Vierra

This indictment is not sufficient to sustain a conviction for the offense attempted to be charged. An averment that the defendant was armed with a deadly weapon and made an assault, is no statement of the fact that the assault was with the weapon. He may have been thus armed and yet have committed a simple assault, or an assault with some other instrument not deadly in its character. The indictment should have stated directly and certainly that the assault was with the weapon; that is, that the weapon was used by the defendant as an instrumentality of the assault. (Penal Code, secs. 245 and 952; People v. Venard, 6 Cal. 562 ; People v. Jacobs, 29 Cal. 579 ; People v. Cougleton? 44 Cal. 93 .)

*452 Jo Hamilton, Attorney-General, for the People.

The indictment, at the most, charged a simple battery,, and its allegations will not support a judgment, as for a felonious assault. '

Judgment reversed, and cause remanded. Remittitur forthwith.

I dissent, on the ground that, in my opinion, the indictment sufficiently charges an assault with a deadly weapon.