People v. White
| Decision Date | 29 January 1963 |
| Docket Number | Cr. 4167 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Louis C. WHITE, Defendant and Appellant. |
Richard W. Johnson, San Francisco, for appellant, under appointment of the District Court of Appeal.
Stanley Mosk, Atty. Gen. of the State of California, John S. McInerny, John J. Klee, Jr., Deputies Atty. Gen. San Francisco, for respondent.
Charged with assault with a deadly weapon with intent to commit murder (Pen.Code, § 217), defendant was tried to a jury and found guilty of the lesser included offense of assault with a deadly weapon (Pen.Code, § 245). He appeals from the judgment.
The asserted assault was upon defendant's wife. She testified that he pulled her into the bathroom and struck her on the head with a 'great big rock'. The rock was not produced. She did not testify to its dimensions, but the transcript makes clear that she did, on at least one occasion describe its size to the jury by gestures. A doctor testified that the laceration of her scalp was two inches long, 'through all layers of the scalp * * * to the bone,' that fragments of hair were driven into the wound, and that suturing was required. Defendant denied being present when his wife was injured, and advanced the theory that her wound resulted from a fall in the bathroom.
The jury obviously accepted the contention of the prosecution. Defendant cannot attack the sufficiency of the evidence in this respect. He does, however, argue that the evidence establishes as a matter of law that the rock was not a deadly weapon, and that thus the utmost offense proven was a simple assault. The rule is that an instrument not inherently a deadly weapon may become so by reason of its use. In determining this question, the jury may look to the nature of the instrument, the manner of its use, and the injury inflicted (People v. Russell, 59 Cal.App.2d 660, 665, 139 P.2d 661). Although the rock was not produced, it was adequately described to the jury, and the injury it inflicted was demonstrated in detail. Whether it was a deadly weapon was at most a mixed question of law and fact to be determined by the jury upon proper instructions (People v. Copeland, 157 Cal.App.2d 185, 320 P.2d 531, and cases there cited). Here the instructions are unquestioned. The facts amply support the jury's implied finding. The decision principally relied on...
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