Assault with a deadly weapon having been proved (using a butcher knife to stab another in the back being likely to produce death), the question resolved itself into whether the defendant was motivated by malice or by passion. Harrington v. State, 70 Ga. App. 55 ( 27 S.E.2d 352). Intent to kill may be inferred under the circumstances. Lovett v. State, 9 Ga. App. 232 (3) ( 70 S.E. 989). Nevertheless, it is true that intent to murder was not charged by the prosecutrix, the defendant was not put on notice that he was being accused of an attempt to take a human life, and the evidence of the prosecutrix herself, who is the only eyewitness, is to the effect that the knife was lying by chance immediately at hand and that the defendant seized and struck with it only when the prosecutrix refused to let him leave and announced her intention of taking him immediately to his father to settle the question of her accusations that he had stolen money.
Whether they were guilty of an assault with intent to commit murder or of stabbing depends upon whether the evidence establishes that they were motivated by malice or by passion. Harrington v. State, 70 Ga. App. 55 ( 27 S.E.2d 352). See also Burris v. State, 2 Ga. App. 418 ( 58 S.E. 545).