The defendant was convicted after trial by jury in the county of Stanislaus, of the crime of assault by means of force likely to produce great bodily injury, a felony. He objected to the court оf its own motion referring the matter to the probation officer, and was sentenced to one year in the county jail. This is an appeal from the judgment of conviction and from the order dеnying a new trial.
The information by which defendant was charged is as follows:
“Information for assault by means of force likely to produce great bodily injury, a felony. Louis Nudo is accused by the District Attornеy for the said County of Stanislaus, State of California, by this information, of the crime of assault by means of force likely to produce great bodily injury, *383 a felony, committed as follows: The said Louis Nudo, оn or about the 25th day of January, A. D., nineteen hmidred and thirty-nine, at and in said County of Stanislaus, State of California, and prior to the filing of this information, assaulted Bill Koch by striking him and gouging his eye with a hard object and by bеating him and breaking his ribs.”
Considering the evidence in the light most favorable to the People, we find the essential facts of the case to be as follows : William Koch, the party who was very severеly beaten by the defendant, was an old man, 77 years of age. He was, and had been, for six' years, a night watchman at the Riverbank Cannery, in Stanislaus County. The defendant, a comparatively young man, hаd for many years held a similar job, but had been discharged by the cannery for illegally selling certain materials which, it was claimed, he had stolen from the cannery. The defendant claimed that this was a frame-up, and allegedly believed that Koch was one of the instigators thereof. Apparently, the defendant had been trying to find out more about this alleged frame-up, but Koch would not talk аbout it, and defendant wanted to be informed by Koch as to the identity of the others involved, so that he could “get even”. Some time thereafter, defendant was riding in an automobile along the highway, аnd he saw Koch walking up a slope toward the car. Defendant stopped his ear and he and a companion alighted. Koch did not see them alight, and he approached thе car and asked if there was any trouble. He then started to walk away, when someone struck him with a blackjack and knocked him down. He saw defendant take the blackjack and heard him say, “I got you, you-, and I am going to kill you. ’ ’ Defendant then struck Koch again in the eye, and he was rendered unconscious. In his fall he struck a guard-rail and broke several ribs. Koch bled profusely from his wound, and was taken to the hospital, where he remained nine days. Defendant testified that he had owned a blackjack, but that he had burned it two months prior to the assault. He also testified that he did not use a blаckjack, but hit Koch with his fists.
It is contended that there is no evidence to justify a finding to the effect that a blackjack or other hard object was used. A reference to a resume of the testimony given аbove is a sufficient answer. The point raised involves nothing more than a conflict in the evidence, and we are satisfied *384 that the record supports a finding that the assault was committed by meаns of a blackjack.
It is contended that the court should have instructed the jury—3 . Upon the question as to what force would be likely to produce great bodily injury; and—2. That, under the evidence, defendant could have been found guilty of simple assault. No instruction was offered by defendant upon either question. As to the first point, while it is the rule that it is the duty of the trial court, in a criminal case, to give,
sua sponte,
instructions on the general principles of law pertaining to the case
(People
v.
Peck,
After the jury had deliberated for some time, they returned into court and asked for further instructiоns. A prolonged colloquy between the court and a member of the jury, and between court and both counsel followed. At the suggestion of the court, two notes were written out by a juror and handеd to the trial judge. The contents of such notes were not disclosed. No request was made by counsel for defendant that such notes be exhibited to her. The court, at *385 the request of the People, then gave the following instruction:
“You are instructed that it is not essential that the People prove that the assault, if any, was committed by the exact means charged in the information. It is sufficient if it is proved beyond a reasonable doubt and to a moral certainty that Louis Nudo assaulted Bill Koch by means of force likely to produce great bodily injury, providing you are convincеd that such assault, if any, was not committed in self-defense. ’ ’
No further instructions were offered by defendant. The instruction quoted was objected to by defendant as an incorrect statement of the law. He contends that the trial court should have specified the exact means by which the bodily injury was inflicted. The information charged that the assault was committed with a “hard object”. The statute under which the charge was brought reads as follows:
“Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the State prison not exceeding ten years, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars, оr by both such fine and imprisonment.” (Pen. Code, sec. 245.)
Under the evidence the jury could have found that the assault was committed by means of a blackjack or by means of defendant’s fist. The former admittеdly comes within the designation of a “hard object”. Likewise, upon an occasion of this character, a fist can reasonably be so described. This is obvious from the nature of the injury inflicted. Whаt force is likely to produce great bodily injury is a question of fact to be determined by the jury.
(People
v.
Fuqua,
“The pleading here, by way of describing the means employed and the force used and where the force was directed, alleges that the assault was made with the fists and hands upon the head and face and that the result was a fractured jaw and other grievous injuries. Such allegations under the circumstances of this case describe both the means employed and the force used which we think meet the language of the statute—‘by any means or force likely to produce greаt bodily injury’, and are ‘not the details of probative matter or par *386 ticulars of evidence by which these material elements are to be established’. (Pomeroy’s Code Remedies, 4th ed., p. 555.) ”
An almost identical instruction was approved in
People
v.
Blake,
As to the manner in which thе jury communicated with the trial judge, while we do not approve of the practice, we cannot see how any prejudice resulted from the procedure. No request was made by аppellant for an inspection of the notes. Doubtless the judge acted out of an abundance of caution, with a view of keeping the observations of a particular juror from thе other members of the jury.
From appellant’s own lips, the record shows a vicious and unjustified assault made upon a man 77 years of age. To consume pages in discussing the question of whether appellant used a blackjack or his fists would seem a waste of words. In any event, in the language of the section of the Penal Code quoted above, the assault was committed “by means of force likely to produce great bodily injury”.
The judgment and order are affirmed.
Pullen, P. J., and Thompson, J., concurred.