Jensen

Defendant was charged with the crime of assault with intent to commit the infamous crime against nature. The jury returned a verdict by which defendant was found guilty of the lesser offense of an attempt to commit the said crime. He appeals from the judgment and the order denying his motion for a new trial.

The first point, as suggested by appellant, is that because an attempt to commit the offense with which defendant was charged might be less than the crime of an assault with intent to commit it (People v. Akens, 25 Cal. App. 373 [ 143 Pac. 975 ]), the verdict of guilty of an attempt would be tantamount to an acquittal of an assault; and, inversely, that defendant having been acquitted of an assault, the verdict necessarily carried with it an implied acquittal of an attempt.

It is clear that an attempt might be made to commit a crime of the nature of that involved in the charge made against defendant without going so far as actually to commit an assault upon the intended victim. Of the two offenses, manifestly the attempt is the lesser and is necessarily contained within the greater offense of an assault with intent to commit it.

The principle for which appellant argues is…