Stephens

Upon an information charging him with the crime of assault with intent to commit murder, defendant was convicted of the crime of assault with a deadly weapon. He appeals from the judgment pronounced that he be punished by imprisonment in the state prison for the term of one year and required to pay a fine of one thousand dollars. Numerous errors are assigned upon which appellant asks for a reversal, chief among which it is contended that there was no evidence to support the verdict. It appears that Mr. *Page 618 Bosworth, the owner of an apricot orchard within the city limits of El Centro, having discovered that someone was stealing his fruit at night, employed one Bernard Fox to guard the orchard in an effort to apprehend the person engaged in pilfering. After dark on the evening of June 2d, Fox, who was armed with a shotgun, and while on duty as such guard, saw a person enter the orchard and proceed to pick fruit from the trees; whereupon he approached him and, while engaged in conversation, the party started to cross the fence inclosing the orchard, at which time Bosworth came upon the scene and, using a flashlight, looked at the person so apprehended by Fox. Bosworth…

In denying the application for a hearing in this court after decision by the district court of appeal of the second appellate district, we deem it proper to say that we are not prepared to give our assent to the statement that there was no error in giving an instruction to the effect that in the absence of evidence to the contrary, the "natural presumption" that one who assails another violently with a dangerous weapon, likely to kill, and which does in fact injure the party assailed, intended death or great bodily harm must prevail. The charge here was assault with intent to commit murder, a charge as to which a specific intent to kill was an essential element. The existence of such intent was a matter to be proved by the prosecution, and while the jury were at liberty to infer such intent from such facts and circumstances as were stated in the instruction, it cannot be held to be a correct proposition of law to say substantially that they must so infer. But defendant was convicted of the lesser offense of assault with a deadly weapon, an offense involving no specific intent to kill or to do great bodily harm. (Pen. Code, sec. 245; People v. Turner, 65 Cal. 540 , [ 4 P. 553 ];…