Crow, J.
Appellant Matteo Romano was convicted, in the superior court of King county, of the crime of assault with intent to commit murder, and has appealed to this court.
About two o’clock on the morning of March 19, 1904, while Sebastian TJcci, the prosecuting witness, was asleep in his room, in the city of Seattle, some unknown person made an attack upon him, with a sharp instrument, cutting his throat, and immediately thereafter shot him in the back. lie did not see, nor was he able to identify, his assailant. On May 12, 1904, appellant was arrested and charged with said crime. The evidence shows that, prior to his arrest, in conversations with Mrs. Sebastian TJcci, the divorced wife, and Mrs. Concheta Rosetta, the daughter of said Sebastian TJcci, appellant admitted he had made said assault. Two days after his arrest, the police officers found a shotgun and empty shell in his room, which were admitted as evidence. Fifty or sixty shot taken from Ucei’s wound, of the size of those that had been contained in the empty shell, were also admitted ¡as evidence. Officer Adams, who arrested appellant, testified that, while appellant was on the way to prison, he said to John Rosetta, husband of Concheta Rosetta, “I will cut your throat if I get out of this. I may get a year but I will cut your throat,” and that he also made angry statements, to said Rosetta in the Italian language which Adams could not understand.
From the testimony of appellant, it appears that he claims to have sustained criminal relations with said Ooncheta Rosetta, for a considerable period of time prior to his arrest; also, that much bitterness and animosity existed between him and said John Rosetta. He evidently regarded John Rosetta and his wife as being responsible for his arrest. John Rosetta testified that, while appellant was in the custody of officer Adams, he, speaking in the Italian language, said “I may get two' or three years, but when I get back I will do the same to you as I did to your father-in-law.” Mrs. Sebastian Hcci, divorced wife of the prosecuting witness, testi[243]*243fied to the admission made to her by appellant; and Mrs. Ooncheta Rosetta, daughter of the prosecuting witness, testified that about a month previous to his arrest appellant had told her that, if she did not leave her husband and live with him, he would do the same to her as he had to her father, and that he had cut and shot her father. It applears that on the day of his arrest appellant was expected to call at the house of Concheta Rosetta, and that she, being fearful of an assault, caused officer Adams to be notified, who, as the result of such notice, was 'present and arrested appellant when he arrived, at which time appellant was heavily armed.
Appellant has made three assignments of error: Pirst, that the court erred in giving the following as a portion of one of the instructions to the jury: “And I further charge you that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act ;” second, that the court should have set aside the verdict and granted a new trial, for the reason that the information does not charge appellant with shooting the prosecuting witness, and that the court therefore erred in admitting the shotgun in evidence; third, that the court erred in refusing to set aside the verdict for insufficiency of evidence as to the identity of the person who made the assault.
Appellant evidently bases his main reliance for a reversal upon his exception to the charge of the court on the question of intent, citing the case of State v. Dolan, 17 Wash. 499, 50 Pac. 472, and in his opening brief says:
“The prosecuting witness was not murdered, and the above instruction as applied to the facts of this case, left the jury to understand that, as death might have resulted as the natural consequence of the assault, the law presumes that he intended that such consequences should follow. If death had resulted from the act, the instructions would have been applicable, but this court has held that such an instruction is inap>plicable in the case of assault where death did not result, and that the intent to murder must be established as any other fact.”
