
    4099.
    Shelton et al. v. The State.
   Hill, C. J.

1. On a trial under an indictment charging the offense of assault with intent to murder, the trial judge instructed the jury as follows: “If you find that the defendant assaulted and wounded the party alleged.to have been assaulted and wounded, and assaulted with a weapon likely to produce death, and it was done with'malice, — that is, there was a specific intent to take human life, without justifying or mitigating circumstances, — and you believe such to have been established by the evidence, and as to whether or not there wa's any malice in the mind at the time of the occurrence, is a question for you to determine by looking to all the surrounding facts and circumstances as reflected by the evidence; and if you so find and determine, you would be authorized to find the defendant guilty of assault with intent to commit murder.” Held: This excerpt from the charge is not erroneous, but is a correct presentation of the law applicable to the charge in the indictment. The specific intent to kill unjustifiably constitutes legal malice, whether death results or not. And where an assault is made with a deadly weapon, or a weapon likely to produce death, with a specific intent to kill, the jury are authorized to infer the existence of malice in the assault.

Decided May 7, 1912.

Indictment for assault with intent to murder; from Warren superior court — Judge Walker. February 27, 1912,

L. D. McGregor, for plaintiffs in error.

Thomas J. Brown, solicitor-general, contra.

2. The evidence supports the verdict, and no material error of law appears.

Judgment affirmed.  