¶1— The indictment in this cause is framed on section 1262, Revised Statutes, 1879, and ■charges an assault with intent to kill, made with a pistol. On being tried, the defendant was found guilty, and his punishment assessed at two years imprisonment in the penitentiary. The defendant is not represented in this *628court by counsel, but in discharge of the duty imposed by the statute, we have 'carefully examined the record and find no error therein.
¶2I. The evidence abundantly establishes the charge contained in the indictment of a felonious assault with an intent to kill, and it is. plain from that evidence that it was no fault of the defendant that his murderous purpose was not accomplished when he shot Allen.
¶3II. The indictment is in all respects sufficient, and conforms to the section of the statute on which it is-bottomed.
¶4III. The instructions given on behalf of the state, and those on the part of the defendant, fully embraced all the law of the case, and there was no error in failing to instruct that the defendant might be awarded aless degree of punishment than that of imprisonment in the penitentiary. The section already referred to fixes the punishment at imprisonment in the penitentiary for a period not exceeding ten years, and this settles the matter-This view is also confirmed by section 1268, which pre scribes the punishment to be inflicted in cases not provided for in section 1262.
¶5Holding these views, the judgment must be affirmed.
¶6Dissenting. — The second instruction given for the state I think erroneous, and, therefore, do not concur in the foregoing opinion.