¶1In this cause, in which the defendant was accused by information of an assault with intent to commit murder, the Court instructed the jury inter alia as follows: “An assault to commit murder is an unlawful intent coupled with a present ability to kill a human being with malice aforethought.”
¶2To this there was an exception by defendant. It is manifestly erroneous, and was so admitted to be by the Attorney General. It omits an essential element to constitute the offense, viz., an attempt on the part of the accused, which attempt must itself be unlawful. This necessary constituent of the offense is ignored entirely in the instruction excepted to. (Penal Code, § 240.)
¶3The judgment is reversed and the cause remanded for a new trial.