100 Cal. 150 | Cal. | 1893
The defendant was found guilty by a jury, and sentenced by the court to seven years imprisonment in the state prison, upon an information, for mayhem, committed upon one W. R. Jones on the nineteenth day of December, 1891.
The defendant pleaded not guilty, and also pleaded that he had once been in jeopardy for the offense charged, and also a further plea that he had been convicted of the offense charged upon judgment of the superior court of the same county of Calaveras.
The appeal is from the judgment and from an order denying his motion for a new trial. The bill of exceptions shows that on the nineteenth day of December, 1891, the complaining witness, Jones, was seated in Raggio’s store; that the defendant came in and, after addressing some abusive language to Jones, struck him upon the head with a whisky glass; that Jones got up, whereupon the two men seized each other, and in the struggle
The fight lasted about a minute and a half or two minutes, when the parties were separated by others who were present. The bite caused an abrasion upon the thumb between the first and second joints about the size of the head of a lead-pencil. The complaining witness the same day went to a physician and had the wound upon his head dressed, but did not call the attention of the physician to the injury to his thumb.
The following day he returned to the physician complaining of pains in his thumb, and received treatment therefor with a view to prevent blood poisoning. The treatment seems not to have been successful, and a few days later it became necessary to amputate the thumb.
Afterwards, on the fourth day of February, 1892, two informations were filed against the defendant, the first charging him with an assault upon the prosecuting witness, Jones, with a glass tumbler, with intent to kill and murder said Jones, and the second for mayhem.
In June, 1892, the defendant was tried upon the first information and convicted of an assault, and judgment was duly entered against him that he be imprisoned in the county jail of the county of Calaveras for the term of three months; and the defendant was then remanded to the custody of the sheriff under said judgment. This judgment was entered June 10, 1892, and the trial upon the charge of mayhem was immediately proceeded with.
Upon the trial of the information for mayhem, the defendant offered in evidence the information for as- - sault with intent to murder, together with all the proceedings thereunder, including the verdict of the jury finding him guilty of assault, and the judgment of the court thereon, to which evidence the people, by the district attorney, interposed an objection, which was sustained by the court, and the evidence excluded, and the jury were instructed by the court upon each of these
No question is made as to the form or sufficiency of the pleas, nor as to the fact that there was but one conflict between the prosecuting witness and the defendant. The court erred in excluding the evidence offered by defendant in support of his pleas of former conviction and of once in jeopardy, and in instructing the jury to find upon those issues for the people.
The constitution provides that no person shall be twice put in jeopardy for the same offense.” The question arising under this provision is, what facts shall be held to constitute “ the same offense” in any given case ? That there are cases where at the same time and apparently by the same act different and entirely distinct offenses may be committed need not be disputed. But this is not one of them. It is assumed on the part of the people that evidence to support the information for mayhem would not prove an assault with intent to murder, and that that is the test by which the question at issue is to be determined. But in this counsel are mistaken. Section 1159 of the Penal Code is as follows: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”
It was therefore entirely proper to charge the assault with intent to murder in a single count, and the effect of so pleading, the conviction being for assault only, is an acquittal of the higher offense; and a conviction of the lower gave the conviction precisely the same effect, for the purpose of a plea of former conviction, as though the information had been for that offense only.
The information for mayhem does not in terms charge an assault, and it is not necessary, under section 1159 of the Penal Code, that it should. Nevertheless, an assault by the defendant upon the prosecuting "witness is an essential element of the charge of mayhem; and, under the common-law system of pleading, it was always al
It is clear, therefore, that under section 1159 of the Penal Code, above cited, the defendant might have been convicted of an attempt to maim, or of an assault only; and if of an assault there would have been two convictions for precisely the same offense. Nor does it make any difference that the conviction was for the higher offense of mayhem, since that offense could not be proved without proving the assault for which he had already been convicted. The doctrine of merger, to which great importance is given in many of the cases, cannot aid the respondent. If the information for mayhem had been the only one filed, the conviction would have merged the lower included offense of an assault, but the conviction of mayhem could not merge a prior conviction and judgment for the same assault.
The circumstances under which courts have been called upon to determine what facts constitute the same offense have been so different and numerous that the authorities upon this subject are seriously conflicting, so far as the general question is concerned. I think, however, the views I have endeavored to express are amply sustained by the great weight of authority.
