[Allen Paschal was indicted for assault with intent to murder, “ with a certain stick, loaded at the end with lead, said stick being a weapon likely to produce death.” On the trial, the only evidence as to the nature of the weapon used by defendant was as follows : One witness testified *819that he had seen defendant some three years ago with a stick which was loaded with lead. Another testified, that in the act of striking, “ the head of the stick shined like a silver dollar,” the alleged assault having been committed on a “ star-light night.” A witness for the defence testified that the defendant was accustomed to walking with an ordinary hickory stick, weighing not more than a pound. Defendant admitted the fact of striking with a stick, but pleaded not guilty to the offence as' charged in the indictment.

Counsel for the defence requested the court to charge the jury that “ where the indictment charges the defendant with the offence of assault with intent to murder by using a stick, an instrument likely to produce death, then it is incumbent on the state to- prove the allegations.” The request was refused ; defendant was found guilty, and excepted.]