¶1Defendant was tried for assaulting Alice and Charlotte Rouse by “willfully shooting at them,” and his counsel requested the court to charge the jury:
“If you find, from the evidence in this case, that the accused actually struck the party or parties he is alleged in the indictment to have ■assaulted by willfully shooting at, then your verdict should be not guilty.”
¶2Such charge being refused, a bill of exception was reserved.
¶3We are of opinion that, to justify the reversal of the verdict and sentence appealed from upon the ground stated, it should appear from the record that the. requested ■charge would have been applicable to the fact presented to the jury, which is not the case; the bill of exceptions containing no statement that there was any evidence calling for the charge, and the judge giving no reason for his ruling. It is true that the counsel {both for the defendant and the state) argue the question upon the assumption that two little children, who are said (in the briefs) to have been shot at, were struck by two or three small shot; but we find nothing that amounts to an admission that the shot, or ■either of them, penetrated the persons of the children, or either of them, and we are bound to assume that the judge refused to give the requested charge because he did not •consider that it would be applicable to the facts.
¶4The verdict and sentence appealed from are therefore affirmed.