People v. Stanton

Appellant was convicted of violating the provisions of section 244 of the Penal Code, which provide: “ Every person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one, nor more than fourteen, years.” The evidence in the case proves conclusively that the appellant intentionally threw vitriol at and upon the prosecuting witness Stember, and that such vitriol burnt both his clothes and his person.

Upon the information, and evidence offered thereunder, appellant’s counsel asked the court to instruct the jury that his client might be convicted of a simple assault, or of an attempt to commit the offense charged, and this the court declined to do. The court based its refusal upon the ground that an assault was not a crime included in the offense charged in the information, and that an instruction upon the question of attempt was not justified by the evidence. We are of the opinion that an assault is a necessary element of the…