
    [No. 10,684.
    Department Two.]
    THE PEOPLE v. THOMAS DEVINE.
    Assault to Commit Murder—Definition—Instruction.—The Court instructed the jury as follows: “An assault to commit murder is an unlawful intent, coupled with a present ability to kill a human being with malice aforethought. ”
    
      Held: The instruction omits an essential element of the offense, viz., an attempt on the part of the accused.
    Appeal from a judgment of conviction in the Superior Court of Sierra County. Howe, J.
    
      Gale & Jones, for Appellant.
    
      A. L. Hart, Attorney General, for Respondent.
   The Court:

In this cause, in which the defendant was accused by information of an assault with intent to commit murder, the Court instructed the jury inter alia as follows: “An assault to commit murder is an unlawful intent coupled with a present ability to kill a human being with malice aforethought.”

To this there was an exception by defendant. It is manifestly erroneous, and was so admitted to be by the Attorney General. It omits an essential element to constitute the offense, viz., an attempt on the part of the accused, which attempt must itself be unlawful. This necessary constituent of the offense is ignored entirely in the instruction excepted to. (Penal Code, § 240.)

The judgment is reversed and the cause remanded for a new trial.  