People v. Brown

SHAW, J.

Defendant by an indictment was charged with the crime of assault by means and force likely to produce great bodily injury, as provided in section 245 of the Penal Code. To this charge he entered three pleas: That of not guilty, once in jeopardy, and former acquittal. As to the two last pleas, the jury found for the people and rendered a verdict that defendant was guilty of an assault. Judgment followed, from which this appeal is prosecuted.

[1]

The charge in the indictment is that defendant committed an assault by means and force likely to produce great bodily injury in “that the said H. W. Brown, Sr., . . . did willfully, unlawfully, feloniously and forcibly make an assault upon the person of one Henry West Brown, Jr., by means

[463]

and force likely to produce great bodily injury, in this, that he, the said H. W. Brown, Sr., did then and there whip, strike, beat, bruise and cut the said Henry West Brown, Jr., with a rawhide whip upon the naked body of him, the said Henry West Brown, Jr., which said whipping, striking, beating, bruising and cutting with said rawhide whip as aforesaid, upon the naked body of the said Henry West Brown, Jr., was likely to and did produce great bodily injury to and upon the said Henry West Brown, Jr.” Appellant insists that the indictment is insufficient and hence the court erred in overruling his demurrer. In support of his contention he cites the case of

People

v.

Perales,

141 Cal. 581, [75 Pac. 170]. In that case the charge was the commission of an assault “by means likely to produce great bodily injury, to wit, with a heavy wooden stick,” the use of which language was held to be insufficient, for the reason that it was not stated how or in what manner the heavy wooden stick was used. The court there said: “The information should have specified the particular means used, which it is claimed constitute an offense within the general terms of the section”; and further held “that the information shall contain a statement of the acts constituting the offense, and the particular circumstances of the offense charged, in such a manner as will enable a defendant to understand the nature of the accusation against him.” In our opinion, the indictment fully complies with the rule announced in