People v. Leyba

McKinstry, J. The information charged an assault with a deadly weapon, “to wit, a large knife.” The prosecuting witness swore the defendant assaulted him, and cut his clothing in several places, with a knife five or six inches long. The defendant testified he had no knife when they met, and that he made no assault, [408]but that the prosecutor struck and wounded him with the handle of a whip.

The court charged the jury that a deadly weapon was one likely to produce death or great bodily injury; that there are cases where the character of the weapon, whether deadly or otherwise, depends on the manner in which it is used; and, in effect, that it was for the jury to decide whether a weapon was used, and after considering the evidence as to the manner of its use, whether it was a deadly weapon.

And the court further charged, amongst other things: “If you find from the evidence that the defendant made an assault as laid down in the information, but not with a deadly weapon, you should find him guilty of an assault only. If you find from the evidence that the assault was made by the defendant at the time and place mentioned in the information, and that said assault was made upon, the prosecuting witness with a weapon likely to produce death or great bodily injury, it will be your duty to find him guilty as charged.in the information.”

The defendant contends the court erred in leaving it to the jury whether the weapon was deadly, and erred in the charge above quoted in that it “ ignored the felonious intent.”

The charge as to deadly weapon we think correct, in view of the conflicting testimony; but.if not strictly correct, was favorable to .the defendant. If no weapon was used, defendant was not injured by the charge. If the weapon described by the prosecutor was used, the defendant certainly was not injured by the failure of the court to instruct that a knife “ five or six inches long ” was, as a matter of law, a deadly weapon. Nothing is decided in People v. Fuqua, 58 Cal. 246, which conflicts with this view. There a'defendant on trial claimed that the deceased had advanced upon him with a pick-handle; and the court, although specially requested by the jury, ■refused to instruct them as to what “ is termed by law a deadly weapon.”

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