
    [No. 18739.
    Department One.
    December 9, 1924.]
    The State of Washington, Respondent, v. E. H. Smith, Appellant. 
      
    
    Criminal Law (441) — Appeal—Review—Verdicts. Where the material facts are supported by the evidence and the trial judge refused to grant a new trial, the verdict is conclusive on the appellate court.
    Appeal from a judgment of the superior court for King county, Chapman, J., entered December 15,1923, upon a trial and conviction of second degree assault.
    Affirmed.
    
      H. W. Powell and William A. Gilmore, for appellant.
    
      Malcolm Douglas and T. H. Patterson, for respondent.
    
      
       Reported in 239 Pac. 822.
    
   Pemberton, J.

Appellant was found guilty by a jury of the crime of assault in the second degree, the charging part of the information being as follows:

“Said'E. H. Smith, in the county of King, state of Washington, on the 18th day of October, A. D. 1923, wilfully, unlawfully and feloniously did make an assault upon one J. P. Kidney with a certain metal instrument, the exact name and nature of which is to affiant unknown, the said metal instrument being then and there a weapon and instrument likely to produce bodily harm, which he, said E. H. Smith then and there had and held, and then and there, wilfully, unlawfully, and feloniously, with said metal instrument did heat, touch, strike, and wound said J. P. Kidney.”

It is the contention of appellant that “the verdict was clearly contrary to all the testimony and showed that the jury had reached its conclusion of guilt by prejudice.”

Were the testimony of the appellant and his witnesses the only testimony in the case, there is no question hut what the complaining witness was the aggressor, instead of appellant, and he was not guilty of the offense charged. We find, however, that this is not the only testimony in the case. A. it. Frazier, one of the witnesses for the state, testified that he saw appellant strike Mr. Kidney with the iron. He testified as follows:

“How many blows did you see struck? A. I seen two, —that one blow and one jah. Both was done with some kind of an iron.”

The witness also stated to appellant at that time, “Don’t you know it is a penitentiary offense to hit a man with a thing like that?”

There is no question hut what, under the law in this state, the weight of the evidence is for the jury; and when the material facts necessary to he shown are supported by the evidence and the trial court has refused to grant a new trial the verdict is conclusive and cannot he set aside by an appellate court. State v. Chittenden, 111 Wash. 213, 190 Pac. 232; State v. Lance, 94 Wash. 484, 162 Pac. 574.

The judgment is affirmed.

Main, C. J., Parker, Tolman, and Bridges, JJ., concur.  