The defendant was indicted, tried, and convicted, in the Court of Sessions of Yuba county, of an assault with intent to commit murder. A motion for a new trial, on the ground that the verdict was against law and the evidence, was made and overruled, and the defendant appealed.
*422•-¡-The indictment -charges the assault to have been eofnmitted with a knife upon the person of one Ira Marsh,'the prosecuting witness in-thé case.' -The record purports to give the su'bstáhee of-all that was proved oh the trial on the part of the prosecution ; and it appears-that the defendant, whilst in a! state OfihtoiiCation, put one hand-around Marsh, and struck á blow with the pther hand, in which was "held a 'scabbard, With a handle apparently of a knife; but it does not appear that the blow was struck with any-violence,-or-that it produced ány injury,1 of th'atú'ny attempt was made to use the knife or other weapon which jfche "scabbard might have contained; and the previous relations between -the defendant and the-witness, up to the moment of the commission of the assault, were of a friendly character.1' ' ;" "
- The loose expression" of the1 defendant, that but for ttie seabbard on'the knife, he could or would have killed :tlie -witness, evidently-referredto the consequences of á blow with thé weapon unsheathed,-and not-to-his intent at the time. The facts, as detailed in the record; fail- entirely to support the verdict;1 and as there was no conflict of testimony in the casé1, a-new trial should have-been-granted. - - , - . ¡ - ;
- On a motion for a new trial-in a criminal caserón the ground that the "verdict is against the evidence,;it is'usual to set out in the statement on which the motion is made, all the material portions of the testimony, and as a general rule this Court will not review, on appeal, an order refusing a new trial on that ground, unless such testimony is contained in the record. In the present case, the testimony is not set forth,, but the record states that it gives “in substance all that was proven on the part of the State.” This is sufficient; the facts, as proved, being given, there can be no necessity of setting'forth the,testimony'.^ i '"
Judgment reversed, and cause remanded for a new trial. - -