
    26206.
    Wages et al. v. The State.
   MacIntyre, J.

1. The evidence supported the verdict finding Pete Wages and Carl Hayne guilty of assault and battery under an indictment charging them with assault with intent to murder.

2. The charge to the jury, that the defendants “enter upon their trials with the presumption of innocence, and that presumption remains with them until their guilt is established beyond a reasonable doubt,” was not, in the absence of any request for further instructions, reversible error because it “did. not charge that this presumption was a presumption of innocence in behalf of the defendants, and that such presumption remained with them and in their behalf in the nature of evidence until overcome by evidence which satisfies their minds beyond a reasonable doubt.” Hayes v. State, 18 Ga. App. 68 (4) (88 S. E. 752); Solomon v. State, 44 Ga. App. 755 (2) (162 S. E. 863).

Decided September 9, 1937.

W. L. Nix, for plaintiffs in error.

Frank Simpson, solicitor-general, E. J. Glower, contra.

3. In the absence of a timely written request, the court did not err in failing to give in charge to the jury the following: “I charge you that the defendants enter upon their trial with a presumption of innocence in their behalf, and this presumption remains .with them throughout the trial and until overcome by evidence which satisfies your minds beyond a reasonable doubt of their guilt.”

4. There being testimony to support the charge upon the law of conspiracy, the court did not err in charging that law, and the charge was not erroneous either because it “gave to the jury a theory upon which they could find a verdict of guilty that was not alleged in the indictment,” or because it was in effect “a1 direction to the jury that they should find either of the defendants guilty of any act committed by the other, whether such defendant actually participated in the act or not.”

5. The conviction of the defendants of assault and battery acquitted them of the greater offense of assault with intent to murder, with which they were charged; and the alleged error in the court’s instructions upon assault with intent to murder is no cause for a new trial. Munroe v. State, 53 Ga. App. 324 (2) (185 S. E. 573); McDuffie v. State, 121 Ga. 580 (14) (49 S. E. 708).

Judgment affirmed.

BroyVes, O. J., and Guerry, J., concur.  