
    CARTER v. STATE.
    (No. 5236.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    Homicide <@=230 — Assault to Murder — Evidence — Intent to Kill.
    In prosecution for assault to murder, evidence held sufficient to sustain jury finding that accused, in shooting, intended to kill.
    Appeal from District Court, Cherokee County; Daniel Walker, Judge.
    Tim Carter was convicted of assault to murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder, and given two years in the penitentiary.

The facts show that Singletary and Shaw were playing dominoes. Appellant was requested to keep count of the game, which he did. Singletary lost three games, and accused appellant of keeping a wrong statement, by which Singletary was unjustly declared the loser. This brought sharp words between them, in which Singletary called appellant a son of a bitch, and other opprobrious and indecent language was used, which we deem unnecessary to state. Singletary followed appellant out of the house. Appellant went to his place of residence a short distance away, secured a shotgun, and returned. Singletary was outside of the house in the street, with two other parties, as appellant approached. The testimony is iu conflict as to whether Singletary approached appellant with his hand in his pocket or not. Singletary swears that he did. He is corroborated in this statement by another witness. As Singletary approached appellant, appellant raised his gun, and Single-tary ran, and when he had gone about 25 or 30 steps appellant shot, striking him in the side, knocking him down. The shot were small. Singletary recovered, being in bed only a few days.

There are no bills of exception incorporated in the record. The motion for a new trial was based upon the insufficiency of the evidence to sustain the conviction for assault to murder; the contention being that the facts warranted no higher verdict than aggravated assault and battery. We are of opinion this contention cannot be sustained. The distance between the two parties varied according to the evidence from 10 to 30 steps; the weapon used being a shotgun loaded with small shot. Appellant testified he did not intend to kill. There is no exception to the charge. We are of opinion the evidence was sufficient to justify the jury in coming to the conclusion that appellant did intend to kill. The jury solved the matter, under the charge of the court, against appellant, and we think the testimony justified them in so deciding.

The judgment will be affirmed.  