JUDGES: Shafter, J.
OPINION
SHAFTER, Judge
The indictment charges, in substance, that the defendant feloniously assaulted one Derbin with a pistol loaded with powder and ball, with intent him, the said Derbin, of his malice aforethought, to kill and murder.
First--The demurrer to the indictment was properly overruled. The indictment contains all the terms that enter into the description of the offence as given in the statute, together with allegations relating to the character of the weapon used. ( People v. Garcia, 25 Cal. 531.)
Second--After the jury had retired to deliberate upon their verdict, they returned into Court and asked " to be informed whether or not the assault made by Derbin on English outside of the door should be considered by them." To this the Court replied in effect that it could not assume that any such assault was made, and that the question of fact was with them; and they were further told that " the acts of the defendant subsequent to the assault alleged could not be considered by them, except so far as they tended to establish the theory that the defendant acted in self-defence."
The Court was right in both branches of its response. Clearly so as to the first, and as to the last, right by presumption, for the contrary does not appear. The testimony is not in the record; and if the instruction was erroneous, the point could be established in no other way than by the production of the evidence. It cannot be claimed that the instruction violates any legal principle in the abstract. The suggestion that the instruction is erroneous for the reason that it virtually forbids the jury, in passing upon the question of intent, to consider the subsequent acts of the defendant, is not tenable. The difficulty is in seeing how the subsequent acts of the defendant could have any bearing upon the question of self-defence. But if the charge was erroneous in that respect, the mistake was in the defendant's favor.
Third--The jury found the defendant " guilty of an assault with a deadly weapon with intent to inflict a bodily injury upon W. P. Derbin."
It is insisted " that the verdict under the indictment amounts only to a conviction of an assault." We consider the legal effect of the verdict to be commensurate with its terms. The offence for which the defendant was indicted was of a higher grade than that for which he was convicted (1 Hitt. Dig., p. 239, sec. 50); still as the offence of which he was found guilty is included in the crime with which he was charged, the verdict is to be followed by the same consequences that would have attended it had the indictment charged the lesser offence in terms.
It is true that the verdict does not state that " no considerable provocation appeared," nor " that the circumstances of the offence show an abandoned and malignant heart; " still averments to that effect are not essential in an indictment, and it follows that a finding on neither point is essential to a verdict subjecting the accused to confinement in the State Prison. It is enough, if it is found that the assault was with a deadly weapon and with intent to inflict bodily injury. ( People v. Nugent, 4 Cal. 341; People v. Kennedy, 5 Cal. 134; People v. Vanard, 6 Cal. 562.)
Judgment affirmed.