People v. Stewart

• Decision Date: 09 January 1961
• Docket Number: Cr. 6952
• Citation: 10 Cal.Rptr. 217,188 Cal.App.2d 88
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Aubrey Woodrow STEWART, Defendant and Appellant.

Page 217

10 Cal.Rptr. 217

188 Cal.App.2d 88

PEOPLE of the State of California, Plaintiff and Respondent, v. Aubrey Woodrow STEWART, Defendant and Appellant.

Cr. 6952.

District Court of Appeal, Second District, Division 3, California.

Jan. 9, 1961.

Patrick E. Duggan, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Angered when his seven year old son Larry refused to spell the word 'the' at the dinner table, Aubrey Woodrow Stewart slapped the boy three times about the face and head, knocking him to the floor, and either by accident or design his boot struck the boy's back. Examined by a physician later the same evening Larry was found to be emotionally upset, and to have bruises on his left face and jaw, reddened ears, a mild swelling over the left cheek, and a bruised, swollen and abraded area, approximately the size of a silver dollar, on the small of his back.

Stewart was subsequently accused by information of violating section 273d of the Penal Code, in unlawfully making an assault and inflicting a corporal injury upon his son which resulted in a traumatic injury. Trial was to a jury. At the People's request the court instructed that assault and battery were offenses necessarily included within the one charged in the information. Stewart was found guilty of battery and was sentenced to 120 days in the county jail. He appeals from the judgment.

The sole contention on the appeal is that the court erred in instructing the jury that battery is an offense necessarily included within that of violation of Penal Code, § 273d.

Section 273d reads: 'Any husband who wilfully inflicts upon his wife corporal injury resulting in a traumatic condition, and any person who wilfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition, is guilty of a felony * * *.' Battery is defined as 'any willful and unlawful use of force or violence upon the person of another.' Pen.Code, § 242.

When one offense cannot be committed without committing another, the latter is an offense necessarily included within the former. People v. Greer, 30 Cal.2d 589, 184 P.2d 512. The language of the accusatory pleading governs in determining whether the crime of which the accused stands convicted is an included offense. People v. Marshall, 48 Cal.2d 394, 309 P.2d 456.

There can be no doubt that the elements of battery were included in the charge of violation of section 273d, as pleaded in the information. It would have been impossible for appellant to make an unlawful assault and inflict a corporal injury resulting in a traumatic condition upon his son without the unlawful use of force or violence upon his person.

However, appellant argues that as a matter of sound social policy a parent cannot be convicted of a battery upon his own child. He says in his brief that the punishment of a child is primarily the responsibility of its parents and that so long as the punishment is considered reasonable by the parent and does not result in traumatic injury the parent's conduct may not be...