
    DANIELS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1. Criminal Law (§ 1097)—Appeal—Ques-tions Reviewable—Statement oe Facts. In the absence of a statement of facts, the court, on appeal from a conviction of assault with intent to murder, cannot review the refusal to charge that if the assault was made with intent to rob, accused must be acquitted.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2882, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    
      2. Criminal Law (§ 29) — Offenses—Election by State.
    Where the facts showed that accused assaulted prosecutor with intent to murder, by lying in wait, or with intent to rob, the state could elect to prosecute him for assault with intent to murder.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 29.]
    Appeal from Jefferson County Court; John M. Conley, Judge.
    Ed. Daniels was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of making an assault with the intent to murder J. T. Lavery by then and there lying in wait, etc.

The only ground in the motion for a new trial complains that the court erred in refusing to give a special charge requested, in which the court was requested to instruct the jury that, if the facts showed that the assault was made with the intent to rob, to acquit. As no statement of facts accompanies the record, we cannot review this ground; but as the state elected to prosecute for assault to murder, if the facts showed that this offense was in fact committed, the state had a right to carve and elect for which offense it would prosecute.

Affirmed.

DAVIDSON, J., absent.  