Under an indictment charging assault with intent to murder, Adam Smith was convicted of the offense of shooting at another. He made a motion for a new trial, which was overruled hy the trial judge. Smith excepted.
1. The only special ground of the motion for new trial complained that the court erred “in failing to cover, in his charge to the jury, the theories of defendant’s statement, in this: the defendant’s statement shows that at the time of the assault defendant had been informed that the prosecutor was attempting to arrange a secret meeting in the dark with the defendant’s wife, [and] the court, while giving in charge one theory raised by defendant’s statement, to wit, that of self-defense, failed to give in the charge the theory that he shot in .defense of an attempt on the part of the prosecutor to invade his marital rights; this theory being as distinctly raised by defendant’s statement as that of self-defense, which the court gave in charge.” This theory of defense, in reference to which no instructions were given to the jury, arose solely from the prisoner’s statement, and not from the evidence, and there was no request to charge on the subject. “ It has been repeatedly held that, in the absence of a proper written request, it is not error to
2. It was contended here that the verdict was not supported by the evidence, in that, while it was established that the accused shot a pistol, it did not appear that he aimed at or tried to hit the prosecutor. We have carefully read the record, and find therein evidence clearly authorizing a finding, not only that the accused shot, but that he shot at the prosecutor and tried to hit him.
Judgment affirmed.