Defendant’s primary assignment of error is directed to tbе refusal of tbe court to dismiss on motion made under G. S., 15-173, C. S., 4643. Hе insists there was insufficient evidеnce of tbe identity of tbe defendant. In tbis we are unable to concur.
Tbe defendant was definitely identifiеd by two witnesses as tbe person who was in front of tbe building at tbe time tbe shot was fired. Hе bad a gun. No one else was there. He bad just a few minutes before avowеd bis purpose to “get еven with Sarge.” Thus tbe testimony tends to show. Tbis evidence wаs amply sufficient to repel tbe motion to dismiss and to sustain tbe verdict. Its credibility wаs for tbe jury.
Tbe other exceptive assignments of еrror are directed tо alleged error in tbe сharge of tbe court. After careful consideration we are unable tо find in them any cause for disturbing tbе verdict.
Tbe court instructеd tbe jury that they might return any onе of three verdicts: (1) guilty of аn assault with a deadly weаpon with intent to kill, inflicting seriоus injury, not resulting in death, or (2) guilty of an assault with a deadly weаpon, or (3) not guilty. It fully explained tbe constituent elements of each of tbе two offenses.
There is very slight, if any, evidence of serious injury within tbe meaning of tbe stаtute. Thus, if there was error in tbe instructions, -it rests in tbe fact that tbe court submitted tbe felony charge to tbe jury. Even sо, on this count there was а verdict of not guilty. Hence defendant has not been prejudiced thereby.
In tbe trial below we find
No error.