People v. Copeland

[187]

DRAPER, J.

A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245). The trial court entertained a doubt as to defendant’s sanity and suspended proceedings pending trial of the sanity issue (Pen. Code, §§ 1368, 1369). A second jury found defendant sane, and judgment committing him to prison was thereafter pronounced (Pen. Code, § 1370). Defendant appeals.

The prosecution’s evidence showed that the weapon used was a “policeman’s club,” about a foot long. Appellant argues that the evidence is insufficient to support the verdict, in that a club of this sort is not an inherently deadly weapon, and did not become so in fact when used by the 65-year-old appellant upon complainant, a delivery man 27 years old. The testimony shows that the left rear side of complainant’s head was struck with sufficient force to cause a cut which required two sutures. Whether the club was a deadly weapon was at most a mixed question of law and fact, to be determined by the jury upon proper instructions

(People

v.

McCoy,

25 Cal.2d 177, 189 [153 P.2d 315];

People

v.

Valliere,

123 Cal. 576 [56 P. 433] ;

People

v.

Petters,

29 Cal. App.2d 48 [84 P.2d 54] ;

People

v.

Raleigh,

128 Cal.App. 105 [16 P.2d 752]). Appellant does not question the instructions upon this point, and, under the cases just cited, the evidence is ample to support the jury’s verdict.

Appellant complains of the testimony of the witness Michel, a pharmacist employed by the same drugstore for which complainant worked. Michel testified that appellant telephoned the store four times in less than two hours after the alleged assault, and made statements about the events of the evening in conflict with each other and with statements made to others. It developed that Michel had made notes of the conversations on the evening they occurred, and had given these notes to the deputy district attorney, who had lost them. The deputy stated that he had made copies of Michel’s notes, and showed them to Michel to refresh his recollection. Appellant objected to this procedure only upon the ground that there was no showing that the witness’ recollection required refreshing, and not on the ground that they were memoranda made by one not the witness, the objection urged here. Thus it could well be argued that the objection, even if otherwise sound, was waived. In any event, we are satisfied that the incident was not prejudicial to appellant. The essence of Michel’s testimony had been given before the use of the memoranda, his testimony dealt with a collateral matter not