charging the jury :
Gentlemen of the jury:—Charles Scott, the prisoner at the bar, is charged in this indictment with having committed, on the fourth day of July last, in this city and county, an assault upon one Ignos Wofneski, the prosecuting witness, with intent him, the said Wofneski, to murder.
This charge embraces not only an assault, which has been defined to be an attempt by force and violence to do an injury to the person of another, but embraces also an intent to commit murder.
In order to convict the prisoner at the bar in manner and form as he stands indicted, it is necessary for the State to satisfy you beyond a reasonable doubt, that the assault was committed by the prisoner; that it was committed with an intent to murder the person assaulted, and that if the person assaulted had died from the effects of the injuries received the assailant would have been guilty of murder.
The intent to commit murder is an essential ingredient of this charge, and it must be proved to your satisfaction just as any other material fact in the case. But inasmuch as such intent can rarely be proved by direct evidence, such as the confession or declaration of the prisoner, and must ordinarily be proved, if proved at all, by indirect or circumstantial evidence, it is your duty to consider all the other facts proved in the case in order to determine whether such intent existed or not. In determining whether there was an intent to commit murder, you may consider the character- of the *541assault, the kind of weapon used, the danger of producing death, the means used to avoid or cause death, and all the acts and conduct of the defendant, with the circumstances attending them, as shown by the evidence.
Counsel for the prisoner have asked us to charge you that before you can find the prisoner at the bar guilty of an assault with intent to commit murder, you must also find that had Wofneski died from the effects of the injuries received, the prisoner would have been guilty of the crime of murder. It is therefore, necessary for us to define to you briefly the crime of murder. But we do not think it necessary to define the different degrees of murder under our statute; for whether the crime, if it had been completed by the death of the victim, had been murder of the first or second degree, would be immaterial, as either would meet the requirements of our statute and would justify a verdict of guilty of assault with intent to commit murder.
The crime of murder is the unlawful killing of a human creature in being, with malice aforethought, either express or implied. If the killing is proved, it must be also proved that it was done with malice either express or implied, before the person charged can be convicted of murder. But such malice may be implied from any unlawful act such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. The deliberate selection and use of a deadly weapon has been held to be evidence of malice; and where malice exists, together with the killing, the crime of murder is complete. If you believe that the crime of which the prisoner would have been guilty if the prosecuting witness had died from the injuries received, would be manslaughter, you could not find him guilty of the intent to commit murder, for in manslaughter there is no malice. Whether there is any evidence in this case to satisfy you that there was malice, either express or implied, is a question for you to determine.
We have also been asked by defendant’s counsel to charge you that if you find from the evidence that Wofneski, while suspected *542of having committed a felony and while being pursued by persons who had raised a hue and cry, was shot by someone with the belief that he could not be otherwise taken, the person doing the shooting is protected by the law and cannot be convicted of an assault with intent to commit murder.
While expressing no opinion upon this proposition as a correct statement of the law in a proper case, we cannot charge you as requested therein, for the reason that we think the principle sought to be invoked is not applicable to the facts of this case.
Again, we have been asked by defendant’s counsel to charge you that if you are satisfied that there was an assault, but there was not an intent to commit murder, you must bring in a verdict of not guilty, because the Court of General Sessions has no jurisdiction to hear and determine cases of simple assault committed in the city of Wilmington.
We cannot charge you as requested in that prayer. There is a general statute of this State“(Reu. Code, 979, Sec. SO), which provides : “Upon the trial of any person for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony and to find a verdict of assault against the person indicted, if the evidence shall warrant such finding,” etc. We think that this general statute is not in any way affected, modified or repealed with respect to assaults committed in the city of Wilmington, by Section 15, of the City Charter, page 38. Whenever this Court has jurisdiction of a case of assault with intent to commit murder, and the jury are not satisfied from the evidence that there was such an intent, they may, nevertheless, find a verdict of guilty of assault only, if the evidence should justify them in so doing, even though the assault was committed within the limits of the city of Wilmington.
State vs. Christie 2 Marvel, 443
We do charge you, that in every criminal case the defendant is presumed in law to be innocent until his guilt is established by *543competent evidence. If after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt must enure to his benefit, and your verdict should be not guilty. But we say to you that such a doubt must notjbe a mere fanciful, vague or speculative doubt, but a reasonable, substantial doubt, remaining in your minds after a careful consideration of all the evidence; and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
If you are not satisfied from the evidence in this case, beyond a reasonable doubt, that the prisoner at the bar committed the assault upon the prosecuting witness, your verdict should be not guilty. If, however, you believe beyond a reasonable doubt that he did commit the assault, but are not satisfied that there was an intent to commit murder, your verdict should be not guilty in manner and form as he stands indicted, but guilty of assault only. But if you believe that the prisoner not only committed the alleged assault, but at the time of its commission it was his intention to murder Wofneski, and that had Wofneski died from the effects of the injuries received, the crime would have been murder, your verdict should be guilty in manner and form as he stands indicted.
Verdict, not guilty in manner and form as he stands indicted, but guilty of assault only.