It is very earnestly insisted in this case that we erred in holding the evidence sufficient to sustain the judgment, the principal ground of such insistence being that the transaction involving the homicide arose apparently without any evil purpose on the part of appellant, and that the events moved so swiftly that the conclusion that he was actuated by malice aforethought in what he did, would not be supported by the testimony. It is also urged that the conclusion that deceased was running away from appellant when the shooting took place, was not sustained because of the fact that the witnesses testified that the deceased was shot in the face. The record discloses the testimony of three eyewitnesses, and an examination of one of them reveals the fact that he testified both on direct and cross-examination that as deceased was fleeing from appellant, he looked back and just as he looked back appellant fired. This would fully account for the fact that deceased was shot in the face. All of the witnesses besides appellant testified to the fact that deceased was trying to make his escape from appellant who pursued and shot him, thus causing his death. We think the facts justified the jury in concluding malice aforethought to have appeared from the evidence. Without discussing the question of former differences and some feeling manifested between deceased and appellant, the evidence, aside from that of appellant himself, showed that just prior to the killing and because of sharp words between himself and appellant, deceased went into his house and got his gun and came out; that when he reached the outside of said house deceased was grappled by his *Page 455 father who endeavored to take the gun away from him; that while deceased and his father were scuffling over the gun appellant approached and himself snatched the gun away; that when this occurred deceased ran and was pursued by appellant and shot as he was trying to make his escape. It is so well settled by the decisions of this court that malice requires no specific length of time for its germination or growth, and that it can arise any instant, that we are not inclined to discuss or further speculate upon a matter that was fairly submitted to the jury and by them decided adversely to appellant's contention. We have examined the authorities submitted by able counsel for appellant in his supplemental argument in support of his motion for rehearing, but are unable to find anything in them contrary to what we have above expressed, and the motion will be overruled.
Overruled.