Territory of Arizona v. West ( 1894 )

BAKER, C. J.

I concur in the judgment, but do not agree with some of the reasons given, and think that others are not necessary to the result. The indictment charges an assault with intent to murder, and avers that the assault was made with a deadly weapon. This being so, the last-named offense is necessarily included in the former; and for that reason the jury was very properly told that it could find defendant guilty of the lesser offense. Pen. Code, par. 1715; People v. Pape, 66 Cal. 366, 5 Pac. 621. The defendant, having failed to request the court to define what constitutes a deadly weapon, cannot be heard to complain of his own neglect. Pen. Code, pars. 1677, 1678; People v. Flynn, 73 Cal. 511, 15 Pac. 102.

SLOAN, J., concurs in the judgment.