44 Cal. 92 | Cal. | 1872
The prisoner was indicted for the offense of assault with intent to commit murder, and found guilty of an assault with a deadly weapon,-with intent to do bodily harm on the person, etc. The appeal is taken from the judgment upon the verdict.
1. The indictment is sufficient in form and substance, as one for the crime of assault with intent to commit murder. This we understand to be conceded by the prisoner’s counsel. But it is claimed that though the indictment be sufficient to sustain a conviction for that particular offense, or for a simple assault, as being included in the charge, it will not support a conviction for an assault with a deadly weapon made with intent to do bodily harm on the person of another. This point is rested upon the circumstance that the indictment here fails to designate the particular character of the weapon used, as being a pistol or knife, etc., and avers it in general
The indictment here alleges that the prisoner committed the assault with a deadly weapon with an intent to do murder, and the verdict finds that he committed the assault with a deadly weapon, not with intent to do murder, but to do bodily harm—a distinct offense, but one which is necessarily included in that charge in the indictment. (People v. Davidson, 5 Cal. 133; Ex Parte Ah Cha, 40 id. 426, and cases there cited.)
2. It is next objected that the verdict, as found, is one for a simple assault merely. Its language is, “ guilty of an assault with a deadly weapon with intent to do bodily harm on the person of A. P. Murphy.” The offense as defined by the statute is, “ an assault with a deadly weapon * * * with intent to inflict, upon the person of another a bodily injury.” (Sec. 50.) “To do bodily harm upon the person ” of another is certainly “to inflict upon the person of another
3. The only other point relied upon arises upon the denial of the motion made by the prisoner to remove the action from the County of Humboldt, where the indictment was found, on the ground that a fair and impartial trial could not be had therein. The statute provides that if the Court be satisfied of the fact that a fair trial cannot be had, it shall order the action to be removed to a county free from the like objection. The allowance or refusal of an application to change the place of trial in a criminal case has always been held largely discretionary in the Court—the motion is addressed to its sound discretion and to be disposed of in furtherance of substantial justice. (People v. Fisher, 6 Cal. 154.)
In this case the affidavits upon which the motion was based were exceedingly unsatisfactory; they, in the main, set forth merely that in the belief or opinion of the affiants the prisoner could not have a fair trial, owing to the popular prejudice against him. It seems, too, that no difficulty was found in obtaining a jury wholly free from bias or prejudice against the prisoner; and, under the circumstances, we cannot say that the Court abused its discretion in denying the motion.
Hor is it worth while to inquire if there was any irregularity in entering the order denying the motion in vacation instead of in term time, for if there was it would certainly work no substantial injustice to the prisoner in any respect. (Crim. Pr. Act, Secs. 484, 499.)
Judgment affirmed.
Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.