In denying the application for a hearing in this court after decision by the district court of appeal of the second appellate district, we deem it proper to say that we are not prepared to give our assent to the statement that there was no error in giving an instruction to the effect that in theabsence of evidence to the contrary, the "natural presumption" that one who assails another violently with a dangerous weapon, likely to kill, and which does in fact injure the party assailed, intended death or great bodily harm must prevail. The charge here was assault with intent to commit murder, a charge as to which a specific intent to kill was an essential element. The existence of such intent was a matter to be proved by the prosecution, and while the jury were at liberty to infer such intent from such facts and circumstances as were stated in the instruction, it cannot be held to be a correct proposition oflaw to say substantially that they must so infer. But defendant was convicted of the lesser offense of assault with a deadly weapon, an offense involving no specific intent to kill or to do great bodily harm. (Pen. Code, sec. 245; People v. Turner,65 Cal. 540, [4 P. 553]; People v. Mize, 80 Cal. 41, [22 P. 80].) Under these circumstances, it cannot be held that defendant was prejudiced by the instruction. (See People v.Gordon, 88 Cal. 422, [26 P. 502].)
Sloss, J., Melvin, J., Lawlor, J., and Shaw, J., concurred. *Page 623