Majority — Heydeneeldt J.
p. 341*THE PEOPLE, Respondent, v. JOHN NUGENT, Appellant.
Headnote
[1] Indictment, Defense in Action. — A bare negative qualification need never be averred in an indictment, but must be relied on as matter of defense in the pro-, gress of the trial.Appeal from the Court of Sessions of San Francisco County.
The defendant was convicted of an “assault with a deadly weapon, with intent to inflict a bodily injury,” and he appealed.
Q. B. Tingley, for Appellant.
H. H, Byrne, for Eespondent.
delivered the opinion of the Court.
Mr. Ch. J. Murray concurred.
The indictment is objected to, because it does not allege the offense to have been committed “without considerable provocation. ” Although in the statute this language does qualify the character of the offense, yet it does not enter into the gist of the charge. A bare negative qualification need never be averred, but must be relied on as matter of defense in the progress of the trial.
Judgment affirmed.