The defendant was indicted for and convicted of assault with intent to murder, and the only questions raised by the record relate to the action of the trial court in refusing three written charges requested by him.
The first two- are practically indentical and assert:
“That under the evidence in this case, the jury may [says one] or have a right [says the other] in their discretion to find defendant guilty of assault and battery with a weapon.”
If the jury believed from the evidence, beyond a reasonable doubt, that the defendant, in committing the assault, had an intent to murder, and acted not in self-defense, then the jury was without right or discretion to find him guilty of a less offense, and if they did not believe, beyond a reasonable doubt, that he was guilty of either of the offenses embraced in the charge of the indictment, they were-without right or discretion to con*118Viet him of any offense. Clearly, for this reason as well as others, the court was not in error in refusing either of the charges, neither of which asserted a correct propsition of law, as seen, and both of which invaded the province of the jury, whose function it is to act, not on what the court may believe as to the evidence, but on what they believe.
The other refused charge is as follows:
“The court charges the jury that if, at the time defendant cut Allen, Allen was advancing on the defendant, and defendant at that time was against the wall or so near the wall that he could not retreat without increasing his danger, and was free from fault in bringing on the difficulty, then you should find defendant not guilty.”
Pretermitting the consideration of othero defects, it is sufficient to say that the charge was abstract in that there was no evidence that defendant was against the wall or so near it that he could not have retreated without increasing his danger.
We find no error in the record, and the judgment of conviction is affirmed.
Affirmed.