Judgment affirmed.
Isbell was convicted of assault and battery alleged to-have been committed on Eaverson. He moved for a* *195new trial on the general grounds, and on newly dis-. covered evidence; the motion was overruled, and he excepted. The testimony for the State was substantially as follows: Eaverson was marshal of Bowman. By ordinances of that town, it was penal for any person to be drunk on the streets, and it was the duty of the marshal to arrest persons guilty of drunkenness or. disorderly conduct. The defendant was there, and was drinking. Eaverson told one David to take defendant oil", or he would have to arrest him. David said he could not do anything with defendant. Later in the evening clefendant rode his horse across the street or square twice, and when Eaverson went near him he galloped off down the street and stopped in front of Bagwell’s shop. Eaverson went to where he was; he was not then doing anything, Eaverson caught hold of him and told him to come and go before the mayor; he refused to go, and said Eaverson could not arrest him on his horse. Eaverson replied; he-would carry him and the horse both. He got down from the horse on the opposite side, and Eaverson ran around to him with a walnut stick drawn. He hit Eaverson on the head, and Eaverson struck him with the stick, which was a foot and a half long aud an inch and a half in diameter. Thereupon defendant caught Eaverson by the hair, jerked him and bit him on the face ; they scuffled, and Bagwell parted them, and pushed defendant into his (Bagwell’s) shop. Eaverson started in there with his stick drawn in a striking position, and defendant told him to go out of there. Defendant did not strike him or attempt to strike him with a piece of iron.
Testimony for the defendant was, in brief, as follows: On the day in question the defendant was drinking some, talking loud, but was not disturbing anybody. He and Eaverson were near each other during the day until late in the evening when the difficulty occurred, up to which time Eaverson had not arrested him or made *196any effort to do so. The horse defendant was riding had the habit of taking the “studs,” and in the evening, as defendant was riding, the horse stopped suddenly on the street-. Defendant had a jug of molasses in his hand, and Eaverson started towards him. Defendant galloped down the street towards Bagwell’s shop; he laughed at Eaverson and said, “ Go back, marshal, I am gone.” He was sitting on his horse doing nothing when Eaverson came up. One witness testified that when defendant got off of his horse, he saw the stick go up and down, and it looked as if Eaverson struck defendant over the horse. Lester Bagwell testified that he was present at the difficulty; that after some conversation between the parties, Eaverson told defendant to get down from his horse, and defendant got down on the side opposite from Eaverson, and just as he got down witness heard a blow from the stick; and that defendant did nothing and made no effort to do anything to Eaverson until Eaverson struck him with the stick.
A. G. McOurry, by brief, for plaintiff in error.
The newly discovered testimony is contained in the affidavits of A. A. Seymour and M. O. Bagwell, to the effect that Eaverson struck defendant with the stick before defendant struck him, and that immediately after the difficulty Bagwell or defendant, in talking with Eaverson, told him he had struck, defendant first, and Eaverson replied, “I don’t care if I did.”