Appellant was convicted of an aggravated assault and battery under an indictment charging assault to murder, and his punishment assessed at a fine of $600 and twelve months imprisonment in the county jail.

The motion for new trial alleges that the evidence is not sufficient to support the verdict of the jury and the judgment of the court thereon. It also alleges error in refusing to give certain instructions as well as error in the charge given by the court. The charge as given is predicated upon a state of facts which could be proved under the allegations in the indictment. The evidence not being before us we are unable to review the questions, and the judgment will be affirmed.

Affirmed. *Page 445