Appellant earnestly insists that the evidence fails to show that the instrument used by him in committing the assault was a deadly weapon, or that the wounds inflicted were serious and argues that this being true the conviction for assault with intent to murder cannot be sustained. In most cases of assault with intent to murder reported in the books it will be found either that the assault was committed with a deadly weapon, or that the wounds were serious, and expressions may be found in opinions which have misled appellant into insisting upon a principle which is not invariably applicable. In Hatton v. State, 31 Tex.Crim. R., 21 S.W. 679, the weapon used was a shot gun at a distance of 40 yards, the gun being loaded with No. 8 shot. The contention there was that by reason of the small shot and the distance the offense could not be assault with intent to murder. Judge Hurt said:
"The evidence shows conclusively, that whether the shot used were sufficiently large to take the life of Johnson, appellant greatly desired and intended to do so. When in a case the question arises as to whether the accused intended to kill, the means used by him may be looked to. If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the intention must be established by other facts. But it would be a monstrous doctrine to hold, that because in fact the accused did not have the ability to kill, therefore he did not intend to kill." *Page 605
In Franklin v. State, 37 Tex.Crim. R., 38 S.W. 1016, will be found this language:
"In passing upon the intent of the party, the jury should look to the character of the weapon. If the weapon was a deadly weapon, and likely to produce great bodily harm, the jury may infer, from the use of such weapon, the intent to kill. If the weapon was not such a weapon, the jury may arrive at the intention of the party from the surrounding facts. If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder."
In Jackson's case, 48 Tex.Crim. R., 90 S.W. 34, the same principle was recognized. Other cases will be found collated under Section 1636, Branch's Ann. Tex. P. C. The ones specifically referred to are thought to be decisive of the present case. From all the circumstances the jury may have concluded that appellant earnestly desired to kill Schindler, and that he was making fair progress towards the accomplishment of that end by use of the means at hand, when interrupted by the approach of an officer.
We commend the efforts of counsel in appellant's behalf but feel constrained to adhere to the conclusions heretofore announced in our original opinion.
The motion for rehearing is overruled.
Overruled.