People v. White

California Court of Appeal Jan 29, 1963 No. Crim. 4167Published

Before: Draper

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Holding. The court held that a rock used in an assault can be classified as a deadly weapon based on its nature, manner of use, and the resulting injury, and that the prosecutor's comments on witness credibility did not constitute prejudicial misconduct.

Issues

Whether a rock used in an assault constitutes a deadly weapon as a matter of law.
Whether the prosecutor committed prejudicial misconduct by commenting on the credibility of a witness.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule is that an instrument not inherently a deadly weapon may become so by reason of its use.”

“Whether it was a deadly weapon was at most a mixed question of law and fact to be determined by the jury upon proper instructions”

“His assertions of Mrs. White’s truthfulness were but legitimate argument of conclusions which the jury could reasonably draw from all the evidence.”

[465]

DRAPER, P. J.

Charged with assault with a deadly weapon with intent to commit murder (Pen. Code, § 217), defendant was tried to a jury and found guilty of the lesser included offense of assault with a deadly weapon (Pen. Code, § 245). He appeals from the judgment.

The asserted assault was upon defendant’s wife. She testified that he pulled her into the bathroom and struck her on the head with a 11 great big rock.” The rock was not produced. She did not testify to its dimensions, but the transcript makes clear that she did, on at least one occasion, describe its size to the jury by gestures. A doctor testified that the laceration of her scalp was 2 inches long, “through all layers of the scalp . . . to the bone,” that fragments of hair were driven into the wound, and that suturing was required. Defendant denied being present when his wife was injured, and advanced the theory that her wound resulted from a fall in the bathroom.

The jury obviously accepted the contention of the prosecution. Defendant cannot attack the sufficiency of the evidence in this respect. He does, however, argue that the evidence establishes as a matter of law that the rock was not a deadly weapon, and that thus the utmost offense proven was a simple assault. The rule is that an instrument not inherently a deadly weapon may become so by reason of its use. In determining this question, the jury may look to the nature of the instrument, the manner of its use, and the injury inflicted

(People

Russell,

59 Cal.App.2d 660, 665 [139 P.2d 661]). Although the rock was not produced, it was adequately described to the jury, and the injury it inflicted was demonstrated in detail. Whether it was a deadly weapon was at most a mixed question of law and fact to be determined by the jury upon proper instructions

(People

Copeland,

157 Cal.App.2d 185 [320 P.2d 531], and cases there cited). Here the instructions are unquestioned. The facts amply support the jury’s implied finding. The decision principally relied on by defendant (P

People v. White

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DRAPER, P. J.

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