People v. Kersey

MOORE, P. J.

Having been convicted of assault with a deadly weapon (Pen. Code, § 245), appellant demands a reversal on the grounds of (1) insufficiency of the evidence to sustain the judgment, (2) prejudice suffered by reason of insulting questions propounded by the prosecuting attorney.

The genesis of the crime lay in the innocent act of one Hardy who had purchased at a snack shop two cups of coffee for himself and one James Polk and laid one dollar on the counter. While they were enjoying their réfreshment, Hardy was called away to speak with Mr. Vernon who sat nearby in his automobile. Appellant, the waitress, placed the 80 cents change on the counter and it soon found its way into the pocket of the same Polk. After he consumed his coffee, he advanced to the corner in front of the snack shop where he engaged in conversation with a group of men. At the same time Hardy returned with his coffee and asked for his 80 cents. When told that she had given the change to his friend, Hardy requested her to retrieve the money. She approached Mr. Polk and made demand. When he refused to pay, she stabbed him with a knife in the abdomen. He had never conversed with her before and he had not argued with her at any time. For more than a year he had lived in the hotel above the snack shop.

She contends that when she demanded Hardy’s 80 cents, Polk refused; that when she threatened to call the police, Polk slapped her; that as she fell, he came toward her with his hand in his pocket; that she was frightened and cut him. But her story was rejected by the court. .

[366]

She now contends that the knife she used was not a deadly weapon in that it was too small and the cut was not severe. It is true that it was a mere pocket knife and that she exhibited it to no one. She said that she later threw it away. In the absence of proof of its length, its dangerous qualities must be inferred by its effective cutting features in the hand of defendant at the time in question. Although it is not inherently dangerous as a matter of law, if the evidence proves that it so opened a man’s abdomen as to require hospitalization and an operation, it became a question of fact as to whether it was a dangerous instrument. When a jury has so decided under proper instructions, then its implied finding is final.