Ramirez

Defendant was accused and convicted of the crime of assault with intent to commit murder, in that he made an assault with a deadly weapon upon one Lorenzo Ramirez with intent to kill and murder the said Lorenzo Ramirez. Defendant appeals from the judgment. There was no motion for a new trial. The points relied upon in support of the appeal are those hereinafter stated.

It is admitted by counsel for appellant that the evidence is sufficient to prove (although there is evidence to the contrary) that appellant fired the shot which struck Lorenzo;. but he contends that the murderous intent, if any, was directed toward one Laura Salcido. From the evidence on which the verdict depends the facts appear to be that appellant fired at Miss Salcido; that the shot missed her and hit the hoy Lorenzo, and that there is no evidence that appellant actually intended to hit Lorenzo.

Taking into consideration this state of the evidence, appellant contends that the court erred in giving to the jury the following instruction: “When one intends to assault a certain person with a deadly weapon and by mistake or inadvertence assaults another person with such deadly weapon in his stead, it is…