People v. Jacobs
29 Cal. 579
Cal.
1866
Check Treatment
By the Court, Sawyer, J.

. The indictment was designed to be for “ an assault with a deadly weapon, etc, with intent to inflict, etc., bodily injury,” etc., under the fiftieth section of the Act concerning crimes and punishments. The indictment charges the defendant with “ an assault with intent to inflict upon the person of another bodily injury;” that said Baron Jacobs, etc., “witha certain pistol, etc., did then and there unlawfully make an assault,” etc. A demurrer to the indictment for insufficiency was sustained and the People appealed. The indictment neither follows the language of the statute, nor charges an assault with “ a deadly weapon,” nor alleges the weapon to. be deadly, nor that the pistol was charged. A pistol may be of such dimensions as to be a deadly weapon without being charged, and it may be so small as to be, without being charged, a very insignificant instrument of assault. There being no averment that the *580pistol was “a deadly weapon,” and no fact averred by which the Court could see that it was necessarily such, and the language of the statute not being pursued, we think the indictment insufficient, and that the demurrer was properly sustained!

Judgment affirmed.