BOBBITT, J.
Appellant was charged by affidavit in two counts; tried by jury; and found guilty of assault under Count No. 1, and as charged in Count No. 2. Count No. 1 charged assault and battery with intent to commit murder under Acts 1927, ch. 203, § 2, p. 580, being § 10-401, Burns' 1956 Replacement; and Count
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