The indictment charged the áccused with assault .with intent to murder a named person with a rock. Upon the trial the evidence tended to show that the accused wantonly threw a rock, likely to produce death if hitting a person in a vital spot, into a street-railroad passenger-car occupied by a number of passengers, one of whom was the person alleged to have been so assaulted and whom the rock came near striking. It did not appear that the accused knew such person, or any of the other passengers, or that he intended to hit any particular person in the car. No one was hit. Held, that the evidence did not warrant a verdict of guilty of assault with intent to murder, because it tended to make merely a case of the statutory offense of *787“rocking a passenger-train,” as defined in the Penal Code, §511; and therefore that the court erred in not granting a new trial.

Judgment reversed.