
    Jodie Dennis v. The State.
    No. 13285.
    Delivered April 23, 1930.
    Rehearing denied May 28, 1930..
    Reported in 28 S. W. (2d) 149.
    The opinion states the case.
    
      D. T. Moore of Hillsboro, for appellant.
    
      A. A. Dawson, State’s Attorney, of Austin, for the State.
   MARTIN, Judge.

Offense, assault to murder; penalty, four years in the penitentiary.

The only question presented for review is the alleged insufficiency of the evidence. For the State it was shown that appellant and the injured party were co-tenants on the same place, and that appellant shot prosecuting witness Barnhart with a shotgun at a distance of twenty-six feet without cause or provocation; that some of these shots penetrated the body of said Barnhart and inflicted on him serious bodily injury.

Believing the evidence sufficient, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

It is strenuously insisted that the evidence is insufficient to show an intent to kill on the part of appellant. He testified that he stood within ten or twelve steps of Barn-hart and aimed at his left side with a gun loaded with No. 4 shot, a number of which struck Barnhart, — but that his intent was only to scare and not to injure. There were four other eye-witnesses to the transaction beside appellant. They testified that Barnhartdid nothing indicating any purpose on his part to attack appellant; that Barnhart had no weapon of any kind that any of them saw, or the use of which was indicated by any movement or gesture of Barnhart. Two defense witnesses said that appellant stated to Barn-hart that he was tired of his cursing and running over him, and that appellant then raised his gun and fired. We think the jury fully justified in concluding that appellant intended to kill Barn-hart.

The motion for rehearing is overruled.

Overruled.  