People v. Bradbury

McFARLAND, J.

This case was in the district court of appeal, first district, and an opinion was there delivered. We approve and adopt all of the'following part of that opinion:—

“The defendant is charged in the information herein with an assault with intent to commit rape. Upon the trial thereon the jury found him guilty of an assault, and he was sentenced to pay a fine of one hundred and fifty dollars. From this judgment he has appealed:—

“1. That upon the charge set forth in the information a conviction of an assault could be had is not disputed. (See

People

v.

Green,

1 Cal. App. 432, [82 Pac. 544].) It is urged, however, that as the jury found the defendant was not guilty of an attempt to commit rape he could not be convicted of an assault, unless there was evidence of some violent injury to the prosecuting witness; and that the record fails to show that such evidence was given. An assault is defined (Pen. Code, sec. 240) to be ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ The ‘violent injury’ here mentioned is not synonymous with ‘bodily harm,’ but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. The term ‘violence’ as used here is syn

[677]

onymous with ‘physical force,’ and in relation to assaults the two terms are used interchangeably.

(State

v.

Wells,

31 Conn. 212 ;

State

v.

Daly,

16 Or. 241, [18 Pac. 357] ; Am. & Eng. Ency. of Law, ‘Violence.’) Mr. Bishop says (2 Crim. Law, secs. 32-34) : ‘The kind of physical force is immaterial ; ... it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will. ’