Leatherwood v. State , 25 Ga. App. 484 ( 1920 )

Luke, J.

The defendant was charged with the offense of assault with intent to murder. Error is assigned upon the judge’s failure to charge the jury that the evidence must be sufficient to satisfy them that the defendant shot with intent to kill. This assignment of error is well taken. Where death does not ensue, the intent to kill cannot be a matter of legal presumption* but must be discovered from the evidence. 'For this reason, in every trial for the offense of assault with intent to murder, the jury must be instructed, in effect, that the burden is upon the State to show, beyond a reasonable doubt, that the alleged assault, if made by the defendant, was made with the specific intent to kill. See Gilbert v. State, 90 Ga. 691 (16 S. E. 652); Gallery v. State, 92 Ga. 464 (2) (17 S. E. 863); Wimberly v. State, 12 Ga. App. 540, 542 (77 S. E. 879). The other alleged errors are such as will not likely recur on another trial. It was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.