[244]*244Before discussing the instructions in State v. Dolan, supra, or those in the case at bar, we call attention to a material variance of the information in the Dolan case from the one upon which appellant has been prosecuted. In State v. Ackles, 8 Wash. 462, 36 Pac. 597, this court held that, on the information then under consideration, which charged that the defendant “did unlawfully, purposely and of his premeditated malice, and with intent, to murder, assault and shoot one Benjamin Franklin with a deadly weapon, . „ with intent to murder the said Benjamin Franklin,” said defendant could not be convicted of the crime of making an assault with a deadly weapon with intent to' do’ bodily harm, for the reason that the latter crime was not included in the information. Anders, J., there speaking for this court, said:
“While it is true that the jury may find a defendant not. guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that 'accusation must precede conviction,’ and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. Const., art. 1, § 22. And this can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged. This doctrine is elementary and of universal application, and is founded on the plainest principle of justice. Tested by this rule we think the verdict and judgment in this case were erroneous, and must be set aside. Under our statute, an assault with a .deadly weapon with intent to inflict upon the person of another a bodily injury is made a felony only upon the express condition that the assault is without considerable provocation, or where the circumstances of the assault show a wilful, malignant and abandoned heart.”
The information in State v. Ackles, supra, which is set forth at page 463 of the opinion, discloses an utter absence of any allegation that the assault was without any considerable provocation, or that it was the impulse of a wilful, [245]*245abandoned or malignant heart. Bal. Code, § 7058. This couid, therefore, reversed the final judgment entered on a verdict finding the defendant guilty of the. lesser crime of an assault with a deadly weapon with intent to do bodily harm. In State v. Young, 22 Wash. 273, 60 Pac. 650, the defendant was prosecuted upon an information charging him with the crime- of making an assault upon- the prosecuting witness with a deadly weapon with intent to kill and murder said prosecuting witness. But an examination of -the information, which appears in the opinion, will show that, by reason of the use of the words, “with the intent aforesaid, no considerable provocation appearing therefor,” it was sufficient to sustain a conviction of the lesser crime of assault with intent to do bodily harm. The trial court, however, refused to instruct the jury that they could find the defendant guilty of such lesser crime, and this court, speahing through Dunbar, J., held such refusal to be prejudicial error, saying:
“The refusal of the court to give this instruction is alleged here as error.
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Crow, J.
Appellant Matteo Romano was convicted, in the superior court of King county, of the crime of assault with intent to commit murder, and has appealed to this court.
About two o’clock on the morning of March 19, 1904, while Sebastian TJcci, the prosecuting witness, was asleep in his room, in the city of Seattle, some unknown person made an attack upon him, with a sharp instrument, cutting his throat, and immediately thereafter shot him in the back. lie did not see, nor was he able to identify, his assailant. On May 12, 1904, appellant was arrested and charged with said crime. The evidence shows that, prior to his arrest, in conversations with Mrs. Sebastian TJcci, the divorced wife, and Mrs. Concheta Rosetta, the daughter of said Sebastian TJcci, appellant admitted he had made said assault. Two days after his arrest, the police officers found a shotgun and empty shell in his room, which were admitted as evidence. Fifty or sixty shot taken from Ucei’s wound, of the size of those that had been contained in the empty shell, were also admitted ¡as evidence. Officer Adams, who arrested appellant, testified that, while appellant was on the way to prison, he said to John Rosetta, husband of Concheta Rosetta, “I will cut your throat if I get out of this. I may get a year but I will cut your throat,” and that he also made angry statements, to said Rosetta in the Italian language which Adams could not understand.
From the testimony of appellant, it appears that he claims to have sustained criminal relations with said Ooncheta Rosetta, for a considerable period of time prior to his arrest; also, that much bitterness and animosity existed between him and said John Rosetta. He evidently regarded John Rosetta and his wife as being responsible for his arrest. John Rosetta testified that, while appellant was in the custody of officer Adams, he, speaking in the Italian language, said “I may get two' or three years, but when I get back I will do the same to you as I did to your father-in-law.” Mrs. Sebastian Hcci, divorced wife of the prosecuting witness, testi[243]*243fied to the admission made to her by appellant; and Mrs. Ooncheta Rosetta, daughter of the prosecuting witness, testified that about a month previous to his arrest appellant had told her that, if she did not leave her husband and live with him, he would do the same to her as he had to her father, and that he had cut and shot her father. It applears that on the day of his arrest appellant was expected to call at the house of Concheta Rosetta, and that she, being fearful of an assault, caused officer Adams to be notified, who, as the result of such notice, was 'present and arrested appellant when he arrived, at which time appellant was heavily armed.
