¶1On the question the Court divided, and Judge Harrington charged the jury that intent was not to be implied, as malice might be, solely from the unlawful act; but as the intent to kill Crammer was a fact charged in the indictment, and an essential ingredient in the offence, it. must be proved as a fact, so far as intent can be proved; which must be by the proof of other facts,—the character of the assault; the weapon used; the danger of producing death ; and the means .used to produce or avoid death. The jury was told, therefore, that if on the facts they were satisfied the prisoner as*510saulted Crammer intending to kill him, they ought to convict him of that aggravated offence; but if they were not satisfied on the proof that he intended to kill, they ought to acquit him of the felony, and find him guilty of the assault only, which was merely a misdemeanor.
¶2The jury rendered a verdict of guilty, with intent to kill.