Steele Hays, Justice.
Appellant R. M. James, Jr. was charged with possession, delivery and manufacture of a controlled substance and attempted capital felony murder. He was convicted of possession of a controlled substance, delivery of a controlled substance and aggravated assault. He brings this appeal asking reversal on several points.
A confidential informant supplied information that was the basis for a search warrant that produced evidence used by the state. The informant was present when James was arrested and witnessed the incidents that gave rise to the charges for delivery of a controlled substance and attempted capital felony murder, the latter charge based on evidence that when the police officers surrounded James he drew a pistol and grabbed one of the officers. James was subdued before any shots were fired.
James moved for disclosure of the informant’s identity and the motion was denied. Citing Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972), he argues that when an informant is also a witness or participant to the criminal incident, the identity of the informant should be disclosed. Appellant is correct in his statement of the general rule as stated in Bennett, however, this is not a per se rule, but dependent upon the circumstances of each case. This is made clear in Roviaro v. United States, 353 U.S. 53 (1957) cited by Bennett. Roviaro emphasizes the need for “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case...’’ Roviaro at 62.
In Bennett we pointed out that the defendant had denied the accusations of the state, and the testimony of the informants could be relevant in contradiction of the state’s evidence. In the case at bar, we find distinguishing facts. When James moved for disclosure of the informant, his request was supported only by a statement that he was interested in getting the informant’s version of the story. There was no specific contention that it would be helpful to his defense, as in Bennett. See also State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977). Additionally, the prosecution stated it was required to divulge any exculpatory evidence and there was none that the informant could supply. Of significance were the representations of the prosecution that the informant had been threatened and his residence destroyed by fire. There were no such countervailing considerations in Bennett. Under Roviaro, and our own cases, we cannot say the denial of disclosure in this case was error.
James next sees error in the trial court’s refusal to suppress evidence which was taken at night allegedly in violation of A.R.Cr.P. Rule 13.2 (c). The rule requires searches to be made between 6:00 a.m. and 8:00 p.m. unless within the stated exceptions. The search of the White Oak Gun Club, managed by James, and of his adjacent residence, began at 7:10 p.m. when an officer displayed the warrant to workers at the Gun Club and took control of the building. Before continuing the search, however, one of the officers returned to the judge who had issued the warrant to have the affidavit amended to include a controlled buy recently made from James. The warrant was reissued at 9:12 p.m. The officer returned to the Gun Club to conduct the search and the search was concluded by 10:40 p.m. James does not allege nor does it appear that the search warrant was deficient before it was amended. The officer testified he believed the original warrant was sufficient but the amendment would add more credibility to the warrant.
Although we found a related nighttime search unreasonable in State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980), we find that case distinguishable. The search here was actually commenced at a permissible time, 7:10 p.m., with an apparently sufficient warrant. Only an abundance of caution by the officer caused the delay. In Broadway, a warrant was issued in the early evening and the search did not begin until 9:15 p.m. A.R.Cr.P. Rule 16.2 (e) requires suppression of the evidence only if the violation is substantial. In Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), we found accumulation of deficiencies to amount to a violation of A.R.Cr.P. Rule 16.2 (e) and said, “The state has not demonstrated a reasonably good faith effort was made to comply with the rules.” All other aspects of the warrant in this case are proper and the officers here additionally demonstrated their good faith by their efforts to make certain that the warrant was properly substantiated. Under the circumstances presented here we cannot say the violation was substantial.
James also submits the search warrant was deficient because the supporting affidavit does not meet the two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964).1 Under Aguilar the warrant must state: 1) underlying circumstances from which the informant concluded the items to be seized would be there; 2) underlying circumstances showing the informant to be reliable. The appellant challenges only the second prong of Aguilar, reliability of the informant.
There is no fixed formula to make this determination and we have considered several measures by which the informant’s reliability may be established. See Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977); State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977). Criteria pertinent to this case are: information within the knowledge of affiant furnishing corroboration of the informant’s disclosures, Baxter at 309, and recent and personal observations by informant of criminal activity. Lechner at 406.
In the warrant in question, the affiant stated that: the informant had established his reliability; all information provided by the informant had been determined by the affiant to have a basis and foundation in fact; at the request of affiant the informant had obtained marijuana samples from James which the informant said were taken from James’ property; the informant related that there were large quantities of marijuana on the property; the informant had told affiant that he was employed as a laborer on James’ premises and the affiant had seen the informant there on at least one occasion; an undercover agent related to affiant that he, accompanied by informant, had made a recent buy of what was understood to be marijuana from James. The foregoing is not just a bare statement by the affiant of the informant’s reliability, but a statement of corroboration and support of the informant’s disclosures. We find from the above statements sufficient basis for finding the informant reliable.
