
    Joseph E. Thurmond, plaintiff in error, vs. The State of Georgia, defendant in error.
    1. This court will not control the court below in the exercise of its discretion in refusing to grant a new trial where no error appears in the charge and the evidence is conflicting, there being enough to sustain the verdict.
    2. Although the solicitor general state to the jury that he will not insist on a verdict of guilty of assault with intent to murder, but assault and battery only, it is not such error in the court to charge the law of assault with intent to murder as to require a new trial, if the verdict be only for assault and battery.
    Criminal law. New trial. Charge of Court. Before Judge Rice. Jackson Superior Court. August Term, 1875.
    A report of this case is unnecessary.
    Floyd & Silman; W. J. Pike, for plaintiff in error.
    Emory Speer, solicitor general, for the state.
   Jackson, Judge.

The evidence in this case is quite conflicting, but there is enough to sustain the verdict. This court will not therefore interfere.

All the errors of law alleged have been considered in the preceding case to arrest the judgment, except the charge of the court in respect to an assault with intent to murder, after the solicitor general had stated that he would only insist on a conviction for assault and battery. If the verdict had been for an assault with intent to murder, there would be something in this assignment of error, because counsel for the defense might have been thrown off their guard and been prevented from arguing that charge in the indictment by the statement of the solicitor; but as the verdict is only assault and battery, we cannot see how the defendant was hurt by this charge of the court.

Judgement affirmed.  