McInerney.

The appellant was convicted upon the charge of assault with intent to commit robbery, and appeals from the judgment and order denying his motion for a new trial.

The charging part of the information was as follows: “Assault with intent to commit robbery, committed as follows: The said John W. Melnerney on the 10th day of May, A. D. 1915, at the said city and county of San Francisco, State of California, did then and there willfully, unlawfully, feloniously and with force and violence and with a deadly weapon, to wit: a loaded revolver, make an assault in and upon the person of one Prank 6. Beutler with the felonious intent then, there and thereby, by force, violence and intimidation, to seize, steal, take and carry away the money, goods and chattels of the said Prank G. Beutler from the person and immediate presence and against the will of the said Prank G. Beutler.” Upon the trial the evidence, while otherwise sufficient to justify a conviction, was insufficient to show that the defendant made the assault in question “with a deadly weapon, to wit, a loaded revolver”; and the appellant here contends that his conviction cannot therefore be sustained, for the reason that the…