
    Gilbert Jones, negro, plaintiff in error, vs. The State, defendant in error.
    Judgment reversed, because the verdict is strongly and decidedly against the evidence.
    Indictment for shooting at another. Tried before Judge Vason. Dougherty Superior Court. December adjourned Term, 1866.
    The indictment charged the defendant with unlawfully shooting at Henry Byrd, with a pistol, on the 20th December, 1866, not in his own defence, nor under circumstances of justificátion according to the principles of the Code.
    The State introduced Henry Byrd, who swore: I know the prisoner, Gilbert Jones; I was sitting in Jim Howard’s house, and Croff Brodenax said, “ Mr. Byrd, a gentleman wants to see you out doors;” I said, “ If he wants to see me, let him come in and see me ;” Mr. Jackson said, “ Go out and see him;” Gilbert Jones then stepped into the house and said, “ Come out here, I want to see you.” We went outside of the house, and Gilbert laid down his stick and asked me why I cursed him the other day; I replied, “ Why did you take Mr. Towns off, when I was talking to him ?” When he called me out of the house, he struck me and I struck him, I don’t know which struck first, prisoner then shot at me and struck me on the finger and shoulder, three pistols were fired.
    Cross-examined, he said: When we went out of the house, Gilbert said to me, “ What did you curse me for ?” I said, “ What did you call Mr. Dick Towns off for, when I was talking to him, no gentleman would have done so.” Gilbert raised his hand, but I do not know which struck first; Gilbert pulled off his coat; I did not say to him, “Have you the adaucity to pull off your coat to fight me ?” I did not shoot. Ho one gave me a pistol before I went back into the house. I cursed Gilbert in the previous difficulty, but did not call him a d-d liar. I did call him a d-d piney-woods son-of-a-bitoh; Gilbert said, “ let’s go out of the corporation.” When Simon Johnson said he could whip all three of. us in a minute and a half, I replied, it was doubtful. Gilbert Jones said he could not do it, and that he could whip all quicker than rain; I replied, “ You can’t do it;” Gilbert said, “ What did you say ?” I told Gilbert to come in, but did not throw my hand on my pistol when I said this, but threw my hand to my shoulder. I said to Gilbert, “ When you get ready to whip me, I have the change for you, and you had better bring your coffin along.” There was nearly a week between the two quarrels; I did not say to Gilbert when I went out of Jim Howard’s house with him, “ Yes, I meant what I said, you d-d piney-woods son-of-a-bitch;” I did not say, “ Have jtou the audacity to pull off your coat to fight me ?” I did not snap my pistol at Gilbert, no one gave me a pistol.
    In rebuttal, he said: the last fuss was at Jim Howard’s, just on the edge of the corporate line of the city. It was last year.
    surrebutter.
    I struck Gilbert at Jim Howard’s with a common black stick, the head of which was loaded, the stick would kill a man, it was a little larger than my thumb; I was hit on the shoulder and finger, there were three shots fired.
    The State nest esamined as a witness, Esther Howard, who swore: I heard a pistol fire, and after the fuss was over and Gilbert came in the house, with his pistol in his hand, rolling up his sleeves, I asked who shot, and Gilbert said he did. Gilbert was not invited to the party, he came into the house after Henry Byrd. I heard three pistols.
    Eliza Lobinsón, sworn, said: I heard Gilbert tell Esther Howard he was the man who did the shooting, or in reply to the question, “ Who did the shooting Gilbert said, “ I am the man.” Henry Byrd ran round and came into the back door. I heard three shots, one after the other.
    Howard Duncan, sworn, said: I was at the shop the day before the party; Simon Johnson said he could whip all in there; Gilbert said, “You can’t,” and then Henry Byrd cursed Gilbert as a d-d piney-woods son-of-a-bitch, and put his hand on his side where his pistol was, and told him he had better bring his coffin, if he wanted anything out of him, and called him a G-d d-d liar, and used much other opprobrious language.
    Upon cross-examination, he said: I don’t remember what Gilbert said to Byrd, but he said something before Byrd cursed him for a G-d d-d liar, son-of-a-bitch; I was not invited to the party.
