Gordon

This is an action charging the defendant with an assault with a deadly weapon upon the *423 person of one Charles H„ Potter, with intent to kill and murde' said Potter. The defendant was convicted of an assault with a deadly weapon, and fined two thousand five hundred dollars, and in default of the payment thereof, it was ordered that he be imprisoned in the county jail of Santa Clara County at the rate of one day for each four dollars of said fine, and not exceeding in the aggregate 625 days. This appeal is from the judgment, and the order denying defendant’s motion for a new trial.

Among the grounds relied upon by defendant’s counsel to support this appeal, it is claimed the court misdirected the jury as to the law of the case.

The court gave the jury the following instruction: “ Upon a trial for an assault to commit murder, the assault and the intent being proved, the burden of proving circumstances of mitigation, justification, or excuse therefor devolves upon the accused, unless the proof upon the part of the prosecution tends to show that the crime committed only amounted to an assault with a deadly weapon, with intent to inflict upon the person of the prosecuting witness…