People v. Forney

Foote, C. The defendant was convicted of an assault with a deadly weapon. From .the judgment rendered in the premises he has appealed.

His contention is, that the information filed against him charges no offense known to the law. This he -claims on the grounds: 1. That it is not alleged against him that he assaulted &ny human being; 2. That "the pleading in controversy contains no averment that he [119]had any intent to commit, or that he had the “present ability ” to commit the assault of which he was accused.

The language of the information material to be considered is this: “ Harry Forney is accused by the district attorney by this information of the crime of an assault with a deadly weapon, committed as follows: The said Harry Forney on the eleventh day of September, A. D. 1888, at the said city and county of San Francisco, with a deadly weapon, namely, a knife, which he, the said Harry Forney in his hand then and there bad and held, upon the person of one John Coffey, there being, did willfully, unlawfully, and feloniously commit an assault, contrary to the form, force, and effect of the statute,” etc. After reading that the assault was committed “upon the person of one John Coffey,” it is' manifest that a human being was declared to have been assaulted.

The information charges that’ the defendant, with a deadly weapon, describing the weapon, willfully and maliciously committed.an assault'Upon'the person of one John Coffey. The statute bearing upon the matter is: “ Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable,” etc. (Pen. Code, sec. 245.) The intent to commit the assault and the “ present ability ” to do so must be proved, but the statute does not declare that the information shall state these probative facts, and the pleading is sufficient, having followed the language of the section of the Penal Code, supra, in charging the offense. (People v. Turner, 65 Cal. 540-542.)

We therefore advise that the judgment be affirmed.

Belcher, C. C., and Vanclief, C., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment is affirmed.