People v. Congleton

By the Court, Wallace, C. J.: The prisoner was indicted for the offense of assault with intent to commit murder, and found guilty of an assault with a deadly weapon,-with intent to do bodily harm on the person, etc. The appeal is taken from the judgment upon the verdict.

1. The indictment is sufficient in form and substance, as one for the crime of assault with intent to commit murder. This we understand to be conceded by the prisoner’s counsel. But it is claimed that though the indictment be sufficient to sustain a conviction for that particular offense, or for a simple assault, as being included in the charge, it will not support a conviction for an assault with a deadly weapon made with intent to do bodily harm on the person of another. This point is rested upon the circumstance that the indictment here fails to designate the particular character of the weapon used, as being a pistol or knife, etc., and avers it in general [94]terms to have been “a deadly weapon.” That an indictment for an assault with a deadly weapon, with intent to do bodily injury to another, may in general terms aver the assault to have been made “with a deadly weapon,” we have no doubt. In so doing it would but follow the language of the statute by which the offense itself is defined. (Section 50.) It is not true that in such case “ the weapon becomes at once a necessary ingredient of the crime,” as argued by counsel, but the nature of the weapon, as being deadly or otherwise, is alone important; and it is essential to aver it in some appropriate way to have been deadly in its character. Hence, had it even been averred here that the weapon used was a pistol, it must still have been in some way alleged that it was in fact a deadly weapon. This might be done in toiidem. verbis, or it might have been alleged to have been loaded in the usual way, or that the pistol, though not so loaded, was of such dimensions, etc., as to constitute it a deadly weapon y>er se in the hands of the prisoner. (People v. Jacobs, 29 Cal. 579.)

The indictment here alleges that the prisoner committed the assault with a deadly weapon with an intent to do murder, and the verdict finds that he committed the assault with a deadly weapon, not with intent to do murder, but to do bodily harm—a distinct offense, but one which is necessarily included in that charge in the indictment. (People v. Davidson, 5 Cal. 133; Ex Parte Ah Cha, 40 id. 426, and cases there cited.)

2. It is next objected that the verdict, as found, is one for a simple assault merely. Its language is, “ guilty of an assault with a deadly weapon with intent to do bodily harm on the person of A. P. Murphy.” The offense as defined by the statute is, “ an assault with a deadly weapon * * * with intent to inflict, upon the person of another a bodily injury.” (Sec. 50.) “To do bodily harm upon the person ” of another is certainly “to inflict upon the person of another