Majority
p. 263[No. 10,364.] THE PEOPLE v. WM. A. FINE.
Headnote
Iztoictmeíít—Ekroueous Dtstbuctioit. — Where a party is indicted for an assault with an intent to commit murder, it is error to instruct the jury that if they find a verdict of guilty they must convict the defendant of the offense charged in the indictment.
p. 264Attorney- General Hamilton, for the People.
Appeal from the County Court of Colusa County.
The defendant was convicted of an assault to commit murder, and appealed.
Hines & Brooks, for Appellant.
The intention with which the cissault was committed was a material issue of fact to be determined by the jury; and if the assault was committed, not with the intent to commit murder, as charged in the indictment, but to do great bodily harm or some lesser’ offense included in the greater one charged in the indictment, the jury might have convicted the accused of the lesser offense. But the Court instructed the jury that if they found a verdict of guilty they must convict him of the offense charged in the indictment. This was error.
Judgment and order reversed, and cause remanded for a new trial.