People v. Schmidt

MOORE, P. J.

Appellant was accused of two crimes, to wit: count 1, assault upon the person of one Mrs. Jane Bryan by choking her with his hands and by striking and beating her neck and head with his fists, all with such force as was likely to, and did, produce the great bodily injury of that lady (Pen. Code, § 245); count 2, assault upon Mrs. Bryan with intent then and there to commit rape by force and violence (Pen. Code, § 220). The court directed an acquittal on count 2, but under appropriate instructions the jury convicted appellant of the crime of assault by means of force likely to produce great bodily injury. Although his appeal is from the order denying a new trial as well as from the judgment, we find no motion for a new trial to have been made. The solitary issue is whether the evidence is sufficient.

Mrs. Bryan, wife of a soldier stationed at the Air Base three miles south of Santa Maria, was employed in the service club at the Base. She had left the club at 6:30 p.m., December 6, 1943, and was walking toward the main gate of the Base when appellant stopped his automobile and invited her to ride. Although he was a stranger she accepted his offer. He checked out at the gate and proceeded toward Santa Maria. But before reaching the main highway he parked in an isolated spot on a side road, darkened his car, and there requested the girl to “have a little fun.” As she attempted to alight he grabbed her and choked her with both hands until she could yell no more. On her refusal to “give in” he began beating her head and ear with his fists. Her head was so sore that she could “hardly lie on it” and her neck was sore for a long time. The medical testimony showed that there was an abraded wound above her right ear, inflicted with a fist, two long, transverse red marks and three pronounced scratches on the right side of her neck and one scratch in the center of her neck, done with fingernails. Pressure was necessarily applied to create the marks on her neck. The scratches were evident for about two weeks and the abrasions for about eight days.

Whether the force applied to an assaulted person is likely to produce great bodily injury is a question to be determined by the triers of facts.

(People

v.

Nudo,

38 Cal.App.2d 381, 384 [101 P.2d 162].) When the jury has had an opportunity to observe witnesses testify they may, from the nature

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