(after stating the facts). We are of the opinion that the court should have given instruction No. 5 asked by the appellant and refused by the court. We think it was correct, and should have been given in this case, as it seems from the evidence that, had death ensued from the assault, the appellant might not have been guilty of murder, and that he might have been found guilty of an aggravated assault only, or some degree of crime less than murder. We understand that, before a party can be guilty of assault with intent to kill, the evidence must show that, had death resulted from the assault, it would have been murder. The instruction as given, seemed to indicate to the jury that the appellant was guilty of assault with intent to kill, or not guilty at all.
There should be in such a case as this no intimation of opinion by the court in its charge to the jury of the weight of the evidence. This is for the jury. Flynn v. State, 43 Ark. 294. See also Polk v. State, 45 Ark. 165; Stephens v. Oppenheimer, 45 Ark. 492; Smith v. State, 50 Ark. 545; Mabry v. State, 50 Ark. 500.
For the error indicated the judgment is reversed, and the cause is remanded for a new trial.