125 Cal. 342 | Cal. | 1899
The defendant has been found guilty of an assault with intent to commit murder. He now claims that the evidence is insufficient to support the verdict.
There is evidence in the record which tends to show that the defendant Watson, when somewhat under the influence of liquor, seized a boy about fifteen years of age, tied him by the neck to his (Watson’s) horse’s tail, using the hair of the horse’s tail for that purpose, then mounted his horse, and, with his pistol in his hand and threats to kill issuing from his mouth, rode about one-quarter of a mile, leading the boy. This journey was also interspersed by incidents such as defendant’s firing his pistol. It further appears that this reckless deed was done by reason of the feeling of hatred held by defendant against the boy’s elder brother. The question as to the intent with which these acts were done by defendant was a pure question of fact, to be determined from all the circumstances of the case; and from those circumstances the jury could well declare that the intent of defendant was to kill and murder this fifteen-year-old boy. It is said in People v. Landman, 103 Cal. 580: “Of course, under these circumstances a person’s intent cannot be proven by direct and positive evidence, yet it is none the less a question of fact to be proven like any other fact in the case, and all the circumstances surrounding the assault furnish the rule upon which its proper solution depends.”
The court instructed the jury as follows: “The law provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. 2. Under the information in this case the defendant can be convicted of either assault to murder, or of an assault, as the evidence may establish. 3. Gentlemen, the form of your verdict must be either: 1. We, the jury, find the defendant not guilty; or 2. We, the jury, find the defendant guilty as charged; or 3. We, the jury, find the defendant guilty of assault.” Section 245 of the Penal Code provides: “Every person who commits an as
This defendant’s position upon the matter under discussion is much stronger than we find in those cases where the court fails to instruct at all upon the question. In some of those cases it has been held that the defendant should have asked for an instruction directed to the particular point. But in the present case the giving of the instructions we have quoted is, in substance, a refusal to give an instruction authorizing the jury to find a verdict of guilty against defendant under the aforesaid section of the Penal Code, providing the evidence justified it. In many cases we have held the judge justified in refusing instructions bearing upon lower grades of crime included in the charge laid by the information. These cases have arisen where, under the evidence, it was entirely plain no such crime was committed. In the present case we are unable to say that the evidence does not disclose the character of -assault described in section 245.
The conclusion at which we have arrived is in no degree conflicting with the cases of People v. Arnold, 116 Cal. 687; People v. Scott, 93 Cal. 516; People v. Barney, 114 Cal. 558, and People v. Guidice, 73 Cal. 226. In all of those cases the court gave
For the foregoing reasons the judgment and order are reversed, and the cause remanded for a new trial.
Harrison, J.. and Van Dyke, J., concurred.