without counsel. His conviction rests upon the testimony of a witness who, by statute, was prohibited from giving evidence. The penalty is more than the minimum. An affirmance of the judgment of conviction by this court under the circumstances would, in our opinion, be manifesting an injustice to the accused. Barber v. State, 223 S.W. Rep. 457.

The State's Attorney before this court concedes that the conviction should not stand. We are of the same opinion.

The judgment is reversed and the cause remanded.

Reversed and remanded. *Page 212