People v. Lopez

GRAY, C.

The defendant was charged with assault with a deadly weapon with intent to murder, and two previous convictions, one of burglary in the second degree, under the name of Theodore Mendez, the other of petit larceny, under the name of Frank Deas. He confessed the previous convictions, and was convicted of assault with a deadly weapon and sentenced to ten years in the state prison.

1. For a reversal, the defendant contends, first, that the court erred in instructing the jury that their verdict must be either guilty of assault with intent to murder, guilty of assault with a deadly weapon, or not guilty, and that the court should have instructed the jury that they might return a verdict finding the defendant guilty of assault.

The defendant, as a witness, testified, in substance, that he cut the. prosecuting witness with his

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little knife, ’ ’ but claimed that he did so in self-defense, and testified to facts in support of that theory. There is no conflict in the evidence showing that the cutting done by defendant with his “little knife ” was of a very serious and dangerous character. The prosecuting witness’s face was laid open to the bone, with

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long gashes in three different places; he also had a cut under the chin, “extending from left to right.” When the surgeon reached him, soon after the assault, he was bleeding profusely, and, in the opinion of the surgeon, probably would have died from loss of blood if he had not received surgical aid. The testimony on the part of the prosecution shows that the assault of defendant was entirely without provocation. It is clear, from the evidence, that the assault was made with a deadly weapon, used in a deadly manner, and with the evident purpose of taking the life of the party assailed. If the defendant committed any crime at all, it was certainly of greater magnitude than simple assault, and an instruction that the jury might find him guilty of an assault merely would have been ■entirely unwarranted by the evidence. The instruction, as given, was proper under the circumstances disclosed.

(People

v.