¶11. The ground of the motion for a new trial complaining of the rejection of certain evidence is without merit, since the identical evidence is included in the brief of evidence transmtted to this court.
¶22. Under the evidence adduced and the defendant’s statement at the trial, there were legally possible only three verdicts, to wit, guilty of an assault with intent to murder, guilty of unlawfully shooting at another, *21or an acquittal. Therefore the court did not err in failing to instruct the jury upon the law of assault and battery, or upon “the grade of simple assault,” as complained of in the motion for a new trial.
¶33. The remaining special grounds of the motion for a new trial are without merit.
¶44. The evidence amply authorized the verdict.
¶5Judgment affirmed.