In Bishop’s New Criminal Law, section 1058, subdivision 3, the learned author says: “A man convicted of an assault cannot afterwards bee prosecuted for the battery in which it terminated; because, said Totten, J., ‘ the one is a necessary part of the other; and if he be now punished for the battery, he will thereby be twice punished for the assault.’ (State v. Chaffin, 2 Swan. 493.) And by the general and better doctrine, a conviction or acquittal of a common assault will bar proceedings for an assault with intent to do great bodily harm, and other assaults aggravated in like manner.” The only established exception to the foregoing proposition is where death subsequently occurs as a result of the as
The case of People v. Majors, 65 Cal. 138, 52 Am. Rep. 295, cited by respondent, is not in point. There two men were murdered at the same time and by the same act. The defendant, having been convicted of the murder of one, to an indictment for the murder of the other pleaded a former conviction of the same offense. This court properly held that the murder of different persons, though by the same act, constituted different offenses, and that a conviction for one could not be pleaded in bar of the other.
In People v. Stephens, 79 Cal. 428, the prosecution was for libel. The court said: “The only question in this case is whether the second prosecution is for the same offense as the first. If so, it cannot be maintained. The first prosecution was for a libel contained in an article published by the defendant in a newspaper. The second prosecution is for a libel contained in the same article and published in the same issue of the same newspaper as the first. The words alleged to be defamatory are not the same in both instances. If they were, the case would be a plain one, but the publication in both cases was one and the same act. ‘The act which is the essential element in the wrong, slander, and libel, is a wrongful publication of language.’ (Townshend on Slander
In Wilcox v. State, 6 Lea, 571, 40 Am. Rep. 53, it was held a conviction of robbery is a bar to a subsequent indictment, founded on the same transaction, for assault with intent to murder. The court said: “The assault or violence in the robbery case, being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case as a material part thereof, it cannot be again punished, as it would be if the judgment below were allowed to stand.”
In the same case the court further said:
“It was for the assault at the time of the robbery that the conviction was had in this case. Force and violence were proved in each case and were alike essential in both to sustain a conviction. It was one continuous transaction in which defendants perpetrated a robbery, by violence, dangerously wounding the prosecutor. Being one transaction, the prosecutor may carve as large an offense out of it as he can, but it is said ‘he must cut only once.'”
In the case of the United States v. Wilson, 7 Pet. 150, the defendant was indicted for robbing the mail of the United States, and putting the life of the driver in jeopardy; the punishment for which was death. He was found guilty as charged. The President of the United States granted a pardon to Wilson; the pardon being expressly restricted to the sentence of death passed upon
The same principle is announced by that court in In re Snow, 120 U. S. 274, and in Hans Nielsen, Petitioner, 131 U. S. 176. In the case of Cooper v. State, 13 N. J. L. 361, 25 Am. Dec. 490, the prisoner had been indicted, tried and convicted for arson. While still in custody under this proceeding, he was arraigned on an indictment for the murder of two persons who were in the house when it was burned. To this he pleaded the former conviction in bar, and the supreme court of New Jersey held it a good plea. (See also State v. Smith, 43 Vt. 324; State v. Shepard, 7 Conn. 54; Moore v. State, 71 Ala. 307.)
The vice of respondent’s argument is in treating the first information as a charge of assault with intent to murder without regard to the included offense of an assault, and arguing thereon that because evidence showing that the defendant was guilty of the crime of mayhem would not convict him on the charge of an assault with intent to murder, that therefore the offenses were not the same within the meaning of the constitutional provision hereinbefore cited. In People v. Gilmore, 4 Cal. 380, 60 Am. Dec. 620, the court say: “An indictment by operation of law, for murder, is also an indictment for manslaughter, and every less offense that
As the decision reached upon the principal question is conclusive of the case, it is not necessary to consider any of the other points urged by appellant. The judgment and order appealed from should be reversed.
Searls, C., and Vanclief, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and it having been shown to the court that since the submission of the cause the defendant has died, it is ordered that this judgment be entered nunc pro tunc as of May 5,1893.
Paterson, J., Harrison, J., Garoutte, J.
