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 but a simple assault, and the defendant below cannot be punished for a felony.

In Hursy v. The People, 47 Barbour, 503, the verdict was "guilty of an assault with intent to do bodily harm." It was held that this was in legal effect but a finding of guilty of simple assault, and that the sentence, being for a felony, was unauthorized.

In O'Leary v. The People, 17 How. Pr. R, 316, (also in 4 Parker, 187,) which was an indictment for assault and battery with a deadly weapon with intent to kill, the verdict was "guilty of assault and battery with intent to kill." The jury, however, did not find the defendant guilty of that which, under the New York statute, constituted a main feature of the offense, to-wit: the commission of the act "by means of any deadly weapon." The prisoner had been sentenced as for a felony to the State's prison, but the judgment was reversed.

The 50th section of the statute of California, concerning crimes and punishments, (quoted in The People v. Murat, 45 Cal., 282,) was as follows: "An assault with an intent to commit murder, rape," etc., "shall subject the offender to imprisonment in the State prison for a term not less than one year nor more than fourteen years. An assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart, shall subject the offender to imprisonment in the State prison, not exceeding two years, or to a fine not exceeding five thousand dollars, or both such fine and imprisonment."

Under the new Penal Code of that State, adopted in February, 1872, the old statutes on the subject are substantially retained. (See §§ 217, 220, 221, 245.)

The following decisions of the Supreme Court of California, although based upon the foregoing enactments, (which are different from ours) yet sustain the principle we have established in the present case: The People v. Davidson, 5 Cal., 134;