concurs in the ruling first stated, but not in all *696that is said in the first part of the opinion; and dissents from the ruling announced in the second division.
An assault is an attempt to commit a violent injury on the person of another (Penal Code (1910) § 95), and is punishable as a misdemeanor. § 96, An assault with intent to murder necessarily involves an intent to kill (Patterson v. State, 85 Ga. 131, supra), and, if committed by use of a weapon likely to produce death, is a felony punishable by confinement in the penitentiary for not less than two years nor longer than ten years. Penal Code (1910), § 97. At common law all assaults with intent to commit felony were classed as misdemeanors. 2 Wharton’s Criminal Law (11th ed.), 1051, § 838; 13 R. C. L. § 102; Hall v. State, 9 Fla. 203 (76 Am. D. 617). Penal Code § 97 is a departure from the common law. The language of that section first appeared in the act approved December 22, 184-0 (Ga. L. 1840, p. 140), and has been contained in the several codes since adoption of that act. Provisions quite similar were contained in § 39, Division 5, of the Penal Code of 1816 (Ga. L. 1816, pp. 142, 152) ; also § 39, Division 4, in the Penal Code of 1817 (Ga. L. 1817, pp. 92, 101); also § 43, Division 4, in the Penal Code of 1833 (Ga. L. 1833, pp. 143, 153). According to the act of 1816, any assault with intent to commit murder in this State by use of a weapon likely to produce death was a felony. Other classes of assaults with intent to commit murder otherwise than by use of a weapon likely- to produce death were not made felonies. This distinction was no doubt in the mind of Mr. Justice Candler in Walker v. State, 124 Ga. 440 (supra), when he stated that it is not essential to the validity of “every indictment” for assault with intent to murder to allege that the assault was committed with a weapon likely to produce death. The offense of assault with intent to commit murder must have all the elements of murder, except death of the victim. Jackson v. State, 51 Ga. 402. The offense being of the character mentioned, the intent to kill and murder is of the essence of the crime, and being so must be alleged in the indictment. 2 Wharton’s Criminal Law (11th ed.), 1051, § 839; 2 Enc. Pl. & Pr. 851; 2 R. C. L. § 48. For similar reason, where the offense is committed by-use of a weapon likely to produce death, such character of the weapon is of the essence of the felony, and must be alleged in the indictment. An automobile, while not constructed for use as a weapon, may be used in such manner *697as would likely produce death, and consequently when employed as an instrument with which to commit an assault, may be characterized as a deadly weapon. Where an automobile is so employed in the commission of a felonious assault with intent to murder, the indictment must allege it to be a weapon likely to produce death. In this case the indictment, being for felonious assault with intent to murder, was subject to be quashed on both grounds of demurrer: (a) that it failed to allege an intent to kill, and (b) failed to allege that the automobile was a weapon likely to produce death.
Russell, O. J., concurs in the dissenting opinion of Mr. Justice Atkinson.