Opinion
Hearing Granted April 13, 1944.
Rehearing Denied March 27, 1944.
Appeal from Superior Court, Los Angeles County; Thomas L. Ambrose, Judge.
Samuel McCoy was convicted of assault with a deadly weapon, and from the judgment and an order denying his motion for a new trial, he appeals.
Judgment and order reversed and cause remanded for a new trial. COUNSEL
Albert G. Bergman, of Los Angeles, for appellant.
Robert W. Kenny, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.
OPINION
DORAN, Justice.
Defendant was charged by information with assault to commit rape in count I and in count II with assault with a deadly weapon. The jury returned a verdict of guilty as to count II and not guilty as to count I. Defendant appeals from the judgment and from the order denying a motion for a new trial.
The alleged offense occurred about 11:45 P.M. The victim, on direct examination, described the assault as follows:
"* * * when I started out I was walking down the street alone, and then I noticed suddenly someone came toward me walking on the same sidewalk as I was, only I was walking south and this man was walking north. * * * I just kept on walking anyway, but when this man came abreast of me, instead of going on his way he came towards me, and he didn’t say anything, but he just held a knife towards me, and I backed away, but he still came towards me and knocked me down on the sidewalk.
"Q. What did he knock you down with? A. Just the weight of his body by walking into me, and when I was down on the sidewalk he was over, he was standing over me with the knife held suspended above my face; I started to scream and he put his hand over my mouth and he said: ‘Don’t make any noise or I will use this knife.’
"Q. He said what? A. I don’t remember the exact words, but it was something like ‘Be quiet or I will use this knife.’
"Q. Go ahead. A. And then I worked my way free enough and I screamed again and I called for help and I didn’t hear anyone coming, so I worked myself free again, and at this time he was more or less standing a bit to the right of me while I was lying down, and while he was standing, I drew my foot up and I kicked him, I kicked him in the groin, and he just straightened up for a minute and then he ran away, * * *".
And on cross-examination as follows:
"Q. All right. Now, Miss Hoffman, when this man came towards you you testified that he bumped into you, is that correct? A. He came over toward me and he rather walked into me so that he pushed me down on the sidewalk.
"Q. Well, now, when the--call it the collision, if you will, when the contact took place between you and this man, did he use his hands to push you down, did he use his body or any part of his body in so doing? A. He used his body.
"Q. You remember that definitely? A. No, as he first came toward me I backed away and he continued to come toward me, and the next thing I knew I was down on the ground and he was over me, and it seems that he must have used his body to push me down--all I know, I didn’t fall down all by myself. * * *
"Q. By Mr. Bergman: Now, Miss Hoffman, the fact of the matter is this, is it not: that this man, whoever he was, never, at any time, touched any part of your body, isn’t that true? A. No, it is not true, because I am positive he touched my mouth, and I also had some scratches on my hands.
"Q. All right. Now, we will take your statement that he touched your mouth. Did he touch any other part of your body? A. Not so that his hand lingered or stayed there, but at some time or another in the struggle we were in contact with each other.
"Q. Isn’t it a fact, Miss Hoffman, that this man remained standing at all times during the period of time that you were on the sidewalk? A. Yes, but he was bend over me.
"Q. And he never at any time placed any portion of his body near your body, at any time that you were on the sidewalk, isn’t that true? A. That is true.
"Q. And while he was standing there--that is, we will take this transaction and try to reconstruct it accurately--this man bumped into you and knocked you down, and according to your statement he stood there and held this knife, isn’t that true? A. That is true.
"Q. And while you were on the ground you kicked him and he ran away? A. That is true.
"Q. And on your direct examination you said it was a matter of some seconds, isn’t that true? A. It was either seconds or a few minutes. All I know is time went very fast."
Defendant assigns as error the refusal of the trial court to give certain requested instructions and disputes the sufficiency of the evidence to support the verdict.
