People v. Norton

McCOMB, J.

From a judgment of guilty of assault with a deadly weapon after trial by jury defendant appeals. There is also an appeal from an order denying his motion for a new trial.

The evidence being viewed most favorably to the people (respondent), the essential facts are:

December 13, 1940, about 6:00 o ’clock in the evening, Dr. Hugh Curtis, an optometrist, had just closed his office when defendant knocked at the door and was admitted. He discussed with the doctor the question of examining his eyes and when the doctor turned to look for an appointment book, defendant struck him on the head with a rubber hose containing a nut or bolt. He beat the doctor over the head twenty-five or thirty times until the doctor succeeded in locking him in an adjoining office and the police arrived and arrested defendant.

Defendant relies for reversal of the judgment on the following propositions:

First: The trial court committed prejudicial error in instructing the jury.

Second: The trial court erred in denying defendant’s motion for a new trial, for the reason that defendant’s counsel was not permitted to present oral argument.

As to defendant’s first proposition, he concedes the sufficiency of the evidence to sustain the conviction. We have examined the record and find that there is substantial evidence above outlined to sustain each and every finding of fact upon which the judgment of guilty was necessarily predicated, and also that defendant virtually admitted the commission of the crime of which he was charged, by failing when accused thereof to deny his guilt. Therefore, since the law is settled that a judgment will not be set aside in any case upon the ground of misdirection of the jury, unless there has been a miscarriage of justice (art. VI, sec. 4½, Const. of

Cal.; People

[791]

v.

Epstein,

21 Cal. App. (2d) 488, 490 [69 Pac. (2d) 454]), we may concede without deciding that some of the instructions of the trial court upon a hyperteehnical consideration may be erroneous; still defendant may not urge them as error in this court, in view of the fact that there is substantial evidence to sustain his conviction on the charge of which he was found guilty, and no prejudice or miscarriage of justice resulted to him from such alleged errors.