Appellant has made three assignments of error: Pirst, that the court erred in giving the following as a portion of one of the instructions to the jury: “And I further charge you that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act ;” second, that the court should have set aside the verdict and granted a new trial, for the reason that the information does not charge appellant with shooting the prosecuting witness, and that the court therefore erred in admitting the shotgun in evidence; third, that the court erred in refusing to set aside the verdict for insufficiency of evidence as to the identity of the person who made the assault.
Appellant evidently bases his main reliance for a reversal upon his exception to the charge of the court on the question of intent, citing the case of State v. Dolan, 17 Wash. 499, 50 Pac. 472, and in his opening brief says:
“The prosecuting witness was not murdered, and the above instruction as applied to the facts of this case, left the jury to understand that, as death might have resulted as the natural consequence of the assault, the law presumes that he intended that such consequences should follow. If death had resulted from the act, the instructions would have been applicable, but this court has held that such an instruction is inap>plicable in the case of assault where death did not result, and that the intent to murder must be established as any other fact.”
[244]*244Before discussing the instructions in State v. Dolan, supra, or those in the case at bar, we call attention to a material variance of the information in the Dolan case from the one upon which appellant has been prosecuted. In State v. Ackles, 8 Wash. 462, 36 Pac. 597, this court held that, on the information then under consideration, which charged that the defendant “did unlawfully, purposely and of his premeditated malice, and with intent, to murder, assault and shoot one Benjamin Franklin with a deadly weapon, . „ with intent to murder the said Benjamin Franklin,” said defendant could not be convicted of the crime of making an assault with a deadly weapon with intent to' do’ bodily harm, for the reason that the latter crime was not included in the information. Anders, J., there speaking for this court, said:
“While it is true that the jury may find a defendant not. guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that 'accusation must precede conviction,’ and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. Const., art. 1, § 22. And this can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged. This doctrine is elementary and of universal application, and is founded on the plainest principle of justice. Tested by this rule we think the verdict and judgment in this case were erroneous, and must be set aside. Under our statute, an assault with a .deadly weapon with intent to inflict upon the person of another a bodily injury is made a felony only upon the express condition that the assault is without considerable provocation, or where the circumstances of the assault show a wilful, malignant and abandoned heart.”
The information in State v. Ackles, supra, which is set forth at page 463 of the opinion, discloses an utter absence of any allegation that the assault was without any considerable provocation, or that it was the impulse of a wilful, [245]*245abandoned or malignant heart. Bal. Code, § 7058. This couid, therefore, reversed the final judgment entered on a verdict finding the defendant guilty of the. lesser crime of an assault with a deadly weapon with intent to do bodily harm. In State v. Young, 22 Wash. 273, 60 Pac. 650, the defendant was prosecuted upon an information charging him with the crime- of making an assault upon- the prosecuting witness with a deadly weapon with intent to kill and murder said prosecuting witness. But an examination of -the information, which appears in the opinion, will show that, by reason of the use of the words, “with the intent aforesaid, no considerable provocation appearing therefor,” it was sufficient to sustain a conviction of the lesser crime of assault with intent to do bodily harm. The trial court, however, refused to instruct the jury that they could find the defendant guilty of such lesser crime, and this court, speahing through Dunbar, J., held such refusal to be prejudicial error, saying:
“The refusal of the court to give this instruction is alleged here as error. We think it was error, and prejudicial to the defendant. It is true that in State v. Ackles, 8 Wash. 462 (36 Pac. 597), we held that, under the information in that case, it was not competent for the - jury to return a verdict of guilty of assault with a deadly weapon with intent to do bodily harm, but for the reason that the lesser crime was not described in the information; there being no allegation that the assault was without considerable provocation, or that it was the impulse of a wilful, abandoned, or malignant heart. . . . Under our statute (Bal. Code, § 7058), an assault with a deadly weapon, with intent to inflict upon the person of another a bodily injury, is made a felony only upon the express condition that the assault is without considerable provocation, or where the circumstances of the assault show a wilful, malignant, and abandoned heart; and, when an act is punishable in a particular manner under certain conditions, these conditions must be set forth so as to show that the act is punishable. But the information in this case meets all the objections urged by the court in the case cited. It is alleged that the assault was made, in the manner and form stated, no considerable provocation appearing therefor ; and [246]*246as the statute is in the alternative, se far as the conditions mentioned (viz., no considerable provocation appearing, or that it was the impulse of a wilful, abandoned, and malignant heart) are concerned, the statement of the existence of either was sufficient.”
