Appellant complains only of our opinion on the ground that we erred in holding the testimony sufficient to support the conviction. The Court below told the jury that if they believed from the evidence beyond a reasonable doubt that appellant with a deadly weapon, and with malice aforethought assaulted one Graves with intent then and there to kill him, he should be convicted of assault to murder. The court defined a deadly weapon, also malice aforethought, in a manner acceptable to appellant. No fault being found with these definitions, there remained but the fact issues for the jury to determine, viz: whether the assault was made with a deadly weapon, also whether it was made upon malice aforethought. When fact issues are properly submitted in the charge of the court, unless the evidence be so scant as to manifest that the verdict is the result of passion or some other than a fair consideration of the testimony, this court would not hold the evidence insufficient, or so as to cause a reversal. According to the State's testimony appellant made an assault without provocation, — save that Graves interrupted appellant while on the ground with a woman, — and cut Graves with a knife having a blade three inches long. Not only did he make a gash seven inches long on the body of Graves, but made other efforts to cut him, and also to cut one Redding who came to Graves' assistance. We are entirely unable to agree with appellant that the record is bare of facts supporting the finding of the jury upon the two fact issues above mentioned.
The motion for rehearing is overruled.
Overruled. *Page 321