Defendant was convicted in the circuit court of "Wayne county for the crime of felonious assault, committed with a pocketknife upon one Lee Sweazea, and his punishment fixed at two years’ imprisonment in the State penitentiary. He appeals.
On the twenty-eighth day of September, 1897, defendant and Lee Sweazea, his neighbor, went to Mill Spring in said county on horseback and from there to Piedmont by rail, where they remained nearly the entire day. Beturning late in the afternoon to Mill Spring, they mounted their horses and started home. They had been drinking to some extent that day and were somewhat under the influence of intoxicants. "While on their way home they engaged in a conversation about a picnic that had recently taken place at Leeper. *172Sweazea asked defendant if lie attended the picnic. Defendant said be bad not, but that bis wife bad. Sweazea said be saw defendant’s wife there and bad a talk with ber. Defendant then demanded of Sweazea what be knew about bis wife. Sweazea told bim be knew nothing about ber. Defendant insisted that be did and again demanded Sweazea to tell, Sweazea from first to last proclaiming bis ignorance. Defendant finally grew angry and said: “I’ll cut your damned throat,” at tbe same tbne catching hold of Sweazea’s shirt collar with one band and striking bim with a pocketknife with tbe other, which scratched Sweazea’s neck. Sweazea started bis horse and jerked away. Defendant testified as a witness in bis own behalf and admitted having a difficulty with tbe prosecuting witness, but denied striking him with bis knife. Tbe court instructed tbe jury upon tbe question of felonious and common assault.
1.. It is first insisted that there was no evidence to sustain tbe charge of felonious assault, and that tbe court committed error in instructing upon that theory of tbe case. But this seems to us to be a misconception of tbe evidence, which not only showed that defendant assaulted Sweazea with a pocketknife, but that at tbe time be did so, said to bim, “I’ll cut your damned throat,” thus attempting to carry bis threats into execution. Tbe evidence fully justified tbe instruction. Moreover, the court also instructed for common assault, so that tbe jury might have found bim guilty of that offense, if they bad believed tbe evidence justified them in so doing.
It follows that defendant has no reason to complain of the instructions.
2. It is intimated in tbe brief of counsel for defendant that tbe prosecuting attorney changed tbe bill of exceptions without authority after it bad been sent to tbe clerk of tbe court for filing so as to make the evidence show defendant guilty of felonious assault, but tbe charge is not presented to *173us in sucb a "way that we can take cognizance of it, hence we dismiss the subject without comment.
3. The evidence seems to have been sufficient to support the verdict, which was approved by the trial court.
The judgment should be affirmed, and, it is so ordered.
G-antt, P. J., concurs; Sherwood, absent.