Scott

Defendant was convicted of an assault with intent to commit murder, and now prosecutes an appeal to this court. The instructions asked by defendant and refused were substantially given in the charge of the court. Neither do we think the evidence was of the character upon which to predicate an instruction that the defendant could be convicted of a simple assault. He was either justifiable or guilty of a graver offense. (People v. Madden, 76 Cal. 521 .) Again, if counsel desired such an instruction to be given, he should have requested the court to that effect.

It is insisted that the court erred in refusing to allow defendant to ask.the prosecuting witness, on cross-examination, questions concerning alleged threats made by said witness against defendant prior to the day of the shooting. These matters were not adverted to in the examination in chief, and could only be proper in cross-examination for the purpose of indicating the prejudice and bias of the witness upon the stand, and thereby tending to weaken the effect of his testimony. Inasmuch as the witness was then testifying in the role of a prosecuting witness against the defendant, upon an accusation charging the defendant…