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 Hoy, in the head with a pistol-ball, had the present ability to inflict, and did inflict, that injury.
There was no dispute whatever but what the prosecuting witness was so shot at the time charged in the information, and that the person doing the injury had the present ability to accomplish it; the dispute was as to who did it, the defendant endeavoring to show that he was not the individual. ,
The jury had no need to consider whether or not the defendant had the present ability to commit the act complained of; such ability was conceded to exist, if he should be proved to have done the shooting. And the defendant made no request that an instruction be given covering the omission, If the omission was error, it was harmless.
The affidavits as to newly discovered evidence show that such evidence comes clearly within the rules laid down in People v. Sutton, 73 Cal. 243; People v. Howard, 74 Cal. 547; Hayne on New Trial and Appeal, sec. 88; and a new trial was properly refused.
There was no error in refusing the defendant’s motion for a continuance, there was no legal showing made, and the court did not abuse its discretion in the premises.
No prejudicial error appearing, the judgment and order should be affirmed.
Belcher, C. C., and Hayne, C., concurred.
The Court.For the reasons given in the foregoing opinion, the judgment and order are affirmed.