In appellant’s fourth argument he claims the court committed error by commenting on a factual matter in the presence of the jury.
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Steele Hays, Justice.
Appellant R. M. James, Jr. was charged with possession, delivery and manufacture of a controlled substance and attempted capital felony murder. He was convicted of possession of a controlled substance, delivery of a controlled substance and aggravated assault. He brings this appeal asking reversal on several points.
A confidential informant supplied information that was the basis for a search warrant that produced evidence used by the state. The informant was present when James was arrested and witnessed the incidents that gave rise to the charges for delivery of a controlled substance and attempted capital felony murder, the latter charge based on evidence that when the police officers surrounded James he drew a pistol and grabbed one of the officers. James was subdued before any shots were fired.
James moved for disclosure of the informant’s identity and the motion was denied. Citing Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972), he argues that when an informant is also a witness or participant to the criminal incident, the identity of the informant should be disclosed. Appellant is correct in his statement of the general rule as stated in Bennett, however, this is not a per se rule, but dependent upon the circumstances of each case. This is made clear in Roviaro v. United States, 353 U.S. 53 (1957) cited by Bennett. Roviaro emphasizes the need for “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case...’’ Roviaro at 62.
In Bennett we pointed out that the defendant had denied the accusations of the state, and the testimony of the informants could be relevant in contradiction of the state’s evidence. In the case at bar, we find distinguishing facts. When James moved for disclosure of the informant, his request was supported only by a statement that he was interested in getting the informant’s version of the story. There was no specific contention that it would be helpful to his defense, as in Bennett. See also State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977). Additionally, the prosecution stated it was required to divulge any exculpatory evidence and there was none that the informant could supply. Of significance were the representations of the prosecution that the informant had been threatened and his residence destroyed by fire. There were no such countervailing considerations in Bennett. Under Roviaro, and our own cases, we cannot say the denial of disclosure in this case was error.
James next sees error in the trial court’s refusal to suppress evidence which was taken at night allegedly in violation of A.R.Cr.P. Rule 13.2 (c). The rule requires searches to be made between 6:00 a.m. and 8:00 p.m. unless within the stated exceptions. The search of the White Oak Gun Club, managed by James, and of his adjacent residence, began at 7:10 p.m. when an officer displayed the warrant to workers at the Gun Club and took control of the building. Before continuing the search, however, one of the officers returned to the judge who had issued the warrant to have the affidavit amended to include a controlled buy recently made from James. The warrant was reissued at 9:12 p.m. The officer returned to the Gun Club to conduct the search and the search was concluded by 10:40 p.m. James does not allege nor does it appear that the search warrant was deficient before it was amended. The officer testified he believed the original warrant was sufficient but the amendment would add more credibility to the warrant.
Although we found a related nighttime search unreasonable in State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980), we find that case distinguishable. The search here was actually commenced at a permissible time, 7:10 p.m., with an apparently sufficient warrant. Only an abundance of caution by the officer caused the delay. In Broadway, a warrant was issued in the early evening and the search did not begin until 9:15 p.m. A.R.Cr.P. Rule 16.2 (e) requires suppression of the evidence only if the violation is substantial. In Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), we found accumulation of deficiencies to amount to a violation of A.R.Cr.P. Rule 16.2 (e) and said, “The state has not demonstrated a reasonably good faith effort was made to comply with the rules.” All other aspects of the warrant in this case are proper and the officers here additionally demonstrated their good faith by their efforts to make certain that the warrant was properly substantiated. Under the circumstances presented here we cannot say the violation was substantial.
James also submits the search warrant was deficient because the supporting affidavit does not meet the two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964).1 Under Aguilar the warrant must state: 1) underlying circumstances from which the informant concluded the items to be seized would be there; 2) underlying circumstances showing the informant to be reliable. The appellant challenges only the second prong of Aguilar, reliability of the informant.
There is no fixed formula to make this determination and we have considered several measures by which the informant’s reliability may be established. See Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977); State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977). Criteria pertinent to this case are: information within the knowledge of affiant furnishing corroboration of the informant’s disclosures, Baxter at 309, and recent and personal observations by informant of criminal activity. Lechner at 406.
