Appellant insists that we erred in not holding the evidence insufficient to support a conviction for assault to murder. We have again reviewed the testimony. Following some trouble with prosecuting witness appellant left a dance, went away, got a shotgun, came back and shot prosecutor. He lived about a mile distant from the home of prosecutor at which the dance was in progress. When he got back with the shotgun his first words were an inquiry for "that bully." In his own testimony appellant said that Grant, the injured party, replied, "Here is that damned bully," and started toward him. In a rather confused explanation of what then occurred appellant said that Grant caught hold of the muzzle of the gun and that he, appellant, shot Grant "so he could get loose and run." The evidence seems to us to amply support the theory that because of the quarrel with Grant appellant went away, got his shotgun and came back and with no further provocation shot Grant in the shoulder. This would seem to support the jury's conclusion that the shooting was upon malice and with intent to kill. The verdict of the jury cannot be attacked by the character of affidavit made by one of the jurors in this case. Without giving the statement of any of the jurors, he says in his affidavit that they did not want to find the accused guilty of aggravated assault because he might have to lay out or work out his fine at the expense of the county and that they concluded to find him guilty of assault to murder. Turner v. State, 61 Tex.Crim. Rep.; Bacon v. State, 61 Tex. Crim. 206; Patterson v. State, 63 Tex.Crim. Rep.; McCulloch v. State, 35 Tex.Crim. Rep.; Hamilton v. State,64 Tex. Crim. 966; Gonzales v. State, 88 Tex.Crim. Rep., 226 S.W. Rep. 405.
The motion for rehearing will be overruled.
Overruled.