Opinion by
Dеfendant Sims was convicted of assault with a deadly weapоn. His only ground for reversal on this writ of error is that the trial court errеd in refusing to submit defendant’s tendered instruction on simple assault as a lesser included offense to the jury. This contention by the defendаnt is without merit and therefore we affirm the judgment of the trial court.
C.R.S. 1963, 40-2-33 defines assault as an unlawful attempt coupled with a presеnt ability to commit a violent injury on the person of another. C.R.S. 1963, 40-2-34 states that an assault with a deadly weapon is a felony and involves “an intent to commit upon the person of another а bodily injury where no considerable provocation aрpears or where the circumstances of the assault show an abandoned and malignant heart,. . . .” Simple assault is a misdemeanor, C.R.S. 1963, 40-2-35. It has been defined as an assault “. . . committed with no intentiоn to do any other injury. An offer or attempt to do bodily harm which fаlls short of an actual battery;. . . .” Black’s Law Dictionary, (4th ed.).
It is the law in this and other jurisdictions that in sоme circumstances where the evidence clearly justifiеs it, simple assault may be considered as a lesser included оffense of an aggravated assault, such as, assault with a deadly weapon or assault with intent to commit murder, and an instruction thеreon is proper.
Watts v. People,
The evidence is not in conflict that the defendant assaulted one Lewis with a .38 calibre revolver. The defendant admitted this in his testimony, and then attempted tо ground his defense on self-defense or provocation. Thе defendant and Lewis engaged in an argument at a party. Defendant concluded the argument when he fired his pistol at Lewis five times. The first bullet went into the wall above Lewis’ shoulder; the second аnd third entered the floor at Lewis’ feet; and the fourth and fifth hit Lewis. Therе is testimony that after Lewis fell, the defendant stood over him and аttempted to fire further shots, but, fortunately, all the cartridges in the wеapon were apparently discharged. There is alsо testimony that the defendant warned Lewis repeatedly not to advance toward him any further, although there is conflict as tо whether Lewis was indeed advancing at all. The defendant testified that Lewis pulled a knife on him before he pulled his gun on Lewis. The tеstimony of the other witnesses on this point is conflicting. It is appаrent that the jury, adequately instructed on the elements of the сrimes charged and on the defenses interposed, chosе to believe the People’s evidence.
Considering the facts of this case in the light of the definitions and principles of lаw set forth previously in this opinion, it is our view that the defendant was еither guilty of assault with intent to inflict bodily injury (a felony) or was not guilty of any оffense at all. There is no basis for an instruction on simple assault. The defendant used a gun to commit an assault and a battery аnd a bodily injury was *232 inflicted. The jury obviously concluded that he had the specific intent to shoot or kill Lewis when he fired. If the jury had concluded that Sims was in fact acting in self-defense, or was sufficiently provoked, it would have been warranted in finding Sims not guilty of anything.
Judgment affirmed.
MR. JUSTICE GROVES, MR. JUSTICE LEE and MR. JUSTICE ERICKSON concur.