Orr

Defendant was charged with grand theft of a bovine animal and assault with a deadly weapon. (Pen. Code, §§ 487, subd. 3; 245, subd. (a).) The jury found him guilty on both offenses and also of using a firearm (a .22 caliber rifle) in connection with the assault. (Pen. Code, § 12022.5.)

On appeal, defendant raises the following three contentions: 1. The evidence was insufficient to support a conviction of grand theft because it was not shown that he took part in the shooting or transporting of the animal.

2. The evidence was insufficient to support a conviction of assault with a deadly weapon because it was not shown that defendant had the present ability to commit a violent injury on Donald James Henderson, the victim.

3. The trial court committed prejudicial error in failing to instruct the jury on the lesser included offense of drawing or exhibiting a firearm.

Facts

A heifer belonging to rancher Terrill Whitlock was shot four times in the head with a .22 caliber rifle sometime in the early morning of October 19, 1973. The animal had been killed in the pasture about 200 feet from the fence which ran along a public road. The carcass had been dragged through an…