Jennings

Appellant was tried before the court, sitting without a jury, on the charge of assault with a deadly weapon. From a judgment of conviction he has appealed.

The only contention made by appellant is that the judgment is contrary to the law and the evidence in that there is no proof of intent.

The complaining witness testified that he was living with his wife at the home of his brother-in-law when the incident happened; that he heard that the defendant, who was not living at the house, was there, and that complaining witness took his brother-in-law’s gun, went into the kitchen where appellant was, with the gun in his hand and at his side, and pointing toward the door, said to appellant, “Jennings, I don’t want to see you here. I don’t intend to discuss any matters with you here and you are not going to see her, so get out.” That immediately appellant threw his hand back to his hip pocket, pulled his gun and fired at complaining witness, the bullet grazing his cheek, causing the blood to flow. The witness also testified that as soon as appellant reached for his gun, that he raised his own gun and pointed it at appellant and attempted to fire the same, but that it would not fire.…