Opinion
Rehearing Denied Aug. 4, 1932.
Hearing Granted by Supreme Court Aug. 18, 1932.
Appeals from Superior Court, Los Angeles County; William Frederickson, Judge
Henry Heise and Raymond Robertson were convicted of simple assault, and they appeal.
Reversed.
COUNSEL
John C. Packard and Koenig & Brunton, all of Los Angeles, for appellants.
U.S. Webb, Atty. Gen., and Alberta Belford, Deputy Atty. Gen., for the People.
OPINION
TAPPAAN, Justice pro tem.
The defendants were charged by separate informations with the crime of assault with a deadly weapon; tried upon the charges contained in the informations; and were found guilty in each case of the crime of simple assault. From the orders of the court denying their motions for a new trial, and from the judgment entered against them and assessing a fine in each case, defendants appeal. The cases against the defendants involve the same transaction, and have been consolidated for hearing and determination here.
Appellants were employed by a water company which owned one hundred and sixty acres of land upon Big Rock creek, where it maintained a weir to divert the waters of the creek to ditches on the east and west sides of the creek. Some time before the happenings from which the charges here involved arose, there had been a controversy between the shareholders in the water company as to the amount of water which should be diverted into the respective ditches. One faction had for a long time maintained at the weir a tent and man to secure what it deemed a just division of the waters. An action was filed by the water company, and the man and tent were removed from the property of the water company. The only conflict in the evidence is that as to the alleged assault. On the morning in question, defendant Heise came to inspect the weir, found the complaining witness and another on the weir, and found that they had changed the flow of the water by nailing boards upon one side of the weir and removing boards from the other side. The complaining witness testified that defendant Heise brandished a hand ax, and on leaving said he would "get my man that will get you." Heise returned later with defendant Robertson. Heise stopped some seventy-five or one hundred yards from the weir, and Robertson came on to the weir. He had an ax in his hand. As to what next occurred there is a sharp conflict in the testimony. Robertson contends that the complaining witness sat upon the boards of the weir, and that he used the ax in attempting to remove the boards. The complaining witness’ testimony is to the effect that Robertson hit him with the head of the ax. A scuffle then took place, and complaining witness’ clothing was torn. The language used by the contending parties was of the character ordinarily engendered by situations of this kind. Defendants contend that only the hands were made use of in the removal of the complaining witness from the weir boards, while the complaining witness says that his removal was accelerated by the application of the head of the ax. Whether or not an ax is, or is not, a deadly weapon, depends upon the mode in which it is made use of. People v. Guidice, 73 Cal. 226, 227, 15 P. 44.
The court in the instant case must have found that the ax, if it was used at all, was not here used as a deadly weapon.
Appellants’ specification of error is that, under an information for assault with a deadly weapon alleged to have been committed by the use of excessive force in the evicting of a trespasser, the offense is "battery," and not "simple assault." To sustain appellants’ position, it is obvious that the complaining witness, at the time of the alleged acts, must have been a trespasser, and that undue force must have been employed against him. The court, in finding appellants guilty of simple assault, negatived the use of excessive force. "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Pen. Code. § 240. Either by stipulation of the parties, or as an assertedly assumed fact on the part of the trial judge, it satisfactorily appears that the Mutual Water Company was the owner and in the rightful and legal physical possession, not only of the weir and the water which were the subject of the quarrel between the complaining witnesses on the one side and the defendants on the other, but as well of the real property upon which the weir was located; that defendant Heise was an employee of the Mutual Water Company, and as such, and for and in behalf of said company, was in charge of the weir and the water; and that defendant Robertson was also an employee of the same company, working under the immediate direction of defendant Heise.
The uncontradicted evidence further shows that another corporation, named the Rock Creek Water Company, owned one-third of the capital stock of the Mutual Water Company; but as such stockholder claimed the right of physical distribution to it of 9/24 of the water owned by the Mutual Water Company. For the asserted reason that, instead of receiving 9/24 of such water, it was receiving only that to which it may have been entitled, to wit, 8/24 thereof, it caused its employees, who were the two complaining witnesses, to clandestinely and unlawfully seize, and to take and to hold, physical possession of the weir and to so arrange it that 9/24 of the water would be received by the Rock Creek Water Company. It was while the prosecuting witnesses were in such unlawful physical possession of the said property of the Mutual Water Company that the incidents which are hereinbefore detailed occurred.
At the outset, it is obvious that, generally speaking, the mere fact that the Rock Creek Water Company was a stockholder in the Mutual Water Company gave the former company no right of possession to any part of the property of the latter company. In other words, because the Rock Creek Company was the owner of one-third of the capital stock of the Mutual Water Company, in the absence of some statute, or some regulation of the Mutual Water Company by which a special right was conferred in its stockholders to a division or the possession of its corporate property, a stockholder, as such, would have no right to assume, or to take, or to hold, physical possession of any property of which the corporation was the owner. And, assuming the absence of any statute, rule, or regulation by which such a special right in a stockholder to possession of corporate property was conferred, a stockholder, as such, of a corporation who unlawfully took possession of corporate property, would be a trespasser, just as in such circumstances any nonstockholder would occupy such a position with reference to property belonging to the corporation. But in the instant case, aside from any such principle of law, the fact in itself that in taking possession of the weir and the water the Rock Creek Company did not confine itself to an 8/24 of the water, but actually converted to its own use 9/24 thereof, should be sufficient to brand its act, or the act of its employee, as that of a trespasser.
As a general principle of law, it is clear that the use of force ordinarily would constitute a battery; but it is also well-established law that the owner of property has a legal right to eject trespassers therefrom, using such force in so doing as may be necessary to accomplish such purpose; and the rule holds good as to "one who is lawfully in charge of the premises" for such owner. 5 Cor. Jur. 745, and authorities there cited. In 3 California Jurisprudence, at pages 188 et seq., the rule is thus announced: "The right of the owner of premises to expel trespassers is substantially the same under the code as at common law. At common law the owner of real estate had the right to enter upon his property to expel by force an intruder, and in doing so was entitled to use all the force necessary to secure possession. Having the right of entry and exercising it, he was not subject to an action for tort or damages resulting from his entry or from any force used upon, or physical injury sustained by one in wrongful possession, provided he used no more force than was necessary to dispossess him. * * *" The case of Walker v. Chanslor. 153 Cal. 118, 94 P. 606, 17 L. R. A. (N. S.) 455, 126 Am. St. Rep. 61, is illustrative of the point. In that case it appears that a corporation, known as the Superior Sunset Oil Company, was in possession and occupation of certain land, claiming it as its own under mining locations thereon. Notwithstanding such possession, it was held that the real owners of the property had a right to summarily eject the Superior Sunset Oil Company, together with its employees, and in so doing, if necessary, to resort to the use of firearms.
If in the circumstances of the instant case the defendants would have been justified in the law in actually using as much physical force and violence toward and against the trespassers as was or became necessary to eject them from the property, it is difficult, if possible, to understand how, under such conditions, the defendants could possibly be legally guilty of an assault, which is a lesser crime, and which does not either embrace or contemplate the use of force or violence. To my mind, it is manifest that, in the situation presented by the evidence, prejudicial error was committed by the trial court in adjudging the defendants guilty of assault.
The judgments and orders appealed from are reversed.
We concur: HOUSER, Acting P. J.; YORK, J.