Huff’ was charged with the offence of assault with intent to murder one Cowan. He was convicted, and moved for a new trial; his motion was overruled, and *6he excepted. Besides the grounds that the verdict was contrary to law and evidence, it was alleged in the mo.tion that the court erred in charging the jury as shown in the first head-note.
John R. Cooper, by brief, for plaintiff in error. W. IT. Felton, Jr., solicitor-general, by brief, contra.The testimony for the State, briefly stated, was to this effect: Defendant was a passenger upon an electric car in Bibb county; he had been drinking. After the car passed Johnson’s corner, defendant told the conductor, Cowan, he wanted to get off at Johnson’s corner; the conductor replied that defendant had not told him, asked why defendant did not tell him, and said he would stop. When the car stopped the conductor told him to get off, and defendant said, by G-, that was what he was going to do. The conductor told him to get off' and not give him any of his slack jaw. Defendant got on the ground, called the conductor a vile name, and said he would give the conductor as much as he (defendant) wanted to. The conductor grabbed the brake-handle, which was iron rod about twelve inches long, and jumped on the ground; defendant threw his hand behind him as if to get his pistol, and ran back “ in a circle kinder”; the conductor struck at him (whether he hit him or not seems doubtful from the evidence); defendant drew his pistol, and the conductor struck at him again; the brake-handle flew out of the conductor’s hand and the conductor ran, and defendant fired at him with a pistol and ran. As to the brake-handle there was evidence that it was not very heavy; that one could knock a man down with it if he hit the man right; that the conductor could not knock a man down like defendant, unless he stood up right straight and the conductor got up on a box or something and hit him. The evidence for the defendant was mainly upon the question of alibi.