¶1At the April term, 1899, of the Howard Circuit Court, defendant was indicted for assault with intent to kill in one count, and in another for felonious maiming. He was convicted on first count, and sentenced to the penitentiary. He appeals.
¶2The evidence discloses that Daniel Metcalf was marshal of the town of Eoanoke, in Howard county, and on the evening of December 24, 1898, he was assaulted by the defendant with some dangerous instrument, and knocked senseless. Defendant was firing off a pistol in the public streets and the marshal went up to him and told him that the shooting on the street must be stopped, and took hold of his arm or coat sleeve, whereupon defendant struck him over the head with the pistol or other blunt instrument, knocking him down and rendering bfm insensible. The defendant then fled, but was arrested later that night, but released by the deputy. . He then left the county and was gone until 'the next spring. The def ense was that Sam Pitts, another negro, and not defendant, made the assault.
¶3Various errors are assigned in the brief.
¶4The motion for new trial contained only two grounds, namely, that the verdict was against the evidence, and against the instructions.
¶5There was ample positive evidence that defendant committed the assault, and the verdict will not be disturbed on this ground.
¶6The questions now raised for the first time, that the court should have instructed on self-defense can not be considered *249because no sucb instruction was asked by defendant, neither was there any objection or exception taken to the failure of the court to instruct on all questions of law raised by the evidence. Equally unavailing is the point that the court improperly excluded certain evidence, as no such point is made in the motion for new trial.
¶7The discussion of the instruction on 'the second count of the indictment is entirely irrelevant, as the jury acquitted the defendant on' the second count, and it is immaterial how erroneous the instruction as to that count may have been.
¶8The indictment is sufficient, and the verdict having met the approval of the circuit court, will not be disturbed on the mere weight of the testimony.
¶9The judgment is affirmed.