With regard to the subject of instructions, it is appellant’s contention that the court’s refusal to instruct the jury pursuant to the provisions of section 1159 of the Penal Code was error. It is argued by appellant that, "It is also axiomatic that the jury is the sole judge of all questions of fact; that the jury in arriving at a verdict in this case had the unquestioned right to either convict or acquit the defendant of the crime of assault with a deadly weapon, or if the jury was convinced beyond a reasonable doubt that the defendant had made an assault upon the complaining witness, but were not convinced beyond a reasonable doubt that a deadly weapon had been used by the defendant in the perpetration of the crime, they nevertheless had the right to convict the defendant of the crime of simple assault. * * * The trial judge in refusing to give the foregoing instruction to the jury, in effect, legally and in actuality, took away from the jury, and as such judge, decided a question of fact, i. e., that if any crime was committed at all, it was the crime of assault with a deadly weapon, or nothing at all." (Emphasis included.)
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 is at once evident that this provision of the law is concerned fundamentally with the power of the jury in criminal cases where the major offense charged includes elements that separately are defined as offenses elsewhere in the law. It is concerned only with procedure and not with the rights of the defendant. Obviously, its purpose is to expedite and facilitate the administration of justice in the interest of economy. It confers power on the jury and indirectly imposes a duty on the court as a result of which the jury in certain cases may find a defendant guilty of a minor offense when the evidence, as a matter of law, is insufficient to support a verdict of guilty of the major offense. In no sense is this provision designed to afford the jury the power to pick and choose at will from a series of included relatively minor offenses.
The question as to whether the evidence presents a proper case for the exercise of such power by the jury is one of law. Manifestly, in doubtful cases the jury is, or should be instructed accordingly, but the failure of the court to perform its duty in this regard, whether as a result of error of judgment or for any other reason, is not a matter about which the defendant may be heard to complain. Nor does the language of section 1159 of the Penal Code purport to afford the defendant in a criminal action a method and means of escape from the just consequences of a criminal act by affording an opportunity for the conviction of a minor offense when the evidence, as a matter of law, clearly supports a judgment of conviction of the offense charged.
Nor may a defendant in a criminal action be heard to advocate the rights of the jury in such circumstances, nor indeed, in any circumstances. The law vests juries with certain powers and imposes certain duties, but a jury, as such, has no rights. To refer to such powers and duties as rights is a confusion of terms; and it is by such means that errors frequently have their beginning, and by later reference are perpetuated. For example, in People v. De La Roi, 23 Cal.2d 692, 146 P.2d 225, 229, appears the following:
"It Was Error to Instruct the Jury Contrary to the Provisions of Section 1138 of the Penal Code, but It Appears that No Prejudice Therefrom Was Suffered by Defendant. Defendant’s fourth contention--the only one which has semblance of merit--is based on the last paragraph of the charge of the court. In closing his instructions to the jury the trial judge stated, ‘I wish to say that from this time on, you will receive no visitors from any source whatever; neither will you send out any communications nor will any be sent to your room. You have now all that is to be said in this case, by the respective parties and by the Court. The case now remains with you.’ (Italics supplied.) Section 1138 of the Penal Code provides that ‘After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the district attorney, and the defendant or his counsel, or after they have been called.’
"Obviously it was improper to admonish the jury, ‘neither will you send out any communications. * * * You have now all that is to be said in this case, by the respective parties and by the Court.’ The jury had the right to send out a communication to the court at any time it saw fit and it had the right to have testimony read or further instructions given. But the fact that it had these rights does not show that it had any occasion, in this case, to use them; nor, even if we assume that it may have wished to exercise such rights and felt precluded therefrom, does prejudice to the defendant appear possible." (Italics included.)
In the instruction referred to and considered in the above mentioned case, there is nothing that conflicts with section 1138 of the Penal Code. Said section imposes a certain duty on the jury when the circumstances, therein referred to, arise. And only two incidents are mentioned. Neither directly nor by inference did the language of section 1138 give the jury the "right to send out a communication to the court at any time it saw fit". Indeed the provisions of section 1138 of the Penal Code clearly are designed to prevent such practices. In the circumstances mentioned, the jury "must require the officer to conduct them into court." There can be no confusion between such an unqualified mandate and what is recognized under the law as a right. And the obvious purpose to prevent secret communications to the court is but a part of the general scheme of procedure that guarantees a fair trial in open court.
