78 P. 470 | Cal. | 1904
The defendant was charged with assault with a deadly weapon with intent to murder, was tried, convicted of assault with a deadly weapon, and sentenced to imprisonment in the county jail for one year. An appeal is taken from the judgment and from the order denying defendant's motion for a new trial.
The first point made on behalf of the appellant is, that the evidence is insufficient to justify the verdict. The alleged assault was made on one McCartney near the town of Madera, in Madera County, at or near the house of Mrs. Northfield, where the said McCartney was boarding, and McCartney in giving his testimony says: "I was standing at the northwest corner of the porch, and we were talking, and all of a sudden Mr. Wells appeared at the front gate; don't know where he came from. He passed through the gate but never said a word and he came right around and walked right in front of me; he laid his left hand on my right shoulder and at the same time he pulled a gun out of his pocket and throws it right up in my face; just within six or eight inches of my face and he says: `I want my money.' He says: `I have lost thirty-five dollars,' as well as I could understand him, and as he did, I reached with my left hand and jerked his gun down by his side. I said: `I ain't got your money — I don't know anything about it.' The pistol was not more than six or eight inches from my face; it was pointed directly at my face. He says: `Excuse me, I have got the wrong man.' Miss Northfield where she was milking when she seen the gun fly, she jumped up and run around the back way of the house and he quit me and started in the direction that she went, and he turned when he got a little from me — probably a couple of steps, and he says: `Keep your hands down.' I says: `I ain't got nothing but my jack-knife.' When he says: `Keep your hands down' I says `Here is Hutson now.' I says: `Maybe he knows something about your money.' Hutson was just driving up to the gate." It appears also that he then proceeded to make an assault with his pistol upon Hutson. It is contended on behalf of the appellant that the mere act of pointing the weapon at McCartney did not of itself amount to *140
the offense of an assault. The code defines an assault as follows: "An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another." (Pen. Code, sec. 240.) This is substantially the old or common-law definition of an assault. The evidence in this case showed that the pistol, or, as the witness calls it, a gun, was loaded, and, as McCartney testified, was pointed directly at his face, and within a short distance of it when he jerked it down. But it is contended also by appellant that the evidence shows that he had made a mistake in assaulting McCartney instead of Hutson, and therefore there was no intention on his part to make an assault upon McCartney. But where one intends to assault or kill a certain person, and by mistake or inadvertence assaults or kills another in his stead, it is nevertheless a crime, and the intent is transferred from the party who was intended to the other. In People v. Suesser,
It is further contended that it was prejudicial error on the part of the court to permit the witness McCartney to be interrogated with reference to the discharge of the pistol by the defendant after the alleged commission of the assault upon him. But it was material to ascertain whether the pistol was loaded, and it was proper to admit evidence tending to show that fact, for unless it had been loaded it would not have been an assault.(People v. Sylva,
It appears that the arresting officer immediately after the commission of the offense charged, found upon the person of the defendant the revolver in question, and also brass knuckles, and it is contended upon the part of the appellant that the court erred in allowing the officer to give testimony with reference thereto. Though we do not deem this irregularity of such importance as to justify a reversal, still it would have been much better as well as safer in practice not to have allowed the officer to be examined in reference to the brass knuckles or any other articles found upon the defendant at the time of his arrest excepting the pistol in question.
The defendant testified as a witness in his own behalf, and on the subject of his testimony the court gave three instructions, which should perhaps be considered together as a single instruction. They are as follows: —
"22. The defendant has been examined as a witness in his own behalf; this it is his right to be, and the jury will consider his testimony as they would that of any other witness examined before you.
"23. It is proper for the jury, however, to bear in mind the situation of the defendant, the manner in which he may be affected by the verdict, and the very grave interest he must feel in it; and it is proper for the jury to consider whether this position and interest may not affect his credibility or color his testimony.
"24. But it is your duty to consider it fairly and give it such credit and weight as you think it is entitled to receive."
Appellant's counsel objects to the above instruction No. 23 on the ground that it is unfair to the defendant and that it invades the province of the jury. He admits that it is substantially the same as the one approved in People v. Cronin,
One of the defenses was insanity, caused by excessive intoxication, and the court gave the following instruction (No. 9) bearing upon such defense: "As has been said, in criminal cases the guilt of the accused must always be established to a moral certainty and beyond a reasonable doubt, and while the burden of proof is upon the defendant to establish the fact of his insanity at the time of the commission of the alleged act, when that plea is interposed, yet he does not have to make proof of it to a moral certainty and beyond a reasonable doubt, but only to your entire and perfect satisfaction." We do not agree with the criticism of the defendant that the language used in this instruction is equivalent to saying that the defense should be established beyond all reasonable doubt, but the last clause of the instruction should have been omitted. Another instruction (No. 26), also bearing on this subject, reads as follows: "Where insanity is relied upon as a defense, the burden of proof is on the defendant. The proof must be such in amount that if the single issue of the insanity or sanity of the defendant should be submitted to the jury in a civil case, it must find that he was insane. In other words, insanity must be clearly established bysatisfactory proof." This last instruction is almost in the exact language of the one condemned in People v. Wreden,
For the error in giving the instruction in question on the plea of insanity the judgment and order must be reversed and the cause remanded, and it is so ordered.
Shaw, J., Angellotti, J., McFarland, J., Lorigan, J., and Henshaw, J., concurred.