Durand

Defendant was convicted of the crime of assault with a deadly weapon. He appeals from the judgment on a bill of exceptions duly settled and allowed. There was no motion to instruct the jury to acquit when the prosecution rested, nor for a new trial, and there is in the record no exception taken to any ruling or decision of the court. The court instructed the jury as follows: "That in order to convict the defendant of the crime charged in the complaint, it must appear from the evidence, beyond a reasonable doubt, that the alleged assault was made with a deadly weapon, and that it is incumbent on the prosecution to prove beyond a reasonable doubt and to a moral certainty that the weapon mentioned in the information was in fact a deadly weapon.” The point made by defendant is, that although the instruction is a correct statement of the law, the evidence is insufficient to establish as a fact that the weapon with which defendant was assaulted was a deadly weapon, and hence the verdict was in violation of the instruction given.

The attorney-general contends that the sufficiency - of the evidence may not be inquired into on this record.

It was held in People v. Keyser, 53 Cal. 183 ,…