In his motion for rehearing, appellant presses upon us his contention that the facts are insufficient to warrant the conviction.
In Ammann v. State, 165 S.W.2d 744, followed in Tindall v. State, 172 S.W.2d 328-335, in determining the sufficiency of the evidence to support a conviction for assault with intent to murder, we announced the rule to be:
"If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from and shown by the surrounding facts and circumstances. If it is possible that death might have been inflicted by the weapon used, and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon."
The facts bring the instant case within the rule stated.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.