By these decisions, the law of this state is well settled to the effect that, where an information charging a defendant with making an assault with a deadly weapon with intent to commit the crime of murder is not so drawn as to include the lesser crime of assault with intent to do bodily harm, ,a conviction of the latter crime cannot be permitted; but, where it is so drawn, it would be error for the trial court to refuse to instruct the jury that the defendant might be convicted of such lesser crime.
The information in State v. Dolan, supra, which we find in the record, was not so drawn as to authorize a conviction of the lesser crime of assault with intent to do bodily harm, but corresponds to the information in State v. Ackles, supra. It therefore followed that the only crime as h> which the court was authorized to instruct the jury was the one therein charged, to wit: assault with intent to commit murder. In this case the information, omitting formal parts, is in the following language:.
“Matteo Romano is hereby accused by W. T. Scott, the prosecuting attorney in and for the county of King, state of Washington, in the name, of and by the authority of said state of Washington, and on oath by this information, of the crime of assault with intent to commit the crime of murder, committed as follows, to wit: He, the said Matteo Romano, in the county of King, state of Washington, on the 19th day of March, 1904, wilfully, unlawfully, feloniously, purposely, maliciously, and with intent to kill and murder one Sebastian Ucci, an assault did make in and upon the person of the said Sebastian Ucci with a deadly weapon, to wit, a razor, then and there had and held in the hands of the said Matteo Romano, with which he then and there wilfully, unlawfully, feloniously, purposely and maliciously struck at, cut and wounded the person of the said Sebastian Ucci, with the in[247]*247tent aforesaid, no considerable provocation appearing therefor.”
It will be seen that this information is almost identical with that in the case of State v. Young, supra; hence, it here became the duty of the trial court to charge the jury, not only as to all necessary facts which must be proven to authorize a conviction of the crime of assault with intent to commit murder, but also as to all facts necessary to be proven to warrant a conviction of the crime of assault with intent to do great bodily harm. The trial court first charged the jury as follows:
“Under this information, it is possible, should the evidence under my instructions justify it, that the defendant be convicted of any of three separate offenses: they are, (1) assault with a deadly weapon with intent to commit the crime of murder; (2) assault with a deadly weapon with intent to do bodily harm; (3) assault and battery.”
After giving this charge, the court proceeded to define the different grades of crime above mentioned and, also,-to state the facts necessary to be proven to authorize a conviction in each instance. Thereafter the following instructions, which we will number for the convenience of reference, were given:
“(1) The defendant in this case being charged with cutting and wounding one Sebastian Ucci with intent hot kill and murder the said Sebastian Ucci, before the defendant can be convicted as charged in the information, it is necessary that you be satisfied by the evidence beyond a reasonable doubt not only that the defendant did cut and wound said Sebastian Ucci, but that in so doing he intended to kill and murder said Ucci. This intent is as essential an element of the crime as is the act itself, and must be found by the jury as a matter of fact before a conviction can be had of the crime charged in the information.
