People v. Petters

SPENCE, J.

Defendant was charged with an assault with a deadly weapon. On a trial by jury he was found guilty. He made a motion for a new trial and a motion in arrest of judgment. Both motions were denied and defendant was sentenced to serve one year in the county jail. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

There is no controversy concerning the fact that defendant and the complaining witness had a dispute and that defendant picked up a wooden club and hit the complaining witness on the head with such force as to almost sever his ear from his head. Eighteen stitches were taken to repair the injury. There was a conflict in the evidence on other points. The complaining witness claimed that defendant was the aggressor and that defendant also cut him on the hands and breast with a knife. Defendant claimed that the complaining witness was the aggressor and that defendant acted in self-defense. He denied using a Imife.

Appellant first contends that the trial court was “without jurisdiction over the subject of the information” and that the trial court therefore erred in denying his motion in arrest of judgment. He calls our attention to the information which charged that defendant did “wilfully, unlawfully and feloniously, by means of a deadly weapon (to-wit: a wooden club and a knife with open blade), commit an assault in and upon the person of one Albert Hicks, a human being”. His contention is that said information was insufficient to charge an assault with a deadly weapon under section 245 of the Penal Code as the instruments named, to wit: a wooden club and a knife with open blade, are not in

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struments defined as “deadly weapons” in section 1168, subdivision (2) subsection (e) of the Penal Code. He therefore contends that the information charged no more than a simple assault, a misdemeanor under sections 240 and 241 of the Penal Code, and that the superior court had no jurisdiction.

We find no merit in this contention. Prior to 1927 there was no statutory definition for the words “deadly weapon” as used in any section of the Penal Code. That term, however, had been frequently defined in the authorities. In 3 California Jurisprudence, pages 205 and 206, several authorities are cited and it is said, “A deadly weapon is one likely to produce death or great bodily injury. The character of the weapon is ordinarily pronounced by the law. There may, however, be eases in which its character, that is to say, whether deadly or otherwise, depends upon the manner in which it was used, or the part of the body upon which it was used, and therefore it becomes a mixed question of law and fact which the jury must determine under proper instructions.”