People v. Cota

California Court of Appeal Jul 17, 1942 No. Crim. No. 473Published

Before: Barnard

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Holding. The court held that while it was error to instruct the jury on a lesser included offense when the evidence only supported the higher offense, the error was not prejudicial to the defendant because it resulted in a more lenient verdict.

Issues

Whether it was error for the trial court to instruct the jury on simple assault when the evidence only supported a charge of assault with a deadly weapon.
Whether the defendant was prejudiced by an instruction on a lesser included offense when he denied committing the act entirely.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it has frequently been held that such error is not reversible unless it appears that the defendant has been prejudicially affected thereby.”

“it cannot be said that the error was prejudicial or resulted in a miscarriage of justice.”

“the appellant was benefited rather than prejudiced by this instruction which, although it should not have been given, was too favorable to him.”

BARNARD, P. J.

The defendant was charged with the crime of assault with a deadly weapon under section 245 of the Penal Code, it- being alleged that on a certain date he committed such an assault by stabbing and cutting the person of one Jesus Sua. A jury found him guilty of simple assault and he has appealed from the judgment and from an order denying his motion for a new trial.

It is admitted that Sua was badly injured through a knife wound inflicted by someone. The appellant throughout has contended that he is not the person who inflicted the wound and that he was not present when the act was done. It is conceded, as it must be, that the evidence is sufficient to have supported a conviction of the crime as charged. It

[456]

is earnestly contended, however, that there is no evidence of any felonious act other than the stabbing of Sua with a knife; that if the appellant committed that act he was guilty of an assault with a deadly weapon and not of the lesser crime; that the court erred in giving an instruction in which the jury was told that it might find the appellant guilty of simple assault as being an offense included in the offense charged; that this instruction was prejudicial to him; and that since he was either guilty of the offense as charged, or not guilty, he is entitled to a reversal. In this connection the appellant has moved to correct the transcript in order to show that this criticised instruction was given at the request of the People and not of the appellant. It appears from an affidavit of the trial judge that this instruction was requested by the People and that no instructions were requested by the appellant. For present purposes, we will grant the motion and consider the instruction as one given at the request of the People.

It is well established in this state that it is proper to refuse an instruction as to a lesser offense or degree included in the offense charged where the evidence warrants a conviction, if at all, only for the higher offense or degree.

(People

Rogers,

163 Cal. 476 [126 Pac. 143] ;

People v. Cota

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BARNARD, P. J.

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