— Upon an indictment charging an assault with a premeditated design and intent to kill and murder Dave C. Jones, Leonard Jarman was found “guilty of an assault with intent to murder in second degree,” and on writ of error taken to a sentence on the verdict, it-is contended that the evidence does not sustain the verdict.
There is evidence of a personal difficulty between Dave C. Jones and Leonard Jarman. A witness testified: “they stood and talked awhile and Dave looked up at me, and as he did Leonard struck him with that stick and knocked him off in the edge of the ditch. Dave was not making any advance on him at the time he hit him; he looked up at me to make a remark, and when he did Leonard peeled him with the club. The club was -about four feet long and about two and a half inches in diameter. I took Jones away from there; I thought Leonard bad just about killed him, and I went and picked him up and Leonard went off down the road.”
This and other testimony adduced afford a legal basis for the verdict, and it does not appear that the jury were not governed by the evidence in making their finding. See Pyke v. State, 47 Fla. 93, 36 South. Rep. 577; Revels v. State, 33 Fla. 308, 14 South. Rep. 821; Williams v. State, 65 Fla. 367, 61 South. Rep. 829; Jones v. State, 66 Fla. 79, 62 South. Rep. 899; Griffin v. State, 72 Fla. 79, 72 South. Rep. 474; Hawthorne v. State, 72 Fla. 524, 73 South. Rep. 590; Long v. State, 42 Fla. 612, 28 South. Rep. 855. Golding v. State, 26 Fla. 530, 8 South. Rep. 311, relied on for the plaintiff in error is not apposite since *147the enactment of Section 4007, General Statutes, 1906, Compiled Laws, 1914. McCoy v. State, 40 Fla. 494, text 506, 24 South. Rep. 485.
Judgment affirmed.
Taylor, Ellis and West, J. J., concur. Browne, C. J., dissents.