No. 10,998;
October 3, 1884.
4 Pac. 763.
Instructions'.—Where the Evidence Warrants an Instruction Suggesting a Theory not presented hy any other instructions given, it is the duty of the court to give the same at the request of one of the parties.
APPEAL from the Superior Court of the City and County of San Francisco.
The defendant was charged with assault with intent to commit rape. The usual instructions defining the crime, etc., were given. The defense then requested the court to instruct the jury that if defendant did not intend or attempt to have carnal intercourse with the child, but simply placed himself in close proximity to her for the purpose of satisfying his depraved taste, the offense did not constitute an assault with intent to commit rape. The instruction was refused. Defendant appealed.
T. H. Riordan for appellant; Attorney General Marshall for respondent.
The eleventh instruction which the defendant requested to be given, and the court refused to give, to the jury, suggested a theory of the case which was not suggested by any of the instructions given, and we think the court erred in refusing to give it. The evidence, in our opinion, entitled the defendant to have that instruction given.
Judgment and order reversed, and cause remanded for a new trial.
2 Cal. Unrep. 382
4 Pac. 763
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