People v. Kimmerle

THOMPSON, J.

The defendant was charged in an information filed by the district attorney with two offenses, the first count alleging the crime of assault by means or force likely to produce great bodily injury, and the second count charging the offense of mayhem. The jury returned a verdict of not guilty of mayhem and found the defendant guilty of the offense first charged. This appeal is prosecuted by defendant from the judgment pronounced upon the verdict and from the order denying his motion for a new trial.

The first count details that the defendant “did wilfully, unlawfully and feloniously and forcibly strike, beat and bruise one Arthur M. Loeb about and upon the eye and head of him, the said Arthur M. Loeb, with the fists and hands of him, the said H. J. Kimmerle, with all the force and violence that he, the said defendant, was then and there able to exercise and which said striking and beating and bruising did then and there cause a fracture of the left cheek bone of the said Arthur M. Loeb, together with other grievous bodily injuries, and which said striking, beating and bruising was by means likely to and did produce great bodily injury to the said Arthur M. Loeb.” Count two charges that the defendant committed the crime of mayhem by putting out the eye of Arthur M. Loeb.

The appellant first assails the judgment upon the ground that the verdict of not guilty of the offense of mayhem was an acquittal of every element of the crime charged in the first count except simple assault and battery. The evidence established the fracture of the left malar bone at or near its juncture with the frontal bone, and that the

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sight of the left eye was so impaired that with its sole use Loeb could faintly discern light, and the physicians advised its removal. There was testimony that in his effort to get out of the office in which the assault was committed Loeb ran into the jamb of the door. From this counsel argue that the jury must have found that the fracture and the injury to the eye were occasioned by collision with the door and not by being forcibly and violently beaten with the fists of appellant. They also add to this by the argument that inasmuch as Loeb was seated at a desk with his right side toward the appellant as appellant approached him from another room, that appellant could not have struck him on the left side of the face (the side on which the fracture occurred). However, there was substantial testimony by nonparticipants in the altercation to the following effect: that Loeb came from what may be called the private office and seated himself at a desk in the outer office, almost immediately followed by the appellant, to whom Loeb was saying, “I don’t know who you are and I won’t take orders from you”; that the appellant then stated to Loeb: “I will show you who I am” and struck him in the face with his fist several times; that he then picked Loeb up and threw him six or seven feet over a railing which divided this outer office; that when Loeb was getting up from where he was thrown blood was streaming from the left side of his face; that Loeb ran out of the door with appellant after him, telling him, “To get the hell out of the building and stay out. ’ ’