
    THE PEOPLE, Respondents, v. J. D. COZAD, Appellant.
    Criminal Law — 'Verdict—Judgment.—On an indictment for an assault witli intent to commit murder, when any less grade of offense is found by the jury, the verdict must show the character of the offense so found, and the judgment must not exceed that warranted by the verdict.
    Appeal from tbe second judicial district, Boise county.
    
      H. L. Preston, for tbe appellant:
    Tbe verdict of tbe jury found tbe defendant guilty of an assault only, and recommended to tbe clemency of tbe court. That the maximum of imprisonment allowed to said offense was six months in tbe county jail (Stats., sec. 46, p. 444), whereas tbe court below inflicted by its judgment one year’s imprisonment in tbe penitentiary.
    
      J. J. May, district attorney, for tbe respondents.
   MoBblde, O. J.,

delivered tbe opinion of tbe court,

Cusi-mins, J., concurring.

This is an appeal from tbe judgment of tbe district court of Boise county, sentencing tbe defendant to confinement in tbe territorial prison for one year. Tbe defendant was indicted for tbe crime of .an assault witb an intent to commit murder by shooting one Thomas Poye. Tbe defendant was tried, and a verdict of “guilty of assault only” returned by tbe jury. Tbe court received tbe verdict, and thereupon sentenced tbe defendant as above. Exception was taken to this sentence, and no other facts connected witb tbe case appear of record. In tbe absence of any statement or record of tbe proceedings beyond these, tbe case must be disposed of upon what appears. Tbe presumption is that tbe jury were instructed, that if they found tbe defendant guilty of any less offense, necessarily included in tbe commission of tbe crime charged in the indictment, they might return him guilty of such offense. Tbe fact that the jury did find him guilty of a lesser offense, and that the court received tbe verdict, presupposes such an instruction.

It is but fair to assume tbat tbe facts proven on tbe trial were of a character to sbow tbat tbe assault tvas of a character to constitute it a felony, viz., by tbe use of a deadly weapon. But neither tbe instructions nor tbe facts are of record, and tbe case standing hére unsupported by tbe proofs upon which no doubt proceedings were based in tbe court below, must be decided from tbe record.

On an indictment for an assault with intent to commit murder, when any less grade of tbe offense is found by tbe jury, tbe verdict must show tbe whole character of tbe offense found. Such is tbe ruling in California, though upon what principle a jury are called upon to find all tbe facts required in 'an indictment in their verdict does not appear from those decisions. But we defer to these authorities as settling tbe rule. Tbe indictment charged tbe defendant with an assault with intent to commit murder by shooting Thomas Boye. Tbe jury find him guilty of the assault charged, but as tbe verdict does not show tbat tbe assault was with a deadly weapon, etc., tbe court below bad no right to assume that they bad so found, and pass sentence on that basis, whatever tbe facts may have been. Tbe case of tbe People v. Vanard, 6 Cal. 562, People v. Wilson, 9 Id. 260, are adjudications directly on tbe point. Tbe doctrine of these cases clearly shows tbat tbe court erred in passing sentence on defendant as for felony. He should have been sentenced for a misdemeanor only.

Tbe order will be tbat tbe sentence of tbe court below be set aside and the case remanded, with an order to tbe court to affix tbe punishment in accordance with tbe provisions of section 46 of tbe act concerning crimes and punishments.

Judgment reversed.  