Washburn

Appellant was charged with the offense of assault with a deadly weapon and convicted of assault. There can be no doubt that the evidence would have amply supported a verdict for the greater offense. Indeed, it is contended by appellant that the evidence “shows clearly that if the defendant was guilty of anything at all he was guilty of assault with a deadly weapon and nothing less. There is no evidence in the records of this case to show that the defendant was guilty of simple assault. . . . The prosecuting witness was hit with an irrigating shovel, four and one-half to five and one-half feet in length, weighing eight to ten pounds, with a steel blade. . . . The defendant admits this—admits he hit the prosecuting witness with an irrigating shovel—admits he broke his arm in thirteen pieces and his only defense for the doing of that act was that it was done in self-defense. ’ ’ For the foregoing reason appellant contends that the court committed grievous error by instructing the jury as follows: “The court has given you instructions covering the crime of assault with a deadly weapon; and also covering the crime of assault, which is included in the charge set forth in the amended…