1. Under an indictment for assault with intent to murder the accused may be convicted of the offense of shooting at another, if the latter offense is substantially charged by the averments of the indictment. Jackson v. State, 25 Ga. App. 748 (105 S. E. 162), and citation; Leatherwood v. State, 25 Ga. App. 484 (103 S. E. 685); Gaskin v. State, 11 Ga. App. 11, 12 (74 S. E. 554); Ripley v. State, 7 Ga. App. 679 (67 S. E. 834).
2. Before one can be convicted of an assault with intent to murder, it must be shown that he had a. specific intent to kill. Such an intent is not conclusively shown by the use of a weapon likely to produce death. Under the proof in this case, it was for the jury to determine whether the defendants shot in self-defense or under the fears of reasonable men, or whether they unlawfully shot with intent to kill, or whether they were guilty of an unlawful shooting at another, and the court did not err in charging upon the last named subject. Autrey v. State, 24 Ga. App. 414 (4) (100 S. E. 782). “If death results from a defendant’s intentionally shooting at the deceased with an ordinary pistol in a manner. ordinarily likely to kill, the defendant’s intention to kill is not issuable. The law presumes that he intended to kill, and not to inflict some lesser injury. But if death does not ensue, the law does' not presume that 'the defendant intended to kill, though he shot with a weapon likely to produce death and in a manner ordinarily likely to produce that result; for in cases of assault with intent to murder, the burden of proving that the defendant was possessed of a specific intention to kill is always upon the State, unaided by any presumption of law. The pronouncements of these propositions by this court and by the Supreme Court have been so uniform and unequivocal as to place them beyond' question. See Burris v. State, 2 Ga. App. 418 (58 S. E. 545); Duncan v. State, 1 Ga. App. 118 (58 S. E. 248); Napper v. State, 123 Ga. 571 (51 S. E. 592); Gallery v. State, 92 Ga. 463 (17 S. E. 863); Patterson v. State, 85 Ga. 131 (11 S. E. 620, 21 Am. St. R. 152).” *98Fallon v. State, 5 Ga. App. 659, 661 (63 S. E. 806, 807). See also Gilbert v. State, 90 Ga. 691 (16 S. E. 652).
Decided January 18, 1922. Rehearing denied February 14, 1922. Indictment for assault with intent to murder; from Chatham superior court — Judge Meldrim. May 27, 1921. Application for certiorari was denied by'the Supreme Court. Shelby Myrick, for plaintiff-in error. Walter C. Hartridge, solicitor-general, contra.3. Grounds 2, 3, and 11 of the amendment to the motion for a new trial are disapproved by the trial judge, and none of the other special grounds shows reversible error.
4. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.
Broyles, O. J., and Bloodworth, J., concur. Luke J., (dissents.