#### Cannon *vs.*The State of Georgia.

It being shown by the evidence that the prosecutor had a hatchet in his hand and began the difficulty, and that he threw the hatchet away at some stage of the difficulty, but it not appearing that the defendant knew that he had done so, it was error to charge that “if the assault was committed by defendant as charged in the in-

*759dietment; if he and prosecutor were-engaged in a quarrel; if prosecutor had a hatchet in his hand;-if ¡there was no attempt to use it, and defendant rushed in upon him and assaulted him with a deadly weapon; if there be no other provocation, the defendant would be guilty,” etc. The charge should have been so extended and qualified as to leave to the jury the question whether the accused assaulted the prosecutor under such circumstances as would justify the fears of a reasonable man that it was the intention of the prosecutor to commit some great bodily harm upon him or a felony upon his person.

July 12, 1888.

Criminal law. Charge of court. Reasonable fears. Before Judge Adams. Chatham superior court. December term, 1887.

Reported in the decision.

Denmark & Adams, by R. G. Erwin, for plaintiff in error.

E. G. duBignon, solicitor-general, by. brief, for the State.

Blandford, Justice.

Cannon was indicted for assault with intent to murder, and was found guilty. He moved for a new trial which was refused, and he excepted.

In the view we take of this case, it is only necessary to notice one ground of the motion for a new trial. The 4th ground is ás follows: “ Because the court erred in charging the jury as follows : ‘ If you find that the assault was committed by the defendant as charged in this indictment; if you find that he and the prosecutor were engaged in a quarrel; if you find that the prosecutor had a hatchet in his hand; if you find from the evidence that there was no attempt made to use it, and that the defendant rushed in upon him and assaulted him with a deadly weapon; if there be no other provocation, the defendant would be guilty of an assault with intent to murder ’; — the said charge being illegal, in that it did not submit the theory *760as to the use of the knife being justified by the surroundings and circumstances and the peril to defendant’s life.”

This charge was not altogether just to the defendant. The evidence shows that the prosecutor had a hatchet in his hand, and that he began the difficulty. It appears that he threw away the hatchet at some stage of the difficulty, but it does not appear that the defendant knew this. The charge stated that if the prosecutor did certain things, and-the accused rushed upon him and assaulted him with a deadly weapon, the accused would be guilty of an assault with intent to murder. The charge did not leave the jury the question of whether the accused assaulted the prosecutor under such circumstances, as would justify the fears of a reasonable man that it was the intention of the prosecutor to commit some great bodily harm upon him or a felony upon his person. The court should have so extended and qualified the charge as to present this question to the j ury, and leave them to say whether the circumstances were such as to justify the defendant or not. For this reason, and this reason only, we grant a new trial.

Judgment reversed.