This appeal was beard and decided at a former session of tbe present term. Tbe defendant bad been tried in tbe lower court upon an indictment charging him with assault upon one John Pitt with intent to murder, and bad been found guilty of a battery. Upon tbe trial tbe court bad charged tbe jury that they might find tbe defendant guilty of a battery under tbe indictment, if they so believed beyond a reasonable doubt. To this portion of tbe charge tbe defendant bad excepted, and desired to assign tbe giving of it as error. But tbe charge to tbe jury was not found in tbe record, and the court refused to consider tbe exception. Appellant’s counsel insists upon a rehearing, for tbe reason tbe argument was not beard upon that point. A party must preserve in the record any ruling of tbe trial court, whether made upon an objection to evidence or in charging tbe jury, if be wishes to rely upon tbe same as error.

Tbe point, however, that tbe defendant should not have been found guilty under tbe indictment of a battery was considered under tbe error alleged in overruling tbe motion for anew trial. Tbe court said: “Counsel for tbe defendant also urges that tbe jury was not authorized to find tbe defendant guilty of a battery upon tbe indictment upon which be was tried. It is alleged in tbe indictment that tbe defendant, with a pistol loaded with gunpowder and bullets, in and upon one John Pitt made an, unlawful and *275felonious assault, and did sboot off one of the bullets at and against the person of the said John Pitt. A battery is any willful and unlawful use of force or violence upon the person of another. Comp. Laws Utah, 1876, p. 592. The indictment describes a battery as defined in the statute. It was stated that the assault was upon Pitt, and that the bullet was shot at and against his person. Section 301, Laws Utah, 1878, provides that ‘the jury may find the defendant guilty of an offense, the commission of which is necessarily included in that with which he is charged.’ While an assault with intent to murder might be charged without describing a battery, this charge does include that offense. The acts constituting the crime as charged in the indictment include those essential to the description of a battery. At common law there could be no conviction for a misdemeanor on any indictment for a felony. The reason upon which the rule was established, was that persons indicted for a misdemeanor had certain advantages at the trial, such as to make a full defense by counsel, and to have a copy of the indictment, and a special jury, which advantages were not then permitted, under indictments for felony. Such reasons do not exist in this territory, and we therefore disregard the rule. When a minor offense is included in a greater, the defendant may be acquitted of the latter, and convicted of the former, unless the allegation is in a form not charging the lower. Bish. Crim. Law, Sections 780, 794, note; Whart. Crim. Law, Sections 616, 617.”

The motion for a rehearing is denied.