    Bunk Jones, sworn, said: I was present at Jim Howard’s the night of the fuss, heard Henry Byrd say if Gilbert wanted to see him more than he wanted to see Gilbert, he could come in the house and see him. I saw Byrd and Gilbert come out of the house together, side by side, and both walked off from the door a few steps, when Gilbert asked Byrd if he meant what he said the day before; Byrd replied, “Yes, damn you, I did.” Gilbert then commenced pulling off his coat, and Byrd asked him if he had the audacity to pull off his coat to fight him, and at the same .time, struck Gilbert with a stick, and presented his pistol. Byrd pulled out his pistol on the steps, as he came out of the door; the ■first fire was on'the side on which Byrd stood, the other two on the side of the prisoner. I was present at the shop of Howard Duncan, and heard Byrd curse Gilbert, the day before the fuss at Jim Ploward’s; I heard him call Gilbert a d-d liar and a G-d d-d piney-woods son-of-a-bitch; I saw him put his hand on his pistol, and said to Gilbert, “ When you get ready to whip.me, you had better bring your coffin along.”
    Cross-examined, he said: Byrd pulled out his pistol when he stepped out of the house. Byrd was farthest from me. It was not a very dark night, the stars were shining, it was not cloudy. I could see Byrd’s stick, could not see who fired, saw Byrd and Gilbert all the time they were fighting, saw Byrd snap his pistol, saw Croff jerk a pistol out of Gilbert’s hands when he started to go back into the house; Byrd struck first with a stick ; I am Gilbert’s brother. I overtook Gilbert on the way to the party, I did not go there to assist Gilbert, was not invited to the party, and knew nothing about Gilbert’s having gone there to raise a difficulty. I tried to quash the difficulty ; I was standing near the door, and Byrd and Gilbert were standing with their sides towards me.
    William Bell, sworn, said : I was at the party and inside the house, when the fuss commenced. When asked if he meant what he said the day before, Byrd replied, “ Yes, you damned piney-woods son-of-a-bitch, I meant just what I said, and that you had better bring your coffin with youByrd said, “ You big-headed son-of-a-bitch, you pull off your coat to fight me!” I saw Byrd draw a pistol and point it at Gilbert. Byrd struck first.
    Cross-examined, he said: I was not invited to the party, I was in the house when the fuss commenced, I saw Byrd strike at Gilbert with a stick, saw Byrd snap his pistol at Gilbert, before Gilbert struck Byrd ; Byrd and Gilbert were eight or ten feet from me; first pistol was fired from Byrd’s side; Byrd struck first and snapped pistol at Gilbert at the same time.
    Craweokd Beodekax, sworn on the part of defendant, said : I was present the night of the party at Jim Howard’s house, and of the fuss between Byrd and Gilbert. Gilbert asked me to tell Byrd to come out there, that he wanted to see him; I told Byrd a gentleman wanted to see him outside of the house, Byrd replied, if any man had more business with him than he had with that man, he could come in and see him. Gilbert then came into the house and asked Byrd out, and then asked him what he meant by what he said to him the other day; Byrd said, “ I did say you damned piney-woods son-of-a-bitch, you had better bring your coffin.” I saw Byrd strike first.
    Cross-examined, he said: Gilbert commenced pulling off his coat; Byrd said, “ Have you the audacity to fight me ?” I am equally friendly with both; I think a pistol was first fired from the side of Byrd, but I did not see Byrd fire it, two pistols fired from the side of Gilbert, then Byrd ran • the pistol that Byrd had which I saw, was not fired at all, all the barrels were loaded; the’ pistol Gilbert had, when I saw it, could not have been fired, it was broke and unloaded; I jerked Gilbert's pistol out of his hand and hid it under the steps, it was a single-barrelled pistol.
    James Kemp, sworn, on the part of the State, said : he had known Byrd since 1858, his character was that of a good boy, had known him intimately for a long time, and he is a boy of a fine character.
    The jury found Gilbert guilty.
    Upon the foregoing brief of the evidence, (reported exactly as it appears in the record,) attorney for the defendant moved for a new trial on the ground that the verdict was contrary to the evidence, etc., and on other grounds not necessary to notice, as the case turned on that point in the Supreme Court.
    The assignment of errors is, the overruling of said motion for new trial on the grounds taken therein.
    H. Morgan, for plaintiff in error.
    D. H. Pope, Solicitor General, by Smith, Solicitor General, for the State.
   Walker, J.

This verdict is decidedly and strongly against the weight of the evidence. The prosecutor says that he and defendant went out of the house, and defendant laid down his stick,— both parties struck, — which struck first, he does not know. He struck defendant with a loaded-headed stick a little larger than his thumb, and it would kill a man. All the other witnesses show clearly that prosecutor struck first, and some say shot first. Here was an assault made on defendant, with a weapon likely to produce death; and he had a right to defend himself against this felonious assault, by any means at his command. Had he taken the life of the prosecutor, under these circumstances, he would have been justifiable.

Judgment reversed.  