This court cannot pass upon the vjeight of the evidence or the credibility of the witnesses. It is the exclusive province of the jury that tries the case to perform such duty. (Code Grim. Proc., art. Y28.) In this case there is ample evidence, if believed, to not only warrant, but to demand, the conviction of the-defendant of an assault with intent to murder. By their verdict the jury have said that they believed this evidence to be true, and it is not within the province of this court to disturb that finding. It was proved that the defendant went to the house of Davis, in the • night-time, called Davis out of his bed, assaulted and knocked him down, without any provocation; and, when Davis had fled into his house for safety, threatened to break the door of the house, or burn the house and kill him. Armed with a gun, he was preparing to break into the house when Davis appeared at the door of the house, also armed with a gun, and both parties fired at each other about the same instant. Defendant fired at Davis twice. It was also proved that defendant entertained malice toward Davis, growing, out of a misunderstanding about a contract between them. To-our minds this evidence establishes clearly an assault with intent to > murder.
There was no evidence in the case which, in our opinion, demanded or would have warranted the court in charging upon the law of manslaughter. The acts of the defendant evince deliber*50átion throughout the difficulty, and the circumstances show that he was actuated by malice and a formed design to take the life of Davis.
There was no “ sudden passion ” “ arising from an adequate cause,” and it was not incumbent upon the court to instruct the jury upon a hypothetical state of case not presented by the evidence. It would have been error for the court to have done so. (Anderson v. The State, 15 Texas Ct. App., 447.) We think the charge of the court was in all respects correct, and applicable to the facts proved.
We find no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered October 22, 1884.]