
    [No. 20216.
    Department One.
    September 18, 1886.]
    THE PEOPLE, Respondent, v. HARRY FRANKLIN, Appellant.
    Criminal Law—Assault with Deadly Weapon with Intent to Murder — Conviction for Lesser Offense—Instruction. — In. a prosecution for an assault with a deadly weapon with intent to murder, the omission of the court to instruct the jury as to its power to convict for a lesser crime necessarily included in the charge is not error, if the evidence would not warrant a conviction for the lesser crime, or if a request for such an instruction was not made by the defendant.
    Id. —Evidence of Drunkenness—Admissibility of—Must be Received with Caution. —In such a case, evidence of the drunkenness of the defendant must be received by the jury with great caution, and can be considered by them only for the purpose of determining the degree of the crime by showing that his mental condition at the time of the assault incapacitated him from deliberately forming an intention to murder; but it cannot be considered in determining whether he committed an assault with a deadly weapon with intent to inflict great bodily harm.
    Id. — Deadly Weapon Defined. — A deadly weapon is one likely to produce great bodily harm. A knife may be such a weapon.
    Appeal from a judgment of the Superior Court of Napa County, and from an order refusing a new trial.
    The sixth instruction was to the effect that the drunkenness of the defendant at the time of the commission of the crime was no excuse therefor, and evidence thereof should be received with great caution, and could only be considered for the purpose of determining the degree of the crime by showing that the mental condition of the defendant at the time of the assault was such that he was incapable of deliberately forming an intention to murder; but that in determining whether the defendant committed an assault with a deadly weapon with intent to inflict great bodily harm, evidence of his intoxication could not be considered. The ninth instruction was to the effect that a deadly weapon is one likely to produce great bodily harm, and that the knife with which the assault in question was committed was such a weapon. The further facts are stated in the opinion of the court.
    
      
      Pinney & Gesford, for Appellant.
    
      Attorney-General Marshall, and Henry Hogan, for Respondent.
   Ross, J.

The defendant was charged by information with the crime of assault with a deadly weapon with intent to murder one Hemmenway, and was convicted of assault with a deadly weapon with intent to do great bodily harm.

The case shows that defendant, while very drunk, assaulted and cut with a knife the said Hemmenway, who was a stranger to him, and whom he casually met on a railroad track.

It is objected on the part of the appellant that the court below erred in its eighth instruction, in that it omitted to inform the jury that they might find defendant guilty of a simple assault. The instruction reads:—

“If, after a due and careful consideration of all the evidence, you entertain a reasonable doubt of the guilt of the defendant upon the charge of an assault with intent to commit murder, it will be your duty then to inquire as to whether he may be guilty of any lessep offense necessarily included therein. There is one, as follows: assault with a deadly weapon, which is an assault committed upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury.”

The objection is not well taken, for two reasons: in the first place, because upon the evidence defendant could not have been properly convicted of a simple assault, and the court was therefore right in omitting to instruct in respect to that offense; and secondly, if defendant wanted the attention of the jury specifically called to each of the lesser crimes necessarily included in the charge set out in the information, he should have requested the court to do so, which he does not appear to have done.

The sixth instruction, in respect to the intoxication of the defendant, was substantially correct. (People v. Lewis, 36 Cal. 531; People v. Williams, 43 Cal. 344; People v. Ferris, 55 Cal. 588; People v. Turner, 65 Cal. 540.)

The ninth instruction was in accordance with the ruling of this court in People v. Fuqua, 58 Cal. 247, and was correct.

Judgment and order affirmed.

McKinstry, J., and Myrick, J., concurred.  