No error of law appears in this ease, except the failure of the- court to charge the jury as to the statutory offense of stabbing. The specific intent to kill was not conclusively shown; and. under repeated rulings of the Supreme Court, and the rulings of this court in Fallon v. State, 5 Ga. App. 659 (63 S. E. 806), and in Ripley v. State, 7 Ga. App. 679 (67 S. E. 834), the jury should', by an appropriate charge, have been given the discretion to determine whether the intent to kill, or to commit some lesser offense, existed. This is especially true, under the definition of the offense of stabbing in § 112 of the Penal Code, where the felony charged in the indictment was accomplished, if at all, by the act of stabbing. Judgment reversed.
Indictment for assault with intent to murder; from Mitchell superior court — Judge Park. February 14, 1910. Submitted April 12, Decided March 12, 1910. Cox cG Peacock, for plaintiff in error. W. E. Wooten, solicitor-general, contra.