¶1(dissenting).
¶2The indictment charged that appellant assaulted Bob Gooden with intent to murder him. The majority makes out a case against this appellant for assault with a prohibited weapon upon the witness, Officer Calhoun, but Calhoun was not mentioned in the indictment upon which this appellant went to trial.
¶3According to the alleged injured party, Gooden, appellant, who was his friend and with whom he had had no difficulty or ill feelings, approached the table where he was seated in the second tavern with a gun in his hand and said, “something about ‘you hit it,’ but I don’t know exactly what he said.” Gooden stated that he arose from the table, grappled with appellant and cluring the course thereof the pistol was discharged but not in his direction. Then the officer arrived and upon his command appellant threw the pistol out of the tavern and the officer took possession thereof. Gooden stated that in a conversation with appellant immediately after the above incident the appellant told him that he had always considered Gooden as a friend. He testified further that during the affray appellant made no effort to shoot him and that when the pistol went off as the result of his striking appellant’s hand, it was not pointing at him. We quote briefly from Gooden’s testimony:
“Q. You and he had always been friends before, hadn’t you?
A. Sure we was friends.
*277Q.Never any bad blood or trouble between you?
A. No, sir.
O. You looked at one another in a friendly manner?
A. Yes, sir.
Q.You treated one another friendly?
A. Yes, sir.”
¶4The following authorities support the rule that such an intent must be shown, Gipson v. State, Tex.Cr.App., 403 S.W.2d 794; Hernandez v. State, Tex.Cr.App., 375 S.W.2d 285; Trimble v. State, 148 Tex.Cr. R. 596, 190 S.W.2d 123; Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744; Cheeks v. State, 157 Tex.Cr.R. 184, 247 S.W.2d 893; Richard v. State, Tex.Cr.App., 426 S.W.2d 951; Barnes v. State, 172 Tex.Cr. R. 303, 356 S.W.2d 679 and Tex.Cr.App., 366 S.W.2d 586; Robertson v. State, Tex. Cr.App., 426 S.W.2d 872; Johnson v. State, Tex.Cr.App., 421 S.W.2d 918; Daniels v. State, Tex.Cr.App., 215 S.W.2d 624; King v. State, 153 Tex.Cr.R. 422, 220 S.W.2d 647; Henry v. State, 157 Tex.Cr.R. 88, 246 S.W.2d 891; Windham v. State, 162 Tex. Cr.R. 620, 288 S.W.2d 90.
¶5I fail to find the evidence sufficient to support the judgment of the trial court.
¶6I respectfully dissent.