The information charged plaintiff in error with having unlawfully, felonously, purposely, and with premeditated *314malice, perpetrated an assault upon one Frankie Me Vay with intent to commit murder in the first degree. The crime charged is defined by Section 18 of the Crimes Act of 1890, as follows:
“Whoever perpetrates an assault, or an assault and battery, upon any human being with intent to commit a felony, shall be imprisoned in the penitentiary not more than fourteen years.”
The merest suggestion is made in the brief of counsel for plaintiff in error, that the information may be insufficient to such an extent that it can be raised in this court for the first time. There was no motion to quash, nor was any objection made to the information in any way in the trial court. It certainly describes a crime. The objection to form of description only must be first presented to the district court to avail here on error. Tway v. State (Wyo.), 50 Pac., 188.
It is urged, as ground for reversal, that the court erred in denying the challenges of defendant for cause to two jurors, Mr. Coon and Mr. Jones. Being examined upon the voir dire, Mr. Coon answered the prosecutor that he had formed an opinion based upon what he had heard. In response to questions by counsel for the accused, and by the court, he stated, in substance, that he had talked with some one who purported to state the facts, and from that had formed his opinion, which it would require evidence to remove; that he had supposed he had an impression rather than an opinion. That it would not affect him in trying the case; he would not say that it was such an opinion as would cause him to act one way or the other in the ordinary course of life. That it would not take less evidence for him to convict the accused than any other person with whom he was unacquainted. That he understood the legal presumption of innocence.
It was held in Carter v. Territory, 3 Wyo., 193, that the finding of a trial court upon the question of the qualification of a juror who states he has formed an opinion, should not be set aside unless error is manifest. The *315district court found that the opinion of the- juror was not of such strength as to disqualify him. We do not think error in such ruling is manifest.
With regard to the other juror, Mr. Jones, he had stated that he was prejudiced against the accused as a man, but not in the present case; that he could, however, give him a fair and impartial trial. The prejudice would seem to have existed in the mind of the juror because of the character or habits of the prisoner. It is unnecessary, however, to consider the effect of such bias upon his qualification as a juror. The defendant did not exhaust his peremptory challenges, but waived the last one, which he was entitled to exercise. When the opportunity exists to excuse a juror who is believed to be disqualified, and advantage is not taken to it, the error, if any, in overruling a challenge for cause, is not reversible. Carter v. Territory supra.
The defendant could have challenged the juror peremptorily. He failed to avail himself of that privilege, evidently satisfied to allow him to remain. He can not now complain.
The principal contention on behalf of plaintiff in error is, that the evidence was insufficient.
Although not strong, the evidence was sufficient to convince the jury of the guilt of the accused, and the trial judge who heard the testimony, saw the witnesses, and knew the jury, refused to disturb the verdict. It should not be interfered with by this court, on error, if there is enough evidence to sustain it, unless entirely insufficient in law to make out the crime charged. It is truly said by counsel that the intent of the .assault constitutes the gravamen of the offense. There was a conflict between the testimony of the prosecuting witness, and the accused. The former, who kept, or was an inmate of a house of ill Repute, testified that at a late hour in the night she heard a shot, and went out of the door to discover the cause, not anticipating any personal danger ; that she walked to the corner of the porch, and as she went around the corner, *316some one drew a gun, such as a rifle, and pointed it at ber. She then screamed, and immediately ran into the house. She heard some one coming in at the kitchen door, and she ran out of the house and across the street, where she met some gentlemen. They proceeded to investigate, and found a rifle upon the ground, which, upon examination, proved to be loaded, and was afterward discovered, and in the trial admitted, to belong to plaintiff in error. He was taken in charge by the officers, to whom he made statements which were evasive, to say the least; and on that night, he refused to claim ownership of the rifle. He did not shoot at the woman, but she said there was not time for him to do so, as she left so hurriedly. The plaintiff in error admitted being around the house with the gun ; and makes a somewhat unreasonable explanation of his purpose in being there in that condition. He said, ‘ ‘ I takes my rifle, pulls down the lever and sights it, and watches from that side of the fence ; I hears some little noise ; there’s a kitchen door, I goes up and listens ; walked around to the left side of the door, and the lady comes out; she sees me and throws up her hands and disappears around the corner of the house ; no one shows up ; I lays this gun down, and walks up and listens at the kitchen door, walks right around to the front of the house, and Pope and Mc-Cann and Tidal were in the middle of the street.” Pope and Me Cann were officers. He testified that the gun was on his arm, when the woman appeared, and that it was not. drawn up or cocked to shoot her at all. His excuse for being around there with the gun, was to the effect that he was, looking for some criminals for whom a reward had been offered, but the explanation is not very satisfactory, nor sufficiently clear to account for his actions, nor the necessity of the manner in which he had armed himself.
The jury must have believed the story of the woman, and the question arises whether the facts detailed by her are sufficient to sustain the verdict.
An assault is defined by the statute as follows:
‘ ‘ Whoever, having the present ability to do so, unlaw*317fully attempts to commit a violent injury on tbe person of another, is guilty of an assault.”
It is clear that pointing a loaded rifle at another may constitute an assault. At a late hour at night (about twelve or one o’clock), outside of another’s house, pointing such a weapon at one who comes out of the house, to an ordinary mind would not appear an insignificant affair. Such an act, under such circumstances, is not usually to be considered a mere pastime or an evidence of innocent sport or amusement. A person in possession of that kind of an instrument has the present ability to commit a violent injury upon the person of another who may be within reach. It is not required of us to concede or deny that in the trial of an accused upon a charge of an assault with intent to murder, the mere fact of pointing a rifle at another, will, in all cases, prove a murderous design. In this case there are' other facts which it was competent for the jury to consider. His statement of his purpose that night, his answers to the officers, an attempt to escape their observation, which was testified to, together with all the attendant circumstances which need not be repeated here. It may, however, be well to advert to some additional items of testimony disclosed in the record. It appeared from the testimony of Bryant that the shot which was heard was fired from his gun accidentally. This shot not only led the prosecuting witness to investigate the cause, but brought the officers upon the scene. The woman, meeting one or more of them as she ran out of the house, stated that some one had pointed a gun at her. One of the officers, shortly after that, found Bryant in the house where he had, as elsewhere appears, ordered a man he found there to move on. It was then discovered upon questioning the woman, that the weapon pointed at her was a long one. Hpon searching Bryant and finding no gun upon his person he was ordered to go to bed. After the rifle was found, the officers started down the street,’ when they observed some one jump up and start to run. They hailed and commanded him to *318stop. He did so, and it was found to be Bryant. He spoke to the officers saying, “Is that you, Bill?” and the latter responded, using his own language, “ Yes, now you will have to come on with us ; you have fooled along as long as you can.”
On the basis of Bryant’s testimony there is something mysterious about his actions that night. They seem incompatible with innocence of any criminal purpose.
As the jury, upon all the testimony, have determined that th.e plaintiff in error was guilty of the crime charged; and as there is evidence, which, if true, is sufficient to establish the crime; we are not disposed to disturb the verdict.
The judgment will be affirmed.
Corn, J., concurs. Knight, J., did not sit.