¶1— At the May term, 1901, of the circuit court of Texas county, the prosecuting attorney of said county filed an information, verified by his affidavit, wherein he-charged defendant Walter Anderson, and Edward Anderson, with a felonious assault with malice aforethought upon John Martin, on March 26, 1901, in Texas county. The said defendants were duly arraigned and pleaded not guilty. At the same term they were put upon their trial and defendant Walter Anderson was found guilty of an assault- with intent to kill with malice aforethought, and his punishment assessed at two years imprisonment in the State penitentiary.
¶2There was a mistrial as to Edward Anderson, and the case continued as to him. The defendant Walter Anderson *414filed his motion for new trial, which was heard and overruled, and from the sentence imposed in pursuance of the verdict against him, he appeals to this court.
¶3The evidence tended to prove that on March 26, 1901, John Martin and Walter and Edward Anderson were all in the town of Summerville in Texas county. They patronized the saloons liberally on that day, and in the afternoon defendant Walter Anderson became belligerent, and engaged in at least two fist-fights with John Martin, in which nothing serious resulted to either. They were separated and late in the afternoon defendant Walter endeavored to borrow a revolver in the town, but failed, and then started to his house saying he was going to get a gun. After dark that same evening both Walter and Ed Anderson appeared again in the town and went into a saloon where' they found John Martin, and again sought a difficulty with him, whereupon the proprietor put them out of the front door, and Martin out of the back door, and put out the lights and closed the saloon. The evidence for the State then shows that as Martin came out of the alley from the rear of the saloon the defendants began to throw rocks at him, and one of them (Walter) fired two shots at him, with a revolver, one of which struck. him, and he ran and escaped further injury.
¶4On their part they testified that Martin began to throw rocks at them and they defended themselves.
¶5The court gave the usual instructions covering every phase of the case, and especially very liberal and strong instructions on the law of self-defense. Although this cause was continued at the January call for the purpose of enabling defendant to file a brief, no brief has been filed and no error has been pointed out in either of the instructions.
¶6We have carefully examined all of them and find no error in any of them. The evidence, while to some degree conflicting as to who was the aggressor when the shots were fired, was ample to sustain the charge that defendant began it as soon as *415Martin emerged from the alley and that they were watching for him for that purpose.
¶7This was a question of fact to be determined by the jury and they settled it against defendant, The objections to the evidence were either so general that no error could be predicated on their denial, or were so obviously without merit that they furnish no ground for reversal.
¶8The record proper is without error, and the judgment must be and is affirmed.