People v. Martin

HERNDON, J. In an information filed on August 15, 1960, appellant was charged with assault with a deadly weapon in violation of section 245 of the Penal Code. On September 7, 1960, appellant’s motion under section 995 of the Penal Code was denied, whereupon he entered a plea of not guilty. Appellant waived a jury trial.

At the trial the prosecution introduced substantial evidence that on June 5, 1960, in the City of Los Angeles appellant, acting without provocation, attacked one Richard M. Lewis, striking him on the head with a hammer described in the [323]testimony as a “ball peen hammer—flat on one end and round on the other. ’As a result of this assault, the victim sustained a fractured skull and was hospitalized for approximately 10 days. The trial court found appellant guilty and entered judgment, sentencing him to county jail for a term of one year. He has appealed from the judgment and sentence.1

Appellant expressly concedes “the sufficiency of the evidence to sustain the court’s finding of guilt.” He advances as his sole ground of appeal the contention that his constitutional rights were violated in that “the accusation fails to set forth the essential acts constituting the offense with sufficient clarity on which he may properly prepare and present a defense.”

The information in this ease states the accusation against appellant in the following language: “The said TI. L. Martin is accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of Assault With a Deadly Weapon, in violation of Section 245, Penal Code of California, a felony, committed as follows: That the said U. L. Martin, on or about the 5th day of June, 1960, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously commit an assault with a deadly weapon upon Richard M. Lewis, a human being. ’ ’

In his opening brief appellant indicates the particular in which he claims the accusation to be deficient, and states the essence of his argument as follows: “The error urged herein is that the accusation fails to give the accused notice of the specific type of deadly weapon claimed to have been used by the appellant in order that he may have proper notice in order that he may prepare and present a defense that such a weapon was not used and establish that the claimed injury could not have possibly been inflicted by such a weapon, or that the accused not only did not possess such a weapon but that such a weapon was not accessible to him, or to obtain expert testimony that such an injury could have been the result of a fall or other accident removed from the alleged assault.”