I am unable to concur with the majority in this case.
The defendant testified that he made no assault with a knife, — had no intention of doing so. The jury therefore, if properly instructed, might have found him guilty of a simple assault. It is said that the defendant ought to have asked for an instruction on the subject, if he desired one given to the jury. I think, however, that it is the dut] of the court, without request, to tell the jury what verdicts may be rendered in cases like the one on trial, if warranted by evidence. “In charging the jury, the court must state to them all matters of law necessary for their information.” (Pen. Code, sec. 1127.) The instructions, taken in connection with the fact that the court gave to the jury three forms of verdict,—one for not guilty, one for guilty of assault with a deadly weapon, and one for guilty as charged, — in effect told the jury that no other verdict could be rendered.