
    Emmett Bolton v. The State.
    No. 16770.
    Delivered May 30, 1934.
    Rehearing Denied (Without Written Opinion) June 27, 1934.
    
      The opinion states the case.
    
      Sanders & McLeroy, of Center, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   LATTIMORE, Judge. —

Conviction for assault to murder; punishment, two years in the penitentiary.

Appellant was found guilty of assault to murder without malice, and his punishment assessed at two years, as above stated. We find in the record no bills of exception. The facts show that appellant and other parties were sitting around on a floor engaged in a game of craps. A lamp was on the floor. The dice were running strongly against appellant, and he demanded to know to whom they belong, and asserted that there was something wrong with them. He picked up the dice, took out his knife and began picking in the eyes of the dice with his knife blade. Booth, to whom the dice belonged, remonstrated, and upon appellant insisting that there was something wrong with the dice, and continuing his effort to dig the eyes out. Booth picked up the lamp and started out with it. Appellant told him to put the lamp down, and Booth placed it on the floor again, testifying that he thought appellant wanted to resume playing, but at this juncture appellant got up, stepped behind Booth, pulled his head to one side and with his knife cut Booth's throat, cutting into the windpipe and barely missing the jugular vein. The doctor who examined Booth testified that it was a serious wound and one which might have killed Booth.

Appellant took the stand and admitted the cutting, and claimed that when Booth got up and picked up the lamp he thought Booth was going to hit him with the lamp. He admitted that Booth placed the lamp back on the floor and that it did not turn over or go out. The reconciliation of questions of fact is for the jury. They have resolved the facts against appellant. We think them justified.

Finding no error in the record, the judgment will be affirmed.

Affirmed.  