People v. Burgle

McFARLAND, J. Defendant was convicted of an assault with intent to commit murder, alleged to have been committed upon the person of one Sigmund L. Braverman; and he appeals from the judgment, from an order denying a motion for new trial, and also from an order denying his motion in arrest of judgment.

Appellant’s contentions for a reversal are all based upon asserted errors of the court committed in giving and refusing instructions to the jury. The evidence, beyond all doubt, warranted the jury in finding that the appellant assaulted the prosecuting witness with intent to murder him, unless the appellant, at the time of the assault, was insane; and therefore the only rulings of the court in the matter of instructing the jury which are of much significance in the case are those touching the subject of insanity. There are, however, some exceptions to instructions given by the court touching the general nature of an assault with intent to commit murder.

In its general charge to the jury the court correctly and very fully stated the nature of the crime of assault with intent to commit murder, and informed them that the defendant should not be convicted of the crime charged unless, at the time of the assault, he intended to kill the prosecuting witness under such circumstances that if he had killed him the homicide would have been murder; and the court, having described the crime of murder, used the following language: “In defining the crime of murder, which crime the defendant is alleged to have attempted to commit, I have told you that it involves the element of malice aforethought; the word ‘malice' imports a wish to vex, annoy, [305]or injure another person, or an intent to do a wrongful act.” The appellant objects to the foregoing language because it does not contain that description of express and implied malice which is to be found in section 188 of the Penal Code. It is doubtful, however, whether the language of section 188 should be given to the jury at all in a case of assault with intent to commit murder. It seems to have been intimated in People v. Wallace, 101 Cal. 285, that said section shoull not be given in a case like the one at bar, because implied malice is not equivalent to that actual intent which is essential to the crime of assault with intent to commit murder. (See, also, on this subject People v. Mize, 80 Cal. 42.) The appellant did not ask the court to instruct the jury in the language of section 188; and, at all events, it is apparent that appellant was not injured by the fact that section 188 was not given to the jury as an instruction. Another sentence of the court in its general charge to the jury upon the subject of intent is objected to by appellant, not because it does not on its face state the law correctly if applied to a sane man, but that it leaves out the consideration of the soundness or unsoundness of defendant’s mind at the time of the assault. But the court had over and over again told the jury that if the appellant was insane at the time of the assault he was incapable of forming the intent necessary to constitute the crime; and, considering all that the court had said upon that subject, the jury could not have been led astray by the omission to restate the matter again in the language to which exception was taken.