(concurring.) I concur with Hr. Justice Daniels in the conclusion that it is an assault with a loaded fire-arm to shoot at a person with intent to kill, though accidentally the bullet does not happen to be propelled from the pistol. The statutory assault is not with an expelled bullet, but with a loaded fire-arm. When the weapon is loaded, but snaps, the actor has done everything in his power to effectuate the deadly purpose. He cannot escape because of the accident which frustrated that purpose, any more than if the bullet were expelled, but missed its mark. The request was bad, if the hypothesis came within the definition of assault in the second degree, for such request was in the disjunctive. An assault in the second degree does not require an intent to kill, nor even the use of a loaded fire-arm. All that is demanded is the willful and wrongful use of a weapon likely to produce grievous bodily harm. Pen. Code, § 218, subd. 4. Clearly, the snapping of a pistol pointed at the complainant, with intent to fire, was such an assault “by the use of a weapon likely to produce grievous bodily harm.” But, further, the hypothesis was without foundation. There was no evidence even tending to support the claim that the only time the pistol was aimed at the complainant was when it snapped. Hor was there testimony from which this, as one of two possible inferences, could be deduced. The defendant denied that he ever pointed the pistol at the complainant, either when it went off or when it did not. The complainant said nothing directly about when or how it went off, but declared that he heard the click, saw the flash, and almost felt the heat of the ball as it passed his neck. Again, he testified that he saw a flash and felt a concussion at the back of his head. At these times the pistol was certainly aimed at the complainant, and it is equally certain that it went off. Upon such testimony, it was absurd to talk of the time when the pistol snapped and did not go off as the only time when it was aimed at the complainant. The court gave the jury all the instructions properly called for by these facts, and it was not error to refuse to supplement such instructions with those called *245for by this request. These were the instructions actually given: “If you believe the story of the defendant, that he did not point this weapon at the man at all, of course he is not guilty. That is certain; because, if he did not aim it at him, but aimed it at the ground and sky, then he did not so point as to inflict any wounds at all upon this man, and he is not guilty. But, if you believe that he pointed it at him, the fact that he was a bad marksman does not relieve him.” Besides this, the fullest definition was given of the crimes charged in the indictment, with appropriate explanations as to the applicability of the evidence. The case, therefore, comes within the principle laid down in Slatterly v. People, 58 N. Y. 357, that “when the instructions of the court are unexceptionable as to the offense charged, and for which the prisoner is on trial, and such instructions cover every element of the crime, and correct rules for the proper application of the evidence, it is not strictly the right of a prisoner to ask instructions upon a hypothetical case, based upon other facts.”
Upon all the other questions discussed I also concur. But I must be permitted to dissent from the suggestion that “in criminal cases it is not advisable to apply, as against the defendant, the strict rules of evidence for the disposition of even immaterial inquiries.” There should, of course, always be firm, and even tender, consideration for a defendant’s rights; but the object of the trial should never be overlooked, namely, to reach the truth. That result cannot well be expected, if parties are permitted to wander from the real issues. Inquiries irrelevant in substance and argumentative in form only tend to confuse juries, or to warp their minds. The.guilty should not be afforded that kind of an opportunity to escape. The innocent need no such devices. The judgment, I agree, should be affirmed.