“(2) If you find from the evidence that the defendant cut and wounded said Sebastian Ucci, and intended to cut and wound him, but are not satisfied that in so doing he intended to kill the said Ucci, you cannot find the defendant guilty as charged in the information. An intent to wound is not sufficient.
[248]*248“(3) I charge you that, in order to prove the crime of assault with intent to commit the crime of murder in this case, it is necessary for the state to prove beyond a reasonable doubt that the defendant, at the time and place, and in the manner and form charged in the information, cut Sebastian Ucci with a razor or other sharp instrument purposely and maliciously, intending to take his life; and that in order to prove the crime of assault with a deadly weapon with intent to inflict bodily injury in this case it is necessary for the state to prove beyond a reasonable doubt that at the time and place mentioned in- the information, the defendant purposely and unlawfully cut Sebastian Ucci with a knife or other sharp, instrument, without any considerable provocation, with the intention of inflicting great bodily injury upon the person of said Sebastian Ucci. But I charge you that such intent need not be proved by direct and positive testimony, but may be inferred by the jury from the facts and circumstances presented as evidence in this case, provided they are sufficient to satisfy you beyond a reasonable doubt of the existence of such intent; and I further charge you that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act.”
In the above quotation we have italicized the language to which the appellant has taken exception, and upon which he assigns his first error. It is contended by respondent that the exceptions taken by appellant are not sufficient to justify any consideration of said assignment by this court. We have some doubt as to their sufficiency, but will nevertheless consider the assignment on its merits. If the only crime of which the appellant could be convicted, under the information herein, was that of assault with intent to murder, the language objected to would have no place in the instruction, and under the authority of State v. Dolan, supra, might possibly be prejudicial error. It is conceded by the appellant that this language or instruction on the question of intent is not erroneous or prejudicial when applied to the crime of assault with intent to do great bodily harm, but as to that crime states the law.
Our view of the entire body of the instructions is that. [249]*249upon the different degrees of crime involved in the information, the several instructions given were proper. It will he noticed that instructions 1 and 2 above quoted are almost identical with the first and third instructions which were ashed of, and refused by, the trial court in State v. Dolan, supra, shown at pages 510 and 511 of the opinion, and which were approved by this court as proper under an information charging only the crime of assault with intent to commit murder. These instructions were given by the trial court at the request of appellant and correctly stated the law of intent as applied to the crime of assault with intent to murder. In addition to giving this charge^ it also became the duty of the trial court to instruct the jury, under the information here, on the law of intent as applied to the crime of assault with intent to do bodily harm, and our understanding of the language excepted to by the appellant is that it refers to the latter crime only.
Appellant, however, contends that because 'the court gave the instructions 1 and 2 as requested by him, and also gave that to which he has excepted, the entire body of instructions as given became inconsistent, and necessarily tended to mislead and confuse the jury. We cannot agree with this contention, as to do so would be to hold that, under an information such as the one at bar, the trial court could instruct only on the question, of intent as applied to the charge of assault with intent to murder. But if this was done and no proper instruction was given on the lesser crime, the action of the court would be error under the authority of State v. Young, supra. Considering all the instructions in the light of the information upon which the appellant was prosecuted, we are unable to find any prejudicial error.
By his second assignment of error, the appellant in substance contends that, as he was not charged with shooting the prosecuting witness, the court erred in admitting in evidence the shotgun which was found in his room two days after his arrest. In view of statements made by appellant to the vari[250]*250oils witnesses, as above narrated, and the evidence of the physician who attended the prosecuting witness, showing and identifying the shot and other articles taken from the wound, and as the prosecuting witness was actually shot by the person who cut his throat, we think this evidence was proper.
The last contention made by appellant is that the court committed prejudicial error in refusing to set aside the verdict for insufficiency of evidence to identify appellant as the person who committed the crime. An examination of the statement of facts shows this assignment to be absolutely without merit. The verdict is sustained by the evidence. The judgment is affirmed.
Mount, O. J., Dunbar, Eullerton, and Hadley, JJ., concur.