People v. Guadalupe

CONREY, P. J.

Defendant was accused and convicted of the crime of assault with intent to commit murder, in that he made an assault with a deadly weapon upon one Lorenzo Ramirez with intent to kill and murder the said Lorenzo Ramirez. Defendant appeals from the judgment. There was no motion for a new trial. The points relied upon in support of the appeal are those hereinafter stated.

It is admitted by counsel for appellant that the evidence is sufficient to prove (although there is evidence to the contrary) that appellant fired the shot which struck Lorenzo;. but he contends that the murderous intent, if any, was directed toward one Laura Salcido. From the evidence on which the verdict depends the facts appear to be that appellant fired at Miss Salcido; that the shot missed her and hit the hoy Lorenzo, and that there is no evidence that appellant actually intended to hit Lorenzo.

Taking into consideration this state of the evidence, appellant contends that the court erred in giving to the jury the following instruction: “When one intends to assault a certain person with a deadly weapon and by mistake or inadvertence assaults another person with such deadly weapon in his stead, it is nevertheless a crime; the intent is transferred from such other person so assaulted and the party committing such assault will be deemed guilty of assault with a deadly weapon the same as if he had originally intended to assault the person so assaulted by such

[360]

mistake or inadvertence. ’ ’ He claims that this rule of the transfer of intent is confined to murder trials, where the general malice constitutes the intent, and is not applicable in the trial of a case like the present, where (so he contends) the only charge is that of assault with intent to kill. It is true that, except in the case of murder, it is the law that whenever a specific intent is an element of an offense, no presumption of law can arise, and that the specific intent is a fact to be shown like any other fact in the case.

(People

v.

Jones,

160 Cal. 358, 370 [117 Pac. 176].) But it does not necessarily follow that in the case at bar the conviction cannot be sustained without proof that the defendant intended to murder the person assaulted. “Every person who assaults another with intent to commit murder is punishable,” etc. (Pen. Code, sec. 217.) “Where one intends to assault or kill a certain person, and by mistake or inadvertence assaults or kills another in his stead, it is nevertheless a crime, and the intent is transferred from the party who was' intended to the other.”