In his motion for rehearing appellant urges only the fact that the verdict is contrary to the weight of the testimony. We regret our inability to coincide with this contention. Appellant began the difficulty by applying ugly epithets to prosecuting witness. When answered by the statement that he was equally subject to such ugly names, appellant at once made an attack upon prosecuting witness with a green stick, cut for a measuring stick, the size and weight of which was described. Prior to making this attack appellant was up on the bank of a gully or ditch some seven or eight feet above prosecuting witness, who was down in the bed of said ditch. Appellant went down the bank of said ditch and approached prosecuting witness, who made no advance upon him whatever but seems from the testimony of some witnesses to have raised an axe which he had in his hand. Appellant struck prosecuting witness on the head with said stick, bringing him to his knees and then struck him again. The doctor who treated the injuries said that they removed three or four square inches of bone from the skull of the prosecuting witness, and that the blow if upon other parts of the head would likely have been fatal. The only defense offered was that Krull, prosecuting witness, replied to appellant verbal assaults, in kind, and that when appellant went down in the gully and approached Krull, that he raised the axe. These matters were all submitted to the jury. The facts stated make no such case of apparent prejudice on the part of the men sitting in judgment upon appellant's case, nor do they show any lack of facts to justify their conclusion. We do not feel at liberty to overturn verdicts finding as much support in the testimony as the one before us.
Appellant's motion for rehearing will be overruled.
Overruled.