People v. Perales

LORIGAN, J.

This is an appeal from a judgment sustaining a demurrer to an information. The charging part of the information is as follows: “Clemente Perales is accused by the district attorney of the county of San Diego, state of California, by this information, of the crime of assault by

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means likely to produce great bodily injury, committed as follows: The said Clemente Perales, on the sixteenth day of November, A. D. 1902, in the said county of San Diego, state of California, and before the filing of this information, did unlawfully and feloniously commit an assault upon the person of J. M. Soto, by means likely to produce great bodily •injury, to wit, with a heavy wooden stick, contrary .to the form and effect of the statute, ’ ’ etc.

The demurrer challenged the sufficiency of this information on various grounds, among others that it did not substantially conform to the requirements of sections 950 and 952 of the Penal Code in this, that it did not set forth the particular circumstances, or statement of the acts, constituting the offense. The demurrer was sustained generally.

No appearance is made for the respondent on this appeal.

Section 245 of the Penal Code, under which this information was framed, reads: “Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable,” etc.

It is not claimed, as we understand the position of the appellant, that the information is sufficient to charge assault with a deadly weapon, or that it sufficiently sets forth the means by which the assault was committed. But it is insisted that the words, “to wit, with a heavy wooden stick,” may be treated as surplusage and rejected, and that the information is still good, because it charges the assault to have been committed “by means likely to produce great bodily injury,” which is the exact language of the statute.

While it is the general rule that it is sufficient to charge an offense in the language of the statute, yet this rule is subject to the qualification, that where a more particular statement of facts is necessary in order to charge the offense definitely and certainly, it must be made. The statute may, and often does, define the offense by the use of precise and technical words which have a well-recognized meaning, or designates and specifies particular acts or means whereby an offense may be committed.