People v. Leong Yune Gun

Foote, C.

The defendant was convicted of an assault with intent to commit murder. From the judgment of conviction, and an order denying a new trial, he has appealed.. The point of objection made to the instructions of the court is, that they omit to inform the jury that one of the elements constituting the crime charged against the defendant must be “a present ability” to do it.

Conceding, under section 240 of the Penal Code, that this element is essential to make out the crime, yet the evidence in this case without conflict shows that who*637ever shot at and wounded the prosecuting witness, Jare…