With regard to the effect of and the appropriate application of section 1159, the decisions are not in harmony. In People v. McNutt, 93 Cal. 658, 29 P. 243, defendant was charged with assault with a deadly weapon with intent to commit murder and adjudged guilty of assault with a deadly weapon. Failure of the court to instruct the jury that, "under the information they could convict him of a simple assault", was assigned as error. The court held that, "The facts disclosed by the record would seem to justify a refusal by the court to give an instruction as to simple assault, even if it had been requested by the defendant. People v. Madden, 76 Cal. 521, 18 P. 402; People v. Scott, [[[[ 91] Cal. [563], 27 P. [930], 931. These decisions of the court are not in conflict with section 1159 of the Penal Code; for that section contemplates the conviction of a defendant for the lesser offense, when the evidence is insufficient to justify a conviction for the greater offense charged." 93 Cal. at page 659, 29 P. at page 243. And in People v. Albori, 97 Cal.App. 537, 275 P. 1017, the court declared, "There are numerous authorities to the effect that, where the evidence is such as to make it clear that if the defendant is guilty at all, he is guilty of the offense charged, and not of any included offense, that it is proper to refuse to instruct the jury that they may convict of an included crime", (97 Cal.App. at page 540, 275 P. at page 1019), citing authorities.
But a tendency to the contrary appears in the following cases. In People v. Demasters, 105 Cal. 669, 39 P. 35, the court held that an instruction authorized by section 1159 of the Penal Code should have been given, although the judgment was reversed on other grounds. In People v. Mock Ming Fat, 82 Cal.App. 618, 256 P. 270, in an action where defendant was found guilty of assault with intent to commit murder, the court, with regard to section 1159 of the Penal Code, declared that, "Under such circumstances the jury had no opportunity to bring in a verdict of assault with a deadly weapon, as it might have done had the case been submitted under proper instructions. People v. Maciel, 71 Cal.App. 213, 234 P. 877." 82 Cal.App. at page 621, 256 P. at page 271. In People v. Foss, 85 Cal.App. 269, 259 P. 123, defendant was convicted of robbery. The court held that the failure to instruct on simple assault was prejudicial error, asserting that, "In view of the lack of evidence justifying the verdict of robbery, we must hold that this error was prejudicial and resulted in a miscarriage of justice." 85 Cal.App. at page 272, 259 P. at page 124. And in People v. Cicerelli, 123 Cal.App. 48, 10 P.2d 792, defendant was convicted of the crime of assault to commit rape. With regard to the provision of section 1159 of the Penal Code, appears the following (123 Cal.App. at page 49, 10 P.2d at page 792):
"However, the evidence was such that the jury might well have found the appellant guilty of simple assault, and he requested the trial court to instruct the jury to that effect. The proposed instruction was refused, and this is assigned as error. The law applicable to the point is found in section 1159 [of the] Penal Code; People v. Demasters, 105 Cal. 669, 673, 39 P. 35; People v. Mock Ming Fat, 82 Cal.App. 618, 620, 256 P. 270; People v. Foss, 85 Cal.App. 269, 272, 259 P. 123.
"The state’s answer that the proposed instruction was not proper because appellant could have been convicted of the assault charged and no other is not supported by the evidence. This disclosed that the parties were engaged in a brawl induced by the use of too much liquor. The jury could have found appellant guilty of simple assault because of the admitted striking of the girl, and, if it had accepted appellant’s testimony that he had no intention of having sexual intercourse, a verdict of simple assault would have been the proper verdict to return."
Finally, as another example of the decisions on the subject, in People v. Washburn, 54 Cal.App. 124, 201 P. 335, defendant was found guilty of assault when, as the court pointed out, the evidence clearly demonstrated the offense of assault with a deadly weapon. Appellant complained in this case because the instruction on simple assault was given when, it was contended, the evidence established assault with a deadly weapon or nothing. However, the judgment was affirmed for the reasons and on the authorities therein given.
