Appellant has filed a persuasive motion, and we have carefully considered again the facts in this case with *Page 44 the result that we are not satisfied that same are sufficient to justify the conclusion that appellant intended to kill the injured party at the time of the alleged assault. The size and character of the ice pick used are not shown, and the testimony of the doctor who examined the injured party does not show that the injury inflicted was of a serious nature nor is there sufficient evidence otherwise of an intent to kill.
Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.