In the warrant in question, the affiant stated that: the informant had established his reliability; all information provided by the informant had been determined by the affiant to have a basis and foundation in fact; at the request of affiant the informant had obtained marijuana samples from James which the informant said were taken from James’ property; the informant related that there were large quantities of marijuana on the property; the informant had told affiant that he was employed as a laborer on James’ premises and the affiant had seen the informant there on at least one occasion; an undercover agent related to affiant that he, accompanied by informant, had made a recent buy of what was understood to be marijuana from James. The foregoing is not just a bare statement by the affiant of the informant’s reliability, but a statement of corroboration and support of the informant’s disclosures. We find from the above statements sufficient basis for finding the informant reliable.
In appellant’s fourth argument he claims the court committed error by commenting on a factual matter in the presence of the jury. When reference to a confidential informant was made by one of the attorneys, the court admonished the jury not to rely on that information or to let it influence their decision in any way and that the identity of the informant had no probative value. James argues that these remarks amounted to comments on matters of fact, contrary to Art. 7 § 23 of the Arkansas Constitution, by invading the province of the jury, the sole judge of credibility of witnesses.
We find no error in the court’s comments. The remarks went only to the relevancy of the evidence, which is a determination to be made by the court. Unif. R. Evid. 104. The credibility of the witness was never at issue and was not ruled upon by the court.
Appellant next contends that the trial court erred by instructing the jury that aggravated assault was a lesser included offense to the charge of criminal attempt to commit capital murder. We find no error.
Ark. Stat. Ann. § 41-105 (2) (c) states:
A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) *
(b) *
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
The commentary to the statute states that this test for a lesser included offense provides for lesser offenses within the same generic class, so, for example, second degree battery is an included offense of first degree battery and manslaughter is an included offense of murder.
Before our present criminal code was adopted in 1976, attempt crimes were denominated as assault crimes, which the Commentary to § 41-105 points out. We traditionally found degrees of assaults of a given crime within the same generic class, Wills v. State, 193 Ark. 182, 98 S.W.2d 72 (1936), and a lower degree as an included offense of the higher. Simple assault was an included offense of assault with intent to rape. Wills v. State, supra; Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974). Aggravated assault was an included offense of assault with intent to kill. Sharpensteen v. State, 220 Ark. 839, 250 S.W.2d 334 (1952); Browning v. State, 233 Ark. 607, 346 S.W.2d 210 (1961).
The new code includes a general attempt statute, § 41-701, and eliminates many of the older assault statutes, e.g. assault with intent to kill, assault with intent to rape, assault with intent to rob, etc. See Ark. Stat. Ann. § 41-701, Commentary. The code now contains only four assault statutes, Ark. Stat. Ann. § 41-1604 — § 41-1607, and they are graded from aggravated assault down through assault in the third degree. Although the wording of these statutes differs somewhat from the statutes they replaced, [see § 41-1601, Commentary], there is nothing in the language that would dictate a change from our former approach of finding a lower degree of assault as a lesser included offense of an attempt crime of an assaultive nature. Additionally, the Commentary to Ark. Stat. Ann. § 41-1601 indicates that assault retains the same character under the new criminal code as it had under previous law and changes that were made have no bearing on lesser included offenses nor were the changes meant to alter any prior law in that area.2 See also § 41-701, Commentary. Under the new code then, the lower degrees of an attempt crime are found within the assault statutes and are within the same generic class as attempt crimes, as in this case, where aggravated assault was held to be a lesser included offense of attempted capital murder. The trial court ruling in this case was correct under prior law and under our present law, which law has not been substantively changed by the criminal code.
The appellant next argues without authority that he was denied his fifth amendment rights under the United States Constitution, that he not be compelled in any criminal case to be a witness against himself. He was charged with several counts of possession, delivery and manufacture of a controlled substance and one count of criminal attempt to commit capital murder. He made a motion to limit cross-examination by the state to the offenses for which he would choose to testify. The motion was denied and he chose not to testify at all. But we said in Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975): “Where an accused takes the stand in his own behalf he subjects himself to the same rules of cross-examination as any other witness.” Although there appears to be some criticism of this approach to the problem, this is also the current approach and general rule in other jurisdictions.3
In appellant’s final point he argues that under Art. 2 § lOof theArkansas Constitution andArk. Stat. Ann. §43-2133, the trial of a defendant should be heard in the county in which the crime was committed and the state in its case failed to prove this jurisdictional fact, citing Ward v. State, 77 Ark. 19, 90 S.W. 619 (1905). Appellant’s argument is readily answered by subsequent developments in the law. Ark. Stat. Ann. § 43-1426 provides for presumption of venue unless the evidence affirmatively shows otherwise. See Johnson v. State, 254 Ark. 703, 495 S.W.2d 845 (1973); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972).
Affirmed.
Adkisson, C.J., not participating. Hickman, J., concurs. Purtle, J., dissents.