Aрpellant w'as convicted before a jury of having committed an assault and battery upon one Arnold Wyss with intent to kill and murder. His motion for a new trial was denied, and he was sentenced upon the verdict of the jury to be imprisoned in the State’s prison for a term of not less than two nor mоre than fourteen years. The only question discussed and urged by his counsel for a reversal of the judgment is that the court erred in overruling the motion for a new trial, for the reason that the evidеnce is wholly insufficient to sustain the judgment.
The evidence in the record was all given on the part of the State; the accused, it appears, introduced no evidence whatevеr in his defense. The following may be said to be a summary of the evidence: Arnold Wyss, the prosecuting witness, was on June 11, 1901, -conducting a saloon in the city of Huntington, Huntington county, Indiana. The appеllant came into thé saloon on that day, and after buying a drink of whisky, went to the rear of the salоon where Wyss and some other persons were engaged in playing cards. Appellant insistеd that he be let into the game, and he finally Was permitted to play. After playing a while he appears to have become noisy, and was trying to cheat in the game. A quarrel seems to have arisen in regard to the matter, and thereupon Wyss took the cards
It is contended by appellant’s counsel that under the evidence the jury was not warranted in finding him guilty of assault and bаttery with intent to kill the prosecuting witness as charged in the indictment, and we are asked to reverse the judgment on the ground alone that the evidence is insufficient to sustain it. The evidence shоws beyond controversy that the accused perpetrated an assault and battery uрon the prosecuting witness. The felonious intent to kill as charged was a material fact which the jury was required to determine from hll of the evidence and
Where an аssault and battery is committed with a deadly weapon which is deliberately used in such a manner аs to he reasonably calculated to take or destroy life, the intent to kill may he inferred as a fact from the act itself. Kunkle v. State (1869),
The fact alone that the prosecuting witness first struck the 'accused with his fist would not justify the latter in assaulting the former with a knife. Smith v. State (1895),
We are of the opinion that when the evidence, with all the legitimate and reasonable inferences which the jury was warranted in drawing therefrom, is considered, it can not be said that there is such an absence of еvidence as to leave the verdict of the jury unsupported upon any material point or fact. Under such circumstances this court has universally1 held that it can not disturb the judgment of the trial court. The fact that the evidence in a particular case upon which the judgment оf the lower court rests may be said to be weak or unsatisfactory is not available on appeal to this court. For, if there is evidence to sustain the .judgment in every material respect, a reversal is not authorized. Lee v. State (1901),
Judgment affirmed.