People v. Alderson

PLUMMER, J.

The defendant was convicted of the offense of simple assault, upon an information charging an assault by means and force likely to produce great bodily injury. Judgment was entered upon the verdict, fining the defendant in the sum of $125 with an alternative in the county jail. From this judgment and the order denying-his motion for a new trial, the defendant appeals.

The record shows that the defendant might very properly have been found guilty of the highest offense charged in the information, as the assault consisted of striking the complaining witness with a stretcher-bar, consisting of a

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piece of wood about 2x4x4 feet in length. Prom the force t>f the blow the complaining witness suffered two broken ribs.

The appeal is based upon alleged errors of the court in instructing the jury. The instructions assailed are as follows: “The court instructs you that under the information in this case you may, if the evidence justifies it, find 'the .defendant guilty of either,—1: an assault by means and force likely to produce great bodily injury; or,—2: simple assault.” And further: “The court further instructs the jury that an assault is an unlawful attempt, coupled with the present ability to commit a violent injury upon the person of another.” The contention being made that under the evidence the defendant should have been found guilty either of the highest offense charged in the information or not guilty. Section 1159 of the Penal Code reads: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which, he is charged, or of an attempt to commit the offense.”

While unnecessary to cite any authorities to show that the crime of assault is necessarily included in the charge contained in the information in this case, we may refer to the numerous cases cited in the annotations to section 1159 found in Kerr’s Cyc. Codes.

As appears by the brief filed by the appellant in this case, many courts have held that while a jury may, without reversible error, find a defendant guilty of a lesser crime included in the charge, such, for instance, as manslaughter, where a defendant is charged with murder, and the evidence shows either that the defendant should be found guilty of murder or not guilty, yet if the court instructs the jury, under such circumstances, that a verdict of manslaughter may be returned, it is erroneous and ..the judgment will be reversed. Nevertheless, this question has been definitely decided in this state, contrary to the contentions of the appellant that reversal should here follow in line with the cases reaching such a conclusion.