Opinion
APPEAL from a judgment of the Superior Court of Calaveras County, and from an order refusing a new trial.
COUNSEL:
W. K. Boucher, and E. A. Rodgers, for Appellant.
Attorney-General Marshall, for Respondent.
OPINION
MYRICK, Judge
The facts are stated in the opinion of the court.
1. The indictment charged that the defendant was guilty "of the crime of an assault to murder, committed as follows": then follows a statement that he unlawfully, feloniously, and with malice aforethought, with a deadly weapon, to wit, a shot gun loaded with powder and shot, upon the body of one Smith made an assault, and did shoot at and wound the said Smith, with the unlawful and felonious intent then and there wilfully, and of his malice aforethought, to kill and murder the said Smith.
Objection is made that the indictment does not state any offense greater than a misdemeanor , viz., an assault. We think the indictment, [4 P. 422] taken together, is sufficient to charge the greater offense.
2. The verdict returned is as follows: "The People etc. v. Barney McFadden, we, the jury, find the defendant guilty of an assault to murder." Signed by the foreman, and dated.
Objection is made that the verdict of guilty is limited to the assault merely. We think the verdict sufficient. It would have been more orderly for the court to have instructed the jury to return a verdict in terms as set forth in section 1151 of the Penal Code; but we think the effect of the language used is substantially sufficient. (See § 960, Pen. Code.) We do not see that the variation has tended to the prejudice of any substantial right of the defendant upon its merits.
3. It may have been fortunate for the person wounded that the shot penetrated the skin only, and did not, or perhaps would not, ordinarily have produced death at a given range; but we apprehend that such questions are properly left to the jury to be determined as questions of fact.
4. The court instructed the jury: "In this case, the assault being admitted, you must determine from the evidence whether it was committed with the unlawful intent to kill the person assaulted." The defendant complains that the court in this instruction assumed that an assault had been committed.
The defendant's bill of exceptions states that it appeared from the evidence that the defendant discharged both barrels of his gun at Smith, shooting him in the face and putting out his eye. The bill settled by the judge has also the written approval of the defendant's attorney. Under such circumstances, the point is too trivial to require further consideration.
Judgment and order affirmed.
McKINSTRY, J., SHARPSTEIN, J., and THORNTON, J., concurred.
Rehearing denied.