Whitlow

Defendant was indicted for the crime of assault with a deadly weapon with intent to commit murder and was found guilty by the jury as charged in the indictment and sentenced to imprisonment in San Quentin for the term of nine years. He moved for a new trial which was denied and appeals from the judgment of conviction and from the order denying his motion.

It is contended that the trial court erred, first, in its rulings in the admission of certain testimony, and second, in its charge to the jury.

It appeared from the testimony of Charles Cook, the prose- . cuting witness, that, on November 16, 1912, defendant and one McGuinnis were engaged in the fishing business on the Sacramento River, a few miles west of the town of Chico; that Cook was engaged in buying and selling fish in said town. On the day mentioned defendant and McGuinnis came to Chico with some fish and met Cook in the afternoon about three o ’clock at a saloon; after some talk about the purchase of the fish defendant and McGuinnis had for sale and some drinks at the saloon, Cook told defendant and his partner to take their fish to Cook’s house to be weighed; Cook drove into his back yard with his fish wagon and found…