Price

The information in this case charges the defendant with the crime of assault with a deadly weapon, with malice aforethought, and with intent to kill one Toomey. The jury returned a verdict finding the defendant guilty of the lesser offense of assault with a deadly weapon. He was thereupon sentenced to pay a fine of $700, or in default of payment that he be imprisoned in the county jail in the proportion of one day’s imprisonment for every $2 of such fine. His motion for a new trial was denied, and this appeal is from the judgment and order.

We have examined the evidence, and it is not deemed necessary to discuss it, but only to say that we find it sufficient to sustain the verdict of the jury.

There was no error in the court’s refusal to give the defendant’s requested instruction as to the law pertaining to an officer making an arrest without a warrant, and as to the right of the defendant to resist an unlawful arrest. If it be conceded that Toomey, the constable, had no warrant or legal authority for making the arrest, such fact would not in any way excuse the defendant for shooting at and wounding the said constable. It is sufficient to say that the constable approached the…