Vasquez

The defendant was charged by information with the crime of assault with a deadly weapon' or instrument and by means and force likely to produce great bodily injury, and in a second count thereof, • with involuntary manslaughter, both alleged offenses . growing out of the same transaction. The defendant entered a plea of “not guilty” on each count, the cause was tried and the jury returned a verdict of “not guilty” on each one of the felony charges, but found the defendant guilty of assault. The court sentenced him to pay a fine of five hundred dollars and to imprisonment in the county jail of Stanislaus County for the term of six months, and from this judgment defendant appeals.

Appellant contends that there is no evidence to sustain the verdict of guilty of assault because there was no intent shown to commit the offense.

The facts are as follows: About 9 o’clock on the evening of July 30, 1926, the defendant was driving a motor-ear on a public highway of Stanislaus County. He was driving on the right-hand side of the road, but without headlights, and the evidence discloses that it was a dark night. About five hundred feet west of the city limits of Modesto his ear struck some…