¶1 The offense is murder; penalty assessed at confinement in the penitentiary for three years.
¶2 Upon an indictment charging murder with malice aforethought, the appellant was convicted of murder without malice.
¶3 This is the second appeal. The evidence adduced in the present case is not materially different from that which is- adequately stated in the opinion on the former appeal. See Johnson v. State, 95 S. W. (2d) 968. A repetition of the evidence is not thought necessary; suffice it to say that the fact's are deemed sufficient to support the conviction.
¶4 The rights of the appellant were fully protected in the *527 charge of the court against which no objection was addressed.
¶5 ' In his motion for new trial appellant complains of certain misconduct of the jury in their deliberation. In overruling the motion the trial judge states that evidence was heard thereon. In the absence of such evidence this court must presume that the trial judge did not abuse the discretion vested in him by law.
¶6 Perceiving no error justifying a reversal, the judgment is affirmed.
¶7 Affirmed.