
    26846.
    Dean v. The State.
    Decided April 28, 1938.
    
      J. L. Smith, for plaintiff in error.
    
      William Y. Atkinson, solicitor-general, Willis Smith, contra.
   Bkoyues, C. J.

1. The accused was indicted for an assault with intent to murder, and was convicted of unlawfully shooting at another. Complaint is made in a ground of the motion for new trial that the judge failed to charge the jury certain principles of law relating to the offense of an assault with intent to murder (said principles being set forth in the ground). Under repeated decisions of the Supreme Court and of this court, where one is convicted of a lesser offense than that' charged in the indictment, an error of commission or of omission in the charge upon the greater offense is harmless error.

2. The excerpt from the charge upon the law of justifiable homicide (eomr plained of in the other special ground of the motion for new trial), while somewhat confused, was more harmful to the State than to the accused; and, when considered in the light of the charge as a whole and the facts of the case, does not require a reversal of the judgment.

3. The evidence, while conflicting, authorized the verdict.

Judgment affirmed.

MacIntyre am,d Querry, JJ., concur.  