
    Ed Daniels v. The State.
    No. 2908.
    Decided December 23, 1913.
    Assault to Murder—Statement of Facts—Intent to Bob—Carving.
    Where appellant complained of the court’s refusal to submit his requested charge to acquit the defendant if he acted with intent to rob, there was no error in refusing the same, on-trial of assault to murder, even if the evidence showed an assault with intent to rob, as the State had the right to carve; besides, in the absence of a statement of facts, this complaint can not be reviewed on appeal.
    Appeal from the District Court of Jefferson. Tried below before the' Hon. John M. Conley.
    Appeal from a conviction of assault to murder; penalty, twenty years imprisonment in the penitentiary.
    The opinion states the case.
    No brief on file for appellant.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   HARPER, Judge.

Appellant was prosecuted and convicted of making an assault with the intent to murder J. T. Lavery by then and there laying 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 can not 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.

Affirmed.

DAVIDSON, Judge, absent.  