People v. Hahn

• Decision Date: 28 December 1956
• Docket Number: Cr. 5737
• Citation: 305 P.2d 192,147 Cal.App.2d 308
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Eugene HAHN and Thomas George Wood, Defendants and Appellants.

Page 192

305 P.2d 192

147 Cal.App.2d 308

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Eugene HAHN and Thomas George Wood, Defendants and Appellants.

Cr. 5737.

District Court of Appeal, Second District, Division 2, California.

Dec. 28, 1956.

Culver Van Buren, Burbank, for appellants.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Pursuant to verdict appellants were adjudged guilty of assault by means of force likely to produce great bodily injury. Pen.Code, § 245. They appeal from both the judgment granting them probation and from the order denying their motion for a new trial. They now demand reversal on the grounds of insufficiency of the evidence and the admission of their confession assertedly not free and voluntary. They were accused in three counts, to wit: robbery, kidnapping for the purpose of robery and assault by means of force likely to produce great bodily injury. Acquittal on the first two charges followed the trial.

Appellants met one Adams in a saloon in Brbank during the evening of January 5, 1956. He was a stranger to them and to a woman with thom they were drinking, but on request he agreed to drive the three to their homes after closing time at 2:00 a. m. All four left the sanctuary of Bacchus together, Hahn carrying a six-pack carton of beer. They were soon compelled to stop by reason of some defect of the conveyance. While they waited, appellants and the woman imbibed the beer in which Adams did not participate. He drove on and after letting the woman out near her apartment, the men continued. Hahn sat by Adams who drove while Wood occupied the rear seat. Pursuant to Hahn's directions, Adams drove off Olive Street. He was told to stop and as he did so he was struck on the back of his head by Wood with a beer can. He pretended to be unconscious as someone removed his wallet from his hip pocket but left undisturbed his money in other pockets. One of the men said, 'If he makes a move, kill him.' Hahn thereupon took the wheel and drove for several blocks. Unable to turn on the headlights, they stopped, revived Adams and as they were in the act of removing him to the rear seat, he made his escape, sought refuge in the nearby home of one Kinzler who called police. Appellants drove away in Adams' authomobile while the officers conveyed Adams to the hospital where he was treated for cuts on his head. His car was soon discovered and appellants were apprehended while sitting in a conveyance at the rear of Hahn's home.

Appellants relate a rejected account of the above occurrences. Hahn testified that the three drove around, drinking beer; that Adams refused to turn off the ignition at Hahn's request; that when Hahn reached over and shut off the motor a scuffle ensued; that when Wood attempted to stop the fight he might unintentionally have hit Adams.

After appellants had been incarcerated, they signed their confessions on January ninth and tenth.

Evidence Sufficient

It is contended that there was no evidence as to the size of the head wounds, nor as to the severity of the cuts; that the identity of the party guilty of the battery was not proved; that at the time he appeared at Kinzler's door there was neither blood on Adams nor any unusual mark; that his cuts did not require sutures or any follow-up treatment; that 'the record is devoid of any evidence whatsoever that the force applied was likely to have effected great bodily injury.'

The record shows that the three men were in the automobile. Hahn sat beside the driver while Wood sat behind him. There is no proof that Adams was hit by a total stranger. The inference is reasonable that the blow was directed by Wood. But since Hahn and Wood were acting in concert and together, they both enjoyed the fruits of their crime, it follows that both were guilty of doing whatever either did. As to whether the battery was severe enough to warrant a conviction under Penal Code section 245, that was a question of fact and the jury found it against appellants. Adams testified that he was hit on the back of the head 'with an empty beer can four times' but was not made unconscious; was hit 'in the back of the head towards the top with a beer can'; he did 'not know whether they took any stitches in his head'; was hit 'in the back of the head towards the top, and a couple of other times, a total of four times' he was struck; was hit 'fairly hard' the first time; was conscious but made no outcry.

Inasmuch as the evidence was in conflict as to whether appellants beat Adams with a tin can, the jury enjoyed the prerogative of determining whether appellants had assaulted him 'by means of force likely to produce great bodily injury.' While a tin beer can is not regarded as a deadly weapon, yet under the facts of this case the jury could fairly find that it was applied to Adams' head with a force likely to produce a great bodily injury. It is not necessary that it be found that the can was actually used with such force that it did cause great bodily injury. The gravamen of the offense denounced by section 245 is 'the likelihood of bodily injury as a result of the force used or attempted to be used. The degree of force used is not as important as the manner in which it is used.' People v. McIlvain, 55 Cal.App.2d 322, 331, 130 P.2d 131, 136. The measure to be applied to the force is whether it was likely to cause serious bodily injury. People v. Pullins, 95 Cal.App.2d 902, 904, 214 P.2d 436; People v. Schmidt, 66 Cal.App.2d 253, 256, 152 P.2d 1021. It is not to be measured by the extent of the injuries suffered by the victim. Such injuries need not be necessarily serious. Ibidem. A conviction under the section may be had where the defendant used only his fist if the circumstances of the assault and the manner of its execution warrant the jury in finding that the force used was likely to produce great bodily injury. People v. Score, 48 Cal.App.2d 495, 498, 120 P.2d 62. The crime is complete where the act of defendant was 'a 'means of force likely to produce' the injury.' People v. Pullins, supra [95 Cal.App.2d 902, 214 P.2d 437].

Inasmuch as the reviewing court is powerless to reverse a judgment where the facts established warrant inferences of a defendant's guilt, this appeal must on that ground be denied....