
    5540.
    LEWIS v. THE STATE.
    On a trial for assault with intent to murder, it appearing that if the assault was committed it was made by stabbing with a knife, it was error to omit to charge the jury as to the lesser offense of stabbing, as defined in section 114 of the Penal Code.
    Decided April 18, 1914.
    Indictment for assault with intent to murder; from Fulton superior court — Judge B. H. Hill. February 7, 1914.
    
      John A. Boykin, for plaintiff in'error.
    
      Hugh M. Dorsey, solicitor-general, E. A. Stephens, contra.
   Roan, J.

Walter Lewis was convicted on the charge of assault with intent to murder by cutting and stabbing his wife with a knife, alleged to be an instrument likely to produce death. His motion for a new trial was overruled, and he excepted. The 5th ground of the motion is the only ground which seems to this court to be meritorious, and we deem it unnecessary to deal with the other assignments of error- in detail. This ground complains that the court committed error "in failing to charge the jury as to the statutory offense of stabbing contained in section 114 of the Penal Code,” and that "the jury should have been given the discretion to determine whether the intent in making the assault was to kill, or to commit some less offense,” especially as the assault is alleged to have been committed by stabbing with a knife.

To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death. The jury should have been given the discretion, under proper instruction from the court, to convict of a lesser offense included in the higher felony charged, if they believed that the evidence failed to show a specific intent to kill. The failure so to instruct the jury was error. See Powell v. State, 7 Ga. App. 744 (67 S. E. 1048); Ripley v. State, 7 Ga. App. 679 (67 S. E. 834); Fallon v. State, 5 Ga. App. 659 (63 S. E. 806), and eases therein cited.

Judgment reversed.  