Alderson

The defendant was convicted of the offense of simple assault, upon an information charging an assault by means and force likely to produce great bodily injury. Judgment was entered upon the verdict, fining the defendant in the sum of $125 with an alternative in the county jail. From this judgment and the order denying-his motion for a new trial, the defendant appeals.

The record shows that the defendant might very properly have been found guilty of the highest offense charged in the information, as the assault consisted of striking the complaining witness with a stretcher-bar, consisting of a piece of wood about 2x4x4 feet in length. Prom the force t>f the blow the complaining witness suffered two broken ribs.

The appeal is based upon alleged errors of the court in instructing the jury. The instructions assailed are as follows: “The court instructs you that under the information in this case you may, if the evidence justifies it, find 'the .defendant guilty of either,—1: an assault by means and force likely to produce great bodily injury; or,—2: simple assault.” And further: “The court further instructs the jury that an assault is an unlawful attempt, coupled with the present…