People v. Cradlebaugh

LENNON, P. J.

The defendant was charged, in an information filed in the superior court of the county of Contra Costa, with the offense defined by section 149 of the Penal Code, which reads as follows: “Every public officer who, under color of authority, without lawful necessity, assaults or

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beats any person, is punishable by a fine not exceeding $5,000, and imprisonment in the county jail not exceeding five years.” The defendant was convicted, and sentenced to pay a fine of $1,000, and to be imprisoned in the county jail for one year. The appeal is from the judgment and from an order denying defendant’s motion for a new trial.

The information charged “That on the 19th day of September, A. D. 1913, the . . . defendant, B. B. Cradlebaugh, alias. B. B. Henry, was a public officer, to wit, a duly appointed, qualified and acting deputy sheriff in and for the county of Tuba, state of California, under George H. Voss, who was then and there the duly elected, qualified and acting sheriff of said county; that on the said 19th day of September, 1913, and while the said defendant was acting as such deputy county sheriff, at the county of Contra Costa ... he, the defendant, did then and there unlawfully and willfully and violently, and under color of authority assail, strike and beat, without lawful necessity and without any just cause or provocation, one Alfred Nelson, while he, the said defendant, had then and there the said Alfred Nelson under arrest and in his custody and control by virtue of a warrant of arrest, and by virtue of his office as such deputy sheriff. ’ ’

The insufficiency of the evidence to sustain the verdict, and the refusal of the trial court to give certain requested instructions, are the only points urged for a reversal.

It is conceded that the evidence sufficiently shows the commission of the assault; but it is claimed that the evidence is insufficient in the particular that it does not show that the defendant was at the time of the assault a duly appointed deputy sheriff of the county of Tuba. Upon this phase of the case the evidence in substance is that on the eighth day of September, 1913, George H. Voss, sheriff of the county of Tuba, in writing appointed the defendant a deputy sheriff of said county; that thereupon the defendant, before Edward B. Stanwood, the district attorney of said county, swore and subscribed to the oath of office as such deputy sheriff, which oath, in the usual and ordinary form, was indorsed upon the sheriff’s written appointment. It was not shown, or attempted to be shown, that such appointment had ever been filed with the clerk of Tuba County. To the contrary, the