
    [Crim. No. 39.
    First Appellate District.
    June 21, 1906.]
    THE PEOPLE, Respondent, v. BERT OWENS, Appellant.
    Criminal Law—Assault with a Deadly Weapon—Intent to Murder —Question por Jury.—Where the defendant was convicted of an assault with a deadly weapon with intent to commit murder, and the evidence showed that the defendant had previously threatened to Mil the prosecuting witness, and went to Ms shop with a pistol, and stated that he came to Mil him and was going to do it, and was prevented from doing so by having the pistol knocked from Ms hands, the question of the intention of the defendant to murder the witness was one of fact for the jury, and their verdict on that question will not be disturbed for insufficiency of the evidence.
    Id.—Intoxication op Dependant—Presumption—Consideration op Evidence by Jury.—Where there was no evidence that the defendant was intoxicated to such a degree as to destroy his capacity for understanding the nature and effect of his acts and conduct, it must be assumed that the jury took that matter into consideration, and gave to the evidence on that subject proper weight in determining their verdict.
    Id.—Misconduct op District Attorney—Objection upon Appeal fob First Time.—A general objection to misconduct of the district attorney, wMch was not called to the attention of the court at the time, and in respect to wMch no instruction was asked, cannot be urged for the first time in the appellate court.
    Id.—Indictment and Verdict—Designation of Offense.—The fact that the indictment and verdict designated the offense of “an assault with intent to commit murder, ’ ’ as being ‘ ‘ an assault with a deadly weapon, with intent to commit murder,’’ is immaterial. By placing the words “with a deadly weapon” in the indictment, the people were -limited to proving that particular kind of assault, and the defendant was informed of the particular kind of assault wMch he must meet. If those words were surplusage, they did not vitiate the indictment or verdict.
    Id.—Instructions—Applicability to Evidence—Bequests Otherwise Given.—The court properly refused to give requested instructions and portions of instructions which there was no evidence to support, and to give requested instructions which were substantially considered in the charge.
    Id.—Motion por New Trial—Irrelevant Facts not Considered.— Affidavits embodied in the bill of exceptions setting forth proceedings had at the preliminary examination, and a charge to the grand jury, not in any respect connected with the trial, or brought to the knowledge of any of the jurors who convicted the defendant, are irrelevant, and not entitled to be considered in support of the motion.
    APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.
    The facts are stated in the opinion of the court.
    S. J. Hinds, and Lee J. Allen, for Appellant.
    U. S. Webb, Attorney General, for Respondent.
   HARRISON, P. J.

The appellant was convicted of assault with a deadly weapon with intent to commit murder, and has appealed from the judgment thereon and from an order denying him a new trial.

1. One of the grounds of his motion for a new trial was that the evidence was insufficient to sustain the verdict. His counsel concedes that there was some evidence in support of the verdict, but contends that upon the preponderance of the evidence the jury was not authorized to find that the defendant had any intention to kill Mecartea, the prosecuting witness. There was testimony that the defendant had previously threatened to kill Mecartea; that on the day the assault was made upon him he drove in a buggy to the blacksmith-shop where Mecartea was at work, and requested him to come out into the street; that Mecartea thereupon went out to the street, and the defendant, still remaining in his buggy, said to him that he had come to kill him; that Mecartea told him to go away, that he wished no trouble with him, and returned into the shop; that the defendant thereupon got out of his buggy, drew his pistol, and following Mecartea went into the shop, pointing his pistol at him. As he went into the shop he commenced to villify Mecartea, saying several times rapidly and in an excited manner as he approached him, “I came to kill you, and, damn you, I am going to kill you”; and as he did so stepped ahead, and Mecartea stepped at the same time, and knocked the pistol out of his hands, and they thereupon clinched and fell to the floor. Whether it was the intention of the defendant to kill Mecartea was a fact to be determined by the jury from all of the testimony of the witnesses, and we cannot say that their verdict is not amply sustained.

