Vanard

Mr. Justice Terry concurred.

The first error relied on by the appellant is the refusal of the Court to continue the cause on the ground of the absence of a material witness. The affidavit does not show sufficient diligence on, the part of the prisoner and the application was therefore properly denied.

The next objection which is urged, is the informality of the verdict. The defendant was indicted for “ an assault with the intent to commit murder.” The jury found the prisoner “ guilty of an assault with the intent to do bodily injury.”

In the case of the People v. John Nugent, 3 Cal., 341 , we held that an indictment for an assault with a deadly weapon, with the intent to do great bodily injury, need not contain the allegation that the same was “committed without considerable provocation;” that although such language qualifies the character of the offence, yet it does not enter into the gist of the charge; that the words are a negative qualification of the offence which need not be averred, but must be relied on for defence on the trial.

In the present case it is apparent that the verdict does not find the prisoner guilty of the crime charged in the indictment, to wit: “ an…