Appellant was prosecuted and convicted of making an assault with the intent to murder J. T. Lavery by then and there laying in wait, etc.

The only ground in the motion for a new trial complains that the court erred in refusing to give a special charge requested in which the court was requested to instruct the jury that if the facts showed that the assault was made with the intent to rob, to acquit. As no statement of facts accompanies the record we can not review this ground, but as the State elected to prosecute for assault to murder, if the facts showed that this offense was in fact committed, the State had a right to carve and elect for which offense it would prosecute.

Affirmed.

Affirmed.

DAVIDSON, Judge, absent.