Logical reasoning would appear to support an interpretation of section 1159 of the Penal Code to the effect that an alleged prejudicial error may not be predicated on the failure of the court to give an instruction allowing the conviction of a minor offense necessarily included in the offense charged. Either a verdict, as a matter of law, is supported by the evidence, or it is not. If it is, then no prejudice exists. If it is not, then the prejudice results from the insufficiency of the evidence and not from the failure of the court to follow the procedure authorized by section 1159 of the Penal Code. For, in any event, the prejudice resulting from the insufficiency of the evidence to support the verdict would not be removed by an instruction as to the provisions of section 1159. Such an instruction could not serve to supply the deficiency in the evidence. For the purpose of determining the question as to the sufficiency of the evidence to support the verdict, it is immaterial whether the court has instructed the jury in accordance with the provisions of section 1159 of the Penal Code. Appellant’s contention in this connection therefore cannot be upheld.
Appellant’s contention, however, that the evidence is insufficient to support the verdict, as a matter of law, exemplifies the proper remedy in the circumstances. Assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Penal Code, section 240. By reason of the punishment, it is a misdemeanor. But when such assault is accompanied by the use of a deadly weapon or instrument or by any means of force likely to produce great bodily injury, such assault, by reason of a different punishment, is a felony. Section 245, Penal Code. A deadly weapon is not defined in the law for the purpose of these provisions. But the decisions are uniform on the subject and in substance agree that whether a weapon used in an assault amounts to a deadly weapon within the meaning of section 245, supra, primarily is a mixed question of law and fact; that, in certain cases, under proper instructions it is a question for the jury; that for the purpose of determining such question not only the character of the weapon should be taken into account but equally important, among other facts, is the manner of its use, the location of the injury and the extent of the injury, if any. The following decisions uphold the foregoing rule in one or more of its phases: People v. Leyba, 74 Cal. 407, 16 P. 200; People v. Dodel, 77 Cal. 293, 19 P. 484; People v. Fuqua, 58 Cal. 245; People v. Valliere, 123 Cal. 576, 56 P. 433; People v. Stevens, 15 Cal.App. 294, 114 P. 800; People v. Cook, 15 Cal.2d 507, 102 P.2d 752; People v. Lee, 23 Cal.App.2d 168, 72 P.2d 572; and People v. Russell, 59 Cal.App.2d 660, 139 P.2d 661.
To constitute an assault, manifestly, there must be some semblance, although slight, of a physical attempt. That evidence of words used by one exhibiting a weapon or instrument is important, there can be no question. Such words may be the test as to whether the act is lawful or unlawful. But conversation, although it may reveal intent, can be no part of a physical attempt. It should be noted, however, with regard to what constitutes an attempt, that firearms, as distinguished from other weapons or instruments, generally, and, as a matter of law, are regarded as intrinsically deadly. Hence, what may be decisive as to whether any other weapon or instrument is a deadly weapon, could be unimportant where a firearm is involved.
With regard to the evidence relied on to sustain the verdict in the within action, People v. Dodel, supra, is particularly applicable. The defendant was charged with assault with a deadly weapon. Quoting from the opinion (77 Cal. at page 294, 19 P. at page 484): "* * * the testimony fails to show directly that defendant made any attempt to strike with or use his knife.
"Counsel for defendant presented 12 instructions, and asked that they be given to the jury, but the court refused them all. Two of these instructions read as follows:
" ‘To constitute an assault, the defendant must have the intent to strike, the ability to do so, and must have made the attempt to strike.’
" ‘And where, as in this case, the assault is charged to have been committed with a deadly weapon, there must have been an attempt to strike with or to use the deadly weapon.’
"These instructions stated obviously correct rules of law, and the charge of the court, given at its own instance, did not embrace them in substance or effect. In our opinion, they should have been given, and the court clearly erred in refusing to give them."
In the within action, from a consideration of the evidence quoted above describing the assault, it affirmatively appears that no attempt was made to strike the victim with the alleged deadly weapon. At most, it was exhibited in connection with a qualified threat. Taking into account, therefore, the character of the instrument, the manner of its use and the location and extent of the injury suffered, if any, which, as heretofore noted, is the approved test for determining the question, it is apparent that the evidence relied on to support the verdict herein clearly is insufficient as a matter of law. The offense of assault with a deadly weapon was not proved.
For the foregoing reasons the judgment, and the order denying the motion for a new trial, are, and each of them is, reversed, and the cause is remanded for a new trial.
YORK, P. J., and WHITE, J., concur.
Rehearing denied; YORK, P. J., dissenting.