People v. Henderson

DRAPER, J.

Defendant was tried upon an information charging assault with a deadly weapon in violation of Penal Code, section 245. A jury found him guilty. He was sentenced to one year in county jail, execution of the sentence was suspended and he was admitted to probation for three years upon condition he serve six months in county jail. The People appeal from the orders granting probation and suspending execution of sentence. Defendant filed a cross-appeal, but concedes that he has abandoned it by limiting his brief to reply to the People’s assignments of error.

“ Probation shall not be granted ... to a defendant who used ... a deadly weapon upon a human being in connection with the perpetration of the crime of which he was convicted ...” (Pen. Code, §1203).

Self-defense was the only ground of defense urged. Defendant testified “I . . . got a knife and cut him.” Thus there can be no question that defendant “used” the knife upon complainant. He argues, however, that the knife was not a deadly weapon. The verdict of guilty necessarily is a finding that the knife was a deadly weapon, since it was the only weapon used by defendant and under the statute and the instructions it must have been found to be deadly to support the charge here made (see

In re Sheffield,

18 Cal.App. 2d 177 [63 P.2d 829]).

Defendant cites

People

v.

Southack,

39 Cal.2d 578 [248 P.2d 12] and

People

v.

Johnson,

140 Cal.App.2d 613 [295 P.2d 493]. Those decisions are clearly distinguishable from the case at

bar. In

each of the cited cases, defendant was found guilty of manslaughter. In each, the fatal wound was inflicted by a deadly weapon, but in each there was a question whether the weapon was “used” by defendant. Southack testified that the “hair-trigger” gun he held was discharged when he was jostled by another. The Supreme Court pointed out that “under the evidence and the instructions, the defendant could have been convicted of involuntary manslaughter,” since it “could be inferred that defendant . . . ‘did not use the gun,’ but merely held it without due caution.”