| Ga. | Oct 27, 1899
In the view which we take of this case, it is only necessary to consider that ground of the motion which alleges that the verdict was contrary to law and the evidence. In our opinion, the evidence, which is set out in the reporter’s statement, is not sufficient to sustain the conviction. The. drawing of the pistol by the accused from his pocket was neither preceded by nor accompanied with any threat whatever. AVhat he would have done with the weapon, if it had not caught in the lining of his coat and fallen from his grasp, is mere matter for conjecture. His saying, after the porter had picked up the pistol, and after the struggle between himself and the baggage-master for its possession was over, “AAhsll, boys, you all have got it on me; if I had got it on you, I would have used it,” did not necessarily show that at the time that he drew the weapon from his pocket he intended to kill the baggage-master with it, nor that he then intended to use it upon the latter’s person at all. It is just as reasonable to suppose that, by this expression, he simply meant that if he had succeeded in getting the pistol back into his possession he would then have used it. The intention to use it might have been formed during the struggle for its possession between himself and the baggage-master. How he would- have used the pistol does not appear. If he had retained his hold on the pistol, perhaps he would have attempted to shoot the baggage-master, or, to make it stronger, suppose we say that he probably would have done so. But the question is not what he might have.done; nor what he probably would have done; but it is, what did he actually do? He made no attempt to shoot. He neither cocked the pistol, nor pointed it toward the person alleged to have been assaulted, nor did he even raise the pistol in a position which indicated an intention to strike him with it. Did he, when he drew the pistol from his pocket, intend to shoot the baggage-master, or
Judgment reversed.