People v. Jefferson

BARNARD, P. J.

The defendant was charged with the crime of assault with a deadly weapon, it being charged that on a certain day she committed such an assault upon the person of one G. Mehegan. A jury found her guilty as charged, and she has appealed from the judgment which followed.

A quarrel occurred between the defendant and her husband about 2 p. m. on February 27, 1953. In response to a radio call several officers arrived and found the defendant standing in the yard of her home, and her husband out in the street. She had a butcher knife in her hand and told one of the officers that he would have to use his gun to get the knife. While she was standing near the doorway of

[220]

her home, and the officers were standing in a semicircle trying “to talk her out of the knife,” she started swinging the knife at the group. One slash of the knife was so close that Officer Mehegan threw his arm up and the knife cut his sleeve. Mehegan put his hand on his gun and defendant’s husband pinioned his arms. Another officer took the husband to the police car, and just then a police sergeant arrived. After being told what had happened the sergeant asked the defendant to give him the knife. The sergeant then told Mehegan to get his night stick from the car and try to knock the knife from the defendant’s hand when he, the sergeant, succeeded in diverting her attention. The sergeant then accused the defendant of not being married and asked to see her marriage license. She immediately offered to show the license, and went into the house to get it, followed by some of the officers. She laid the butcher knife down on a dresser, and the sergeant grabbed it. When the defendant saw this she said: “I have got another knife.” She then took a pocket knife from her purse and began slashing at the other officers. Just then, Mehegan returned with the night stick, and as he entered the room he found the other officers dodging around the furniture in the crowded room, and the defendant slashing at them. Mehegan struck her with the stick and she struck him with the knife, cutting his hand. A struggle then ensued during which the defendant dropped the pocket knife. She was then handcuffed and taken to the station.

Appellant’s sole contention is that it was “substantial error for the trial court to deny appellant’s demand for an election. ” It is argued that where the evidence shows the commission of two offenses, either of which would sustain the charge in the information, and the evidence is not clear as to which of the offenses is relied on for conviction, the defendant may demand that the People make such an election unless the jury is in some other manner informed as to which offense is relied on; that the evidence here showed one such offense with a butcher knife, and another and different offense with a pocket knife; that appellant’s evidence tended to show, as to the assault outside the house, that if she struck Mehegan with the knife at all, she did it in self-defense; that with respect to the second assault within the house, she testified that she did not open the pocket knife; that some of the jurors may have believed that she was guilty of an assault with the butcher knife, while others