The contention of the appellant that he was intoxicated at the time, and that it is therefore apparent that he did not have such intention, is insufficient to overcome the verdict. There was no evidence that he was intoxicated to such a degree as to destroy his capacity for understanding the nature and effect of his acts and conduct; and it must' also be assumed that the jury took this matter into consideration, and gave to the evidence on that subject its proper weight in determining their verdict.

2. Another ground for reversal urged by the appellant is the misconduct of the district attorney during the trial, both in his opening statement to the jury and in his argument at the close of the testimony, and also in the form of questions put by hun to witnesses. This claim is general in its form— no special remarks or form of question being pointed out as objectionable, and it does not appear that at the trial any objection on this ground was made to either the opening statement of the district attorney or to his closing argument, or that the court was requested to interfere, or to instruct the jury in reference thereto. In the absence of such objection at the time it cannot be made for the first time in the appellate court. (People v. Beaver, 83 Cal. 420, [23 Pac. 321] ; People v. Frigerio, 107 Cal. 151, [40 Pac. 107] ; People v. Kramer, 117 Cal. 647, [49 Pac. 842] ; People v. Owens, 132 Cal. 469, [64 Pac. 770] ; People v. Bishop, 134 Cal. 682, [66 Pac. 976].) We have, however, examined the record herein, and are of the opinion that such objection would not be tenable as to the questioning of the witnesses, or that the remarks of the district attorney to the jury exceeded the limits of legitimate argument.

3. The objection that the offense named in the indictment and in the verdict that the defendant was “guilty of an assault with a deadly weapon with intent to commit murder” is not made a crime by the Penal Code, is without merit. An assault with intent to commit murder is made a crime by section 217 of that code irrespective of the mode or means by which the assault is committed. By placing the words “with a deadly weapon” in the indictment the people were limited to proving that particular kind of an assault, and the defendant was informed of the particular character of the assault which he was to meet. The words may have been surplusage, but they did not vitiate the indictment or the verdict.

4. The defendant requested the following instruction:

“Upon the question as to with what intention the defendant used the pistol in' question, if at all, the court instructs the jury the intention must be established as a fact, and proof of the said intention to kill and murder the prosecuting witness must not only show to a moral certainty that such an inten.tion was entertained by the defendant, but such was his intention at the time of using such pistol. (And it will be remembered by the jury that it is not sufficient to prove a general felonious intent or any other than the particular intent alleged in the information or included therein, and the burden of proving the alleged intent is on the prosecution.) ”

The court modified the same by striking out the portion within the parentheses, and gave it as so modified. In thus modifying the instruction as requested the court did not err. There was no evidence before the jury tending to show “a general felonious intent” on the part of the defendant, and for this reason the court was justified in modifying the instruction as requested. The testimony that he had previously threatened to kill the prosecuting witness was introduced for the purpose of illustrating the intent with which he made the assault upon him on the 25th of September, and when it was offered the defendant’s counsel stated that he “had no objection to any threat made against Meeartea.” The other portions omitted from the instruction as requested were elsewhere given to the jury; and in that portion of this very instruction which was given, the court told the jury that the intention of the defendant to murder Meeartea must be established as a fact, and “that such was his intention at the time of using the pistol, ’ ’ and the jury were repeatedly instructed that the burden of proving every element of the crime was upon the prosecution.

Other instructions requested by the defendant, to the effect that the jury must find that at the time the defendant made the assault with the pistol upon the prosecuting witness, he intended to murder him, were properly refused upon the ground that the jury had been fully instructed upon that point.

There was no evidence before them from which they would have been authorized to find that the defendant used the pistol for the purpose of striking the prosecuting witness, and the court properly refused to permit them to consider the hypothetical result of such a blow.

5. The bill of exceptions contains certain affidavits setting forth proceedings had at the preliminary examination of the defendant, and also a charge to the grand jury at about the time of the trial (not, however, by the judge of the court before whom the trial was had); but as it is not shown that these facts were in any respect connected with the trial herein, or brought to the knowledge of any of the members of the jury by whom the defendant was convicted, they were not entitled to be considered in support of the defendant’s motion for a new trial.

The judgment and order denying a new trial are affirmed.

Hall, J., and Cooper, J., concurred.  