People v. Stewart

SHINN, P. J.

Angered when his 7-year-old son Larry refused to spell the word “the” at the dinner table, Aubrey Woodrow Stewart slapped the boy three times about the face and head, knocking him to the floor, and either by accident

[90]

or design his boot struck the boy’s back. Examined by a physician later the same evening Larry was found to be emotionally upset, and to have bruises on his left face and jaw, reddened ears, a mild swelling over the left cheek, and a bruised, swollen and abraded area, approximately the size of a silver dollar, on the small of his back.

Stewart was subsequently accused by information of violating section 273d of the Penal Code, in unlawfully making an assault and inflicting a corporal injury upon his son which resulted in a traumatic injury. Trial was to a jury. At the People’s request the court instructed that assault and battery were offenses necessarily included within the one charged in the information. Stewart was found guilty of battery and was sentenced to 120 days in the county jail. He appeals from the judgment.

The sole contention on the appeal is that the court erred in instructing the jury that battery is an offense necessarily included within that of violation of Penal Code, section 273d.

Section 273d reads: “Any husband who wilfully inflicts upon his wife corporal injury resulting in a traumatic condition, and any person who wilfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition, is guilty of a felony. ...” Battery is defined as “any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.)

When one offense cannot be committed without committing another, the latter is an offense necessarily included within the former.

(People

v.

Greer,

30 Cal.2d 589 [184 P.2d 512].) The language of the accusatory pleading governs in determining whether the crime of which the accused stands convicted is an included offense.