Appellant's motion for rehearing presents no new question and, though agreeing with the law announced in the original opinion, strenuously differs with the court's idea of its application in the instant case. In turn, the writer agrees with the statement of law in appellant's motion for rehearing, but finds no evidence that would justify the application of such principles in the case now before us. The test of an assault with intent to murder is whether or not the accused would be guilty of murder with malice had death resulted. Under the facts of the case now *Page 48 before us, as sufficiently stated in the original opinion, there is no question in our minds but that the jury would have been warranted in finding appellant guilty of murder with malice had death resulted from the shot which he fired.
Wood v. State, 11 S.W. 449, will not aid the contention of appellant. There is nothing in this case to preclude the jury from finding, under all of the facts and circumstances, that appellant had the intention to kill. The officers were not unlawfully invading his premises. He was creating a disturbance that would have justified his arrest without warrant. Nevertheless, they took the precaution to secure a warrant, and while one officer was gone to a magistrate for that purpose appellant, incensed by the remaining officers in a neighbor's yard, fired upon them with a gun, a deadly weapon, without any provocation on their part. He did not testify in the case and offered no explanation of his conduct. He fired only one shot, it is true. So far as we know from the record he might have had only one load in his gun, or the gun might have jammed by his excited handling of it, or, as stated in the original opinion, he might have changed his mind and decided not to kill the officers.
Apparently reliance is had on the fact that he was drinking and that this precluded any intention on his part to kill. Drunkenness is not available as a defense to a charge for assault to murder. McCall v. State, 117 S.W.2d 794; Forbes v. State, 157 S.W.2d 900.
We believe that the authorities without conflict support the conclusion in the original opinion. The motion for rehearing is, therefore, overruled.