Thе information charged that the defendant “did willfully, unlawfully, and feloniously assault one James Crawford with intent to commit mayhem.”
At the conclusion of the evidence certain written requests to instruct the jury were submitted by counsel for defendant, and, at the conclusion of the argument, thеse, and also certain instructions prepared by counsel for the people, were given, and following these the court
Mr. Roth. “ I thought it customary for the court to give those instructiоns.”
The Court. “ I was going to instruct them as to the form of the verdict.”
Mr. Roth. “ Very well, the form may give it.” Thereupon the court instructed the jury that, if they found the defendant guilty of an assault with intent to commit mayhem, their verdict should be: “We, the jury, find the defendant guilty of an assault with intent to commit mayhem; should you find the defendant not guilty, the form of your verdict should be, ‘We, the jury, find the defendant not guilty.’ ”
Mr. Roth. “ I would like to ask, can we have an instruction as to the degree of this crime ? I think the charge includes the chargе of simple assault.”
The court replied, in substance, that a rule of that court required а party who desired instructions given to present them to the court before the argument; thаt it did8not like to take chances on giving an instruction on the spur of the moment, and declined to instruct the jury upon that subject.
The court erred in not instructing the jury as requested. Section 1127 оf the Penal Code provides: “ In charging the jury the court must state to them all matters of law nеcessary for their information. Either party may present to the court any written chargе, and request that it be given. If the court thinks it correct and pertinent it must be given; if not, it must be refused.”
Sеction 1159 of the Penal Code provides: “The jury may find the defendant guilty of any offense, the сommission of which is necessarily included in that with
The instruction desired by the defendant was one usually given by courts of their own motion. If the cоurt had overlooked it, and counsel had not called the attention of the court tо the omission, a different question would be presented; but in this case the observance оf the rule operated to subvert its object, viz., to promote the purposes of justiсe. Having made the ruling, the defendant’s motion for a new trial should have been granted upon that ground.
Respondent’s contention that the omission or refusal of the court to instruct the jury that they might find the defendant guilty of assault was proper, because “ the crime was the grеater one or none at all,” is without merit. Cases for murder, where the court refused to instruсt that a verdict for manslaughter might be found, are broadly distinguishable from the case at bar, since here an assault is directly charged; and, if no assault was made, the higher offense сould not be committed. (See People v. Defoor,
The words, “ or bite the lip,” used in the third instruction given at the request of the prosеcution, is not the equivalent of the word “ slit,” used in section 203 of the Penal Code. If this injury to the lip wаs such as to constitute mayhem the defendant should have been charged with that offense; but, as it is not claimed that the bite amounted to mayhem, the instruction should
The judgment and order appealed from should be reversed and a new trial ordered.
Vanclief, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and a new trial ordered. Garoutte, J., Harrison, J., McFarland, J., Henshaw, J., Van Fleet, J., Temple, J.