
    5505.
    Moore v. The State.
    Decided April 18, 1914.
    Indictment for assault with intent to rape; from Bartow superior court — Judge Fite. December 1, 1913.
    Under an indictment charging Moore and Womack with assault with intent to rape, they were tried jointly, and Womack was found guilty of that offense, and Moore was convicted of assault and battery. Moore excepted to the refusal of a new trial. The grounds of the motion for a new trial were, that the verdict was contrary to law and to the evidence, and that “a new trial should be granted for the following reason: Movant and his eodefenclant were jointly indicted for assault with intent to rape, movant being convicted of assault and battery, while his codefendant, 'Womack, was convicted of assault with intent to rape. Movant insists that under no view of the case could movant be convicted legally of a different grade of offense from his codefendant; that under the evidence and charge of the court, if defendants were-acting in concert, they would be guilty of the same offense, and if not acting in concert, then it follows as a matter of law, under the evidence, movant would not be guilty of any offense.”
   Wade, J.

The verdict was authorized by evidence, and, no error of law appearing from the assignments of error, this court will not disturb the discretion of the trial judge in refusing the motion for a new trial.

Judgment affirmed.

Roan, J., absent.

M. B. Eubanks, for plaintiff in error.

Sam P. Maddox, solicitor-general, contra.  