People v. Kersey

• Decision Date: 11 October 1957
• Docket Number: Cr. 5866
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alma Joyce KERSEY, Defendant and Appellant.

Page 52

316 P.2d 52

154 Cal.App.2d 364

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alma Joyce KERSEY, Defendant and Appellant.

Cr. 5866.

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

Oct. 11, 1957.

Samuel C. McMorris, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Herschel T. Elkins, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Having been convicted of assault with a deadly weapon (Penal Code, § 245), appellant demands a reversal on the grounds of (1) insufficiency on the evidence to sustain the judgment, (2) prejudice suffered by reason of insulting questions propounded by the prosecuting attorney.

The genesis of the crime lay in the innocent act of one Hardy who had purchased at a snack shop two cups of coffee for himself and one James Polk and laid one dollar on the counter. While they were enjoying their refreshment, Hardy was called away to speak with Mr. Vernon who sat nearby in his automobile. Appellant, the waitress, placed the eighty cents change on the counter and it soon found its way into the pocket of the same Polk. After he consumed his coffee, he advanced to the corner in front of the snack shop where he engaged in conversation with a group of men. At the same time Hardy returned with his coffee and asked for his eighty cents. When told that she had given the change to his friend, Hardy requested her to retrieve the money. She approached Mr. Polk and made demand. When he refused to pay, she stabbed him with a knife in the abdomen. He had never conversed with her before and he had not argued with her at any time. For more than a year he had lived in the hotel above the snack shop.

She contends that when she demanded Hardy's eighty cents, Polk refused; that when she treatened to call the police, Polk slapped her; that as she fell, he came toward her with his hand in his pocket; that she was frightened and cut him. But her story was rejected by the court.

She now contends that the knife she used was not a deadly weapon in that it was too small and the cut was not severe. It is true that it was a mere pocket knife and that she exhibited it to no one. She said that she later threw it away. In the absence of proof of its length, its dangerous qualities must be inferred by its effective cutting features in the hand of defendant at the time in question. Although it is not inherently dangerous as a matter of law, if the evidence proves that it so opened a man's abdomen as to require hospitalization and an operation, it became a question of fact as to whether it was a dangerous instrument. When a jury has so decided under proper instructions, then its implied finding is final. People v. McCoy, 25 Cal.2d 177, 188, 153 P.2d 315. A nail file that inflicts a 'jagged wound' on the face of the person assaulted may be sufficient to support a charge of assault with a deadly weapon. People v. Russell, 59 Cal.App.2d 660, 665, 139 P.2d 661. Even though a knife is not inherently deadly, it may be proved to have been dangerous by showing the manner in which it was used. People v. Arguilida, 85 Cal.App.2d 623, 625, 193 P.2d 478. The prosecution made such proof. Polk underwent an operation at the General Hospital and his scar was in evidence at the trial. That appellant did not use the knife in self-defense was found by the jury and requires no comment. People v. Adams, 76 Cal.App. 188, 190, 244 P. 114; People v. Webster, 13 Cal.App. 348, 350, 109 P. 637; People v. La Fleur, 42 Cal.App.2d 50, 56, 108 P.2d 99; People v. Bobeda, 143 Cal.App.2d 496, 500, 300 P.2d 97.

Because Polk contradicted appellant's testimony on all material points, neither slapped her nor argued with her nor made any of the statements she attributed to him, the resulting conflict was properly resolved by the jury. People v. Adams, supra; People v. Rilarcosa, 19 Cal.App.2d 537, 540, 65 P.2d 1325.

The claim that the testimony of Mr. Polk was inherently improbable is without support in law. See People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758; People v. Gardner, 147 Cal.App.2d 530, 536; People v. Carr, 113 Cal.App.2d 783, 786, 248 P.2d 977; People v. Thomas, 103 Cal.App.2d 669, 672, 229 P.2d 836. There is nothing inherently improbable in Mr. Polk's testimony. While he stood in front of the snack shop, she stabbed him. She may have been allergic to his personality, or infuriated at his discourtesy toward her patron, or at what she may have thought to be a theft, or she may have been zealous to show her loyalty to her employer. At any rate, the court found that she was the aggressor and did not cut in self-defense.

The claim that Polk should have been corroborated...