People v. Watson

GAROUTTE, J. The defendant has been found guilty of an assault with intent to commit murder. He now claims that the evidence is insufficient to support the verdict.

There is evidence in the record which tends to show that the defendant Watson, when somewhat under the influence of liquor, seized a boy about fifteen years of age, tied him by the neck to his (Watson’s) horse’s tail, using the hair of the horse’s tail for that purpose, then mounted his horse, and, with his pistol in his hand and threats to kill issuing from his mouth, rode about one-quarter of a mile, leading the boy. This journey was also interspersed by incidents such as defendant’s firing his pistol. It further appears that this reckless deed was done by reason of the feeling of hatred held by defendant against the boy’s elder brother. The question as to the intent with which these acts were done by defendant was a pure question of fact, to be determined from all the circumstances of the case; and from those circumstances the jury could well declare that the intent of defendant was to kill and murder this fifteen-year-old boy. It is said in People v. Landman, 103 Cal. 580: “Of course, under these circumstances a person’s intent cannot be proven by direct and positive evidence, yet it is none the less a question of fact to be proven like any other fact in the case, and all the circumstances surrounding the assault furnish the rule upon which its proper solution depends.”

The court instructed the jury as follows: “The law provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. 2. Under the information in this case the defendant can be convicted of either assault to murder, or of an assault, as the evidence may establish. 3. Gentlemen, the form of your verdict must be either: 1. We, the jury, find the defendant not guilty; or 2. We, the jury, find the defendant guilty as charged; or 3. We, the jury, find the defendant guilty of assault.” Section 245 of the Penal Code provides: “Every person who commits an as[344]sault upon the person of another with a deadly weapon or instrument, or hy any means or force likely to produce great bodily injury, is punishable,” et cetera. Under the evidence and the allegations of the information, it is clear that this defendant could well have been convicted of the crime defined by this section of the-Penal Code. If the jury believed the defendant committed the acts indicated by the evidence, and also believed that there was no intent in his mind at the time to kill and murder the boy,.they could well have found a verdict against him of making an assault by means and force likely to produce great bodily injury;-yet, by the instructions of the court just quoted, the jury in effect were told that they could not find such a verdict. They were informed that the defendant could be convicted of an assault with intent to murder, or a simple assault. Bxpressio unius est exclusio alterius. This construction of these instructions is doubly emphasized when we find the court telling the jury that the verdict must be in one of the following forms; and upon examining those forms we find no form of verdict authorized under the section of the Penal Code already quoted.