People v. Herd

JEFFERSON, J.

Defendant was found guilty of committing an assault with a deadly weapon upon Bertha Lee Herd, in violation of section 245 of the California Penal Code. Probation was denied and he was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

On the morning of June 23, 1962, defendant visited the home of his ex-wife, Bertha Lee Herd. That evening defendant and Mrs. Herd attended a party at a friend’s house. At approximately 2 a.m. the following morning, Mrs. Herd went with defendant to “get some coffee,” after which defendant, refusing Mrs. Herd’s request to be driven to her sister’s house, drove instead to a motel. Prior to their arrival, defendant had said nothing about going to a motel. Upon arriving at the motel, defendant asked Mrs. Herd to spend the night with him there. She refused and left the automobile. Whereupon, defendant grabbed her and with a knife inflicted a cut across the lower part of her abdomen. After being cut, she ran to the motel and asked the manager to call the police. She was taken to a hospital by ambulance and remained there for nine days under treatment for the wound.

[849]

Deputy Sheriff Barlup testified he went to the motel in response to a call stating that someone had been injured. He saw Mrs. Herd lying on the front porch covered with blood “from the waist down. ’ ’ Defendant was standing over her 11 asking her how she was.” They removed Mrs. Herd’s skirt and Deputy Barlup observed she had a large cut across her lower abdomen, directly at her private parts, and from which “some of her intestines or something was protruding.” She told the officer defendant had cut her and that she wanted him to go to jail. Defendant was then placed under arrest and when asked where the knife was located, he pointed out its location approximately 50 feet from where the victim was lying. Defendant admitted to Deputy Barlup, in the presence of Deputy Miklos, that he had cut Mrs. Herd with the knife which the deputy had found (introduced at the trial as an exhibit), but stated that he had not done it intentionally.

Defendant, testifying in his own behalf, stated that since the time Mrs. Herd obtained an interlocutory decree of divorce in 1960, he had visited her and their child frequently, and had lived with her occasionally. On June 23, they went to a friend’s house and had several drinks. When they left, defendant thought they would go back to Mrs. Herd’s apartment, but she said, “Let’s go some place else.” Defendant agreed and they went to a motel. Finding no vacancy, they had coffee and something to eat at a hot dog stand, and then went to another motel, where defendant registered as Mr. and Mrs. Melvin Herd, paid $3.00 and they went to the assigned room. Defendant then took out a knife which he used for “cutting lead and oleum,” and while playing with it, “swinging it... apparently she walked into it.”