¶1The respondent has been convicted of an assault with intent to kill and murder one Nicholas Drew.
¶2It appears from the record that in October, 1881, Drew was in the employ of the Grand Rapids & Indiana Railroad Company and was sent with a party of men to repair what was known as the “ Moon Spur” to that road at Big Rapids. This spur is a side track connecting with the Moon mill. *332Respondent disputed the right of the company to do what was proposed, and claimed that they were coming upon his land. An altercation took place between him and Drew; the one declaring his intention to proceed, and the other threatening to undo what should be done. In the course of the altercation, which evidently became very warm and excited, respondent, who had just drawn a line on the ground at Drew’s feet where he said his boundary was, pushed Drew so that he staggered, and then struck him a blow and knocked him down with a stick he had in his hand. This stick Drew testified looked like the handle to a shovel or some similar implement, but the evidence respecting this was vague. A number of persons witnessed the affray, some of whom testified that before he was struck Drew raised a- shovel as if to strike respondent, but others denied this. The above statement of facts is as strong against the respondent as the facts will warrant. Taking the evidence on both sides, it manifestly appears that respondent was acting in supposed defence of his rights when he was endeavoring to prevent what Drew proposed to do. The blow struck by him was unjustifiable, but there was not the slightest ground for supposing that he intended to kill. Excited as he undoubtedly was, he struck but a single blow in heated blood, and there was no attempt by him to follow up the mischief which that blow accomplished. The stick, we are satisfied from the evidence, was not in any proper sense a deadly weapon, and though it may be possible a blow with it might kill a person, this is so extremely improbable that such a result would not be anticipated. There was therefore' in the evidence nothing tending to show either an actual intent to kill, or an act purposely done by the defendant likely to produce that result. In other words, the main charge on which the respondent was convicted, was without evidence to support it.
¶3It follows that the conviction must be set aside and a new trial ordered.