People v. Devine (1881) · DecisionDepot

People v. Devine

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Nov 15, 1881 No. No. 10,684Published

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Holding. The trial court's instruction defining assault with intent to commit murder was erroneous because it failed to include the essential element of an attempt to commit the offense.

Issues

Whether the jury instruction for assault with intent to commit murder was legally sufficient.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“It omits an essential element to constitute the offense, viz., an attempt on the part of the accused, which attempt must itself be unlawful.”

“This necessary constituent of the offense is ignored entirely in the instruction excepted to.”

Synopsis

Appeal from a judgment of conviction in the Superior Court of Sierra County. Howe, J.

The Court: In this cause, in which the defendant was accused by information of an assault with intent to commit murder, the Court instructed the jury inter alia as follows: “An assault to commit murder is an unlawful intent coupled with a present ability to kill a human being with malice aforethought.”

To this there was an exception by defendant. It is manifestly erroneous, and was so admitted to be by the Attorney General. It omits an essential element to constitute the offense, viz., an attempt on the part of the accused, which attempt must itself be unlawful. This necessary constituent of the offense is ignored entirely in the instruction excepted to. (Penal Code, § 240.)

The judgment is reversed and the cause remanded for a new trial.

People v. Devine

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