People v. Fine
53 Cal. 263
Cal.
1878
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By the Court :

The intention with which the cissault was committed was a material issue of fact to be determined by the jury; and if the assault was committed, not with the intent to commit murder, as charged in the indictment, but to do great bodily harm or some lesser’ offense included in the greater one charged in the indictment, the jury might have convicted the accused of the lesser offense. But the Court instructed the jury that if they found a verdict of guilty they must convict him of the offense charged in the indictment. This was error.

Judgment and order reversed, and cause remanded for a new trial.