dissenting. On the trial of one charged with the crime of assault with intent to murder, it is abstractly erroneous to instruct the jury to the effect that if the person assaulted had been killed at the time and under the circumstances disclosed by the evidence, and if the killing would have been murder, then the jury would be authorized to find that the accused was guilty of an assault with intent to commit murder. As a general proposition, a murder committed by violence embraces every element of an assault with intent to commit murder, and until the decision of the Supreme Court in Patterson v. State, 85 Ga. 133 (11 S. E. 620, 21 Am. St. R. 152), the trial judges of this State, in eases of assault with intent to commit murder, always gave instructions covering the law of murder, justifiable homicide, and manslaughter, where applicable under the facts, and also- instructed the jury that if, in the event that death had resulted from the assault, the killing would have been murder, the jury would be authorized to find the accused guilty of the offense of assault with intent to commit murder. It was never doubted that this instruction was proper, until the decision above referred to. In that decision the principle was first laid down that “the law will impute an intention to kill where there is a killing, but not where there is none.” In other words, the specific intent to kill will not be presumed where death does not ensue; and the existence of such intent is a question of fact, to be passed on by the jury. In the case of Gilbert v. State, 90 Ga. 691 (16 S. E. 652), in which Chief Justice Bleckley spoke for the court, that great jurist, with his usual acumen and 'logical power, further elaborated this prin*547ciple, ancl the subsequent decisions of the Supreme Court have been uniform on this point. While the rule thus laid down must be conceded to be based upon sound logic, yet it is hot entirely free from metaphysical subtlety and nicety of distinction. To the lay mind it seems difficult to understand a substantial distinction between the right to imply as a matter of law' the existence of a specific intent to kill, and to infer as a matter of fact the existence of such intent, where, under the evidence,' no '.other construction can be placed upon the facts; and certainly it was never intended that the error of law above indicated would be of sufficient gravity to require the grant of another trial, where, under the evidence, the finding that a specific intent to kill existed was demanded; for under such a state of facts it would seem that the charge, though abstractly erroneous, was, as to the particular case, harmless. We think this statement is clearly inferable from the decision of the Supreme Court in the case of Adams v. State, 125 Ga. 11 (53 S. E. 804). In that case it was held that while “a malicious intent to kill is not, as matter of law, to be presumed whenever one person shoots at another with a gun, unless the shooting be neither in self-defense nor under circumstances of justification,” yet, in view of the undisputed facts of that case, the charge of the court on that subject (the same charge, in substance, that we are now considering), “while not correct in the abstract, was not harmful to the accused.” In that case the trial judge, after giving the charge complained of, instructed the jury that an intent to. kill was -not to be presumed, but the burden was upon the .State to show the intent to kill, and that if there was no intent to kill, there could be no conviction of assault with intent to murder; and the Supreme Court held that, in view of these instructions, it .'was evident' that the charge complained of could not have been misunderstood by the jury. In Harris v. State, 120 Ga. 170 (47 S. E. 520), the Supreme Court reaffirmed the rule which had its source in the decision in Patterson v. State, supra, and, in discussing the same error in the charge, said: “It is also to be noted that in a later portion of his charge the court, at the request of counsel for the accused, gave to the jury the correct rule of law, and to that extent the error in the earlier charge will be considered as cured.” In the present case, after instructing the jury that “had the assault eventuated in the death of Doe Ken*548drick, and that death had been murder, or the result of this assault had been murder, then, in case the assault did not have that result, it would be assault with intent to commit murder,”—in other words, that if Kendrick (the person assaulted) had been killed at the time and under the circumstances disclosed by the evidence, and the killing had been murder, then the jury .would' be authorized to find the accused guilty of assault with intent to commit murder,—and after instructing the jury fully on the law of murder, justifiable homicide, and manslaughter, the learned trial judge repeatedly applied to the facts the true rule, that it was for the jury to determine, from the evidence, whether the specific intent to kill existed, and that it could not be implied. In nine separate and distinct parts of the charge he clearly told the jury that they must believe beyond a reasonable doubt, from the evidence, that it was the intention of the accused to kill the person assaulted, when he shot at him, and that they must also find that he was not justified in the shooting, and warned them that they could not find the accused guilty of assault with intent to commit murder unless they found, from the circumstances of the shooting, that it was his intention to kill, and that if they entertained a reasonable doubt as to such intention, it would be their duty to give the accused the benefit of that doubt and acquit. I think that it is unreasonable to hold that there was a possibility that the jury were misled by the abstract error contained in the general proposition first laid down by the judge, when he so repeatedly and forcibly ■laid down the correct rule on that subject in making a concrete application of the law to the facts. The concrete application of a rule of law to the facts of a case will be more readily understood by the jury, and they will be more certainly controlled by such a statement of the law, than they would be by a mere abstract statement of a general legal principle. For this reason, I believe the error of law contained in the first general proposition stated by the trial judge was clearly and manifestly cured by the repetition of the correct rule of law in its application to the facts of the case on trial, and that the jury could not possibly, assuming that they had ordinary intelligence, have been misled on this point, and that they must have been impressed with the idea, so clearly presented by the repeated charge of the court, that they must look to the evi*549denee and the circumstances, for the purpose of determining the existence of a specific intent to kill.
I agree fully with the statement of the' majority of the court that the proper way to correct an error is to explicitly withdraw it from the jury and then give them the true rule; but this applies to errors that are harmful, material errors, errors that are susceptible of misleading and confusing the jury. In the next place, this error was not only cured as above indicated, but, under the evidence, it was entirely harmless. The only conclusion that the jury could have come to, under the facts, was that the accused did entertain a specific intent to kill the person assaulted, when he shot at him. Because of a most trivial altercation with the person assaulted, who was upbraiding him for his cruel treatment of his wife, the sister of the person assaulted, the accused went to the home of the person assaulted, several miles distant, secured his shot-gun, returned, and secreted himself behind some bushes on the side of the road, where he knew his brother-in-law was to pass; and, when the latter came by in a buggy, with a friend, the accused deliberately, without warning, only a few steps distant, arose and shot the prosecutor twice, the first shot putting out both eyes, and the second shot penetrating his shoulder. Here was a) deliberate arming for purpose of revenge, the use of a deadly weapon in a manner likely to produce death, shooting at a person, hitting him in a most vital part of his body, shooting not once, but twice, at a distance that would make the aim certain and the result effective and dangerous. The evidence shows no justification for the assault and no mitigation of the offense. In the language of the majority, the testimony “presents a plain case of attempted assassination.” The statement of the accused, made to the jury, that he did not shoot intentionally to kill the person assaulted, but shot to “bluff him,” because he was “scared of him,” could have had but little weight in overcoming the overwhelming proof that he entertained the specific intent to kill. Without extending the discussion of this question any further, I can not get my consent to grant to one who, the facts show, was guilty of an “attempted assassination,” a new trial because of an abstract error of law which was not only fully cured, as specifically pointed out, but which could not, under the facts, have misled the jury or been prejudicial to the accused.