People v. Douglass
Before: Thornton
Synopsis
Criminal Law — Assault with Deadly Weapon — Trior Conviction of Felony — Pleading — Reading of Information — Construction of Minutes of Trial. — A statement in the minutes of the trial of a defendant accused of an assault with a deadly weapon and of a prior conviction of a felony, who had pleaded not guilty to the former charge and guilty to the latter, that “ the information is read and the plea of not guilty stated to the jury by the clerk, ” should he construed as a statement that the charge in the information as to the assault only was read, where it does not clearly appear that the whole information was read, and it appearing, from the record, that what was read was in the presence of the defendant, and not objected to, and that the charge as to the assault only was submitted to and passed on by the jury.
Id.—Form of Verdict — General Statement of Offense.—A verdict in general terms finding the defendant guilty of an assault with a deadly weapon, under an information charging that the assault was made upon a person named, is in accordance with law, and free from uncertainty.
Id.—Form of Judgment—General Recital of Conviction.—The judgment is not rendered insufficient or uncertain by merely reciting that the defendant answered and confessed to a previous conviction of manslaughter, and was convicted in the court of the crime of assault with a deadly weapon, without further statement of particulars.
Id. — Misnomer of Person Assaulted. —Whether in the information the name of the person assaulted was written therein “ Daniel Auseon ” or “Daniel Anseon,” was for the trial court to determine, and the trial court having directed the jury that the name written in the information was Daniel Auseon, this court will not revise the action of such court in so holding.
Id.—Assault upon Brakeman of Railroad Tp.ain — Trespass—Question of Fact. — Where the assault was committed upon the brakeman of a railroad company in his efforts to get the defendant off the train, and there is evidence tending to show that the defendant was not a passenger on the train, but a trespasser thereon, it is a question of fact for the jury whether the defendant was a trespasser or a passenger.
Id. — Presumption — Passenger — Trespasser upon Train. — A person on a car used for carrying passengers is presumed to be a passenger, and rightfully there, but this presumption may he rebutted; and no presumption of law or fact arises where the person is found on a car not used for the accommodation of passengers, and it is for the jury to determine whether such person is a passenger or trespasser upon the train.
Id. —Justification of Assault. — A trespasser on a train is not justified in shooting a servant of the railroad company who attempts to put him off, when he can with safety get off and avoid the shooting.
Thornton, J. The defendant was convicted of the crime of assault with a deadly weapon. This appeal is by him from the judgment, and an order denying his motion for a new trial.
Several points are presented and argued on behalf of appellant, which we will proceed to consider.
The defendant-was accused, by the information, of assault with a deadly wrnapon, and of a prior conviction of a felony, viz., manslaughter. On his arraignment he pleaded guilty to the prior conviction of manslaughter, and not guilty as to the charge of assault with a deadly weapon. When the jury had been impaneled and sworn, it is stated, in the minutes of the trial, that “ the infor[283]mation is read and the plea of not guilty stated to the jury by the clerk."
It is urged on behalf of defendant that it was error to read the information to the jury. The counsel for defendant construes the statement above quoted as a statement that the whole information was-read, including both charges made in it, to one of which, as above stated, defendant had pleaded guilty. We do not so construe the statement taken from the minutes of the trial. We understand it as a statement that the charge .in the information as to the assault only was read. It would be entirely unnecessary to read that portion of it in which the prior conviction, to which he had pleaded guilt}', was set forth. At any rate, it does not clearly appear that the whole information was read. If it was read, it was done in the presence of defendant and his counsel, and no objection was made to it. Further, the record show's distinctly that the charge as to the assault only was submitted to and passed on by the jury.
The verdict is in accordance with law (Pen. Code, sec. 1151), and is free from uncertainty. (See People v. McCarty, 48 Cal. 559.) The same is true of the judgment. (See In the Matter of Ring, 28 Cal. 248.) The judgment as entered states the crime of which the defendant had been convicted, and the sentence of the court. This is all that is required by law. There is no uncertainty-in these statements.
It is argued that there is a fatal variance between the information and the proof, inasmuch as the information sets forth that the assault was made on Daniel Auseon, and the proof is, that it was made on Daniel Auseon.
The court, in its charge, told the jury that the defendant is accused of the crime of an assault on Daniel Auseon. The only accusation in this case is that set forth in the information. The direction of the court to the jury is as to what is contained in the information. Whether the question as to what is contained in the
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