It is strenuously insisted that the evidence is insufficient to show an intent to kill on the part of appellant. He testified that he stood within ten or twelve steps of Barnhart and aimed at his left side with a gun loaded with No. 4 shot, a number of which struck Barnhart, — but that his intent was only to scare and not to injure. There were four other eye-witnesses to the transaction beside appellant. They testified that Barnhart did nothing indicating any purpose on his part to attack appellant; that Barnhart had no weapon of any kind that any of them saw, or the use of which was indicated by any movement or gesture of Barnhart. Two defense witnesses said that appellant stated to Barnhart that he was tired of his cursing and running over him, and that appellant then raised his gun and fired. We think the jury fully justified in concluding that appellant intended to kill Barnhart.
The motion for rehearing is overruled.
Overruled. *Page 617