It has been so often decided as to what the evidence must ¡ show to sustain a conviction for the offense of an assault with intent to murder, that it is unnecessary to do more than merely to reiterate it here. Had death ensued from the assault, *91and from the circumstances of the killing, the defendant would only have been guilty of manslaughter; then he cannot be g'uilty of an assault with intent to murder, when there is no killing. All the ingredients of murder, except the killing, enter into and are necessary to constitute the crime of assault with intent to murder. At least there must be malice, express or implied, that would make the assailant a murderer, had he taken life in the assault. If there cannot be murder without malice, there cannot be an intent to murder unless the same element of malice appears : Meeks vs. The State, 51 Georgia, 429, and Jackson vs. The State, 51 Georgia, 402. As this case goes back for another trial, the testimony will not be discussed here, further than to say that the record shows that the defendant had stopped and put down his guns, when the prosecutor started towards him, with threatening invitations to shoot — that he was coming — to shoot quick — that he was coming to him, etc., etc. The defendant seems to have been but a weakling compared to the prosecutor, who had already shown his complete power to do as he might please with defendant. The evidence for the defense certainly makes out a case that would not have been murder had the defendant killed the prosecutor, and it could scarcely have been worse under the prosecutor’s own statement, if what he says about the first firing be stricken out. As to that firing, it does not appear that defendant shot at the prosecutor, or in Avhat direction he did fire. It is probable he did fire at him, but the prosecutor says “he stepped to the side of and behind the palings.” This was before the firing. The defendant was fifty yards off; some, and most of the witnesses, made it a good deal farther. The prosecutor then sprang out, rushed towards the defendant, with the threatening declarations, and with the effort to do great violence to defendant when he reached him. It was under these circumstances the other firing took place. But the matter will be passed on again by a jury, and no further comment on the testimony will be made.
Judgment reversed.