People v. Murat

By the Court: The defendant was indicted of a felonious assault made upon one Estudillo, with intent to murder him. ■ The language of the indictment characterizing the offense is as follows: “ Willfully, unlawfully, feloniously, and of his malice aforethought in and upon one Salvador Estudillo an assault did make, and willfully, unlawfully, and feloniously, and with malice aforethought, did then and there attempt to shoot, kill, and murder him,” etc. The jury found the defendant “guilty of an assault with a deadly weapon with an intent to inflict upon the person of another a bodily injury,” and upon this verdict judgment was rendered that the defendant be imprisoned in the State Prison.

It will be observed that the indictment does not allege the assault to have been made with a deadly weapon, and it is now objected that under such an indictment a conviction of an assault made with a deadly weapon with intent to inflict upon the person of another a bodily injury cannot be sustained. The argument for the prisoner is “that the averment that the assault was made with a deadly weapon is of the substance of the offense, and in order to convict it must be laid in the indictment and proven.”

The fiftieth section of the statute (concerning crimes and punishments) under which the conviction was had is as follows:

“An assault with an intent to commit murder, rape, the infamous crime against nature, mayhem, robbery, or grand larceny, shall subject the offender to imprisonment in the State Prison for a term not less than one year, nor more than fourteen years. An assault with a deadly weapon, instru[283]ment, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart, shall subject the offender to imprisonment in the State Prison not exceeding two years, or to a tine not exceeding five thousand dollars, or both such fine and imprisonment.”

Said Mr. Chief Justice Murray, in People v. Vanard, 6 Cal. 562, referring to the elements of the crime of assault with a deadly weapon with intent to inflict upon the person of another a bodily injury: “It is apparent that the weapon or instrument with which the assault was committed should be alleged and found, as the fact that the assault was made with a deadly weapon, etc., is of the substance of the offense and distinguishes it from an ordinary assault.”