Territory of Arizona v. Hancock ( 1894 )

BAKER, C. J.

The appellant was indicted for assault with intent to commit murder, and convicted of an aggravated assault. The following instruction was given for the prosecution, the giving of which is assigned as error: “If you believe from the evidence beyond a reasonable doubt that the defendant, at any time within the time specified,—within five years next before the finding of the indictment,—made an assault upon Mrs. Huberkorn with a deadly weapon, then you might find by your verdict the defendant guilty of an aggravated assault.” The charge in the indictment is, that the assault was made with a deadly weapon, and this instruction was doubtless drawn and given as if authorized by subdivision 6 of section 390 of the Penal Code, being one of seven circumstances under which the aggravated assault may be committed, which reads as follows: “When committed with a premeditated design and by use of means calculated to inflict great bodily injury.” But there is an entire absence in the instruction of any reference to the “premeditated design” necessary to constitute the offense under this subdivision. The jury were told, in effect, that if the defendant made the assault with a deadly weapon, he was guilty of the offense of an aggravated assault, whether done with or without “premeditated design.” The reading of the statute did not cure the defect. This we decided in the case of United States v. Romero, post, p. 193, 35 Pac. 1059. The whole of section 390 of the Penal Code ivas read to the jury. This defines no less than seven different circumstances under which an aggravated assault may be committed, many of which have no reference whatever to the evidence in this case. Instructions ought to have some slight reference to the case made by the evidence. People v. Roberts, 6 Cal. 217. An instruction having no reference to the evidence is calculated to confuse and mislead. Amann v. Lowell, 66 Cal. 307, 5 Pac. 363. The judgment is reversed, and a new trial granted.

Sloan, J., and Hawkins, J., concur.

Rouse, J., not sitting.