OPINION
BELCHER, Judge.
The offense is assault with intent to murder with malice; the punishment, five years.
The trial was before the court without the intervention of a jury.
The first ground of error is that there is a fatal variance between the indictment which alleged that the appellant, with malice, shot Pat Gooden with a pistol with the intent to murder him and the evidence which fails to show that he shot him.
The testimony...
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