People v. Macias

In an information filed in Merced County, defendant Leo Macias was charged with a violation of section 245 of the Penal Code, it being alleged that said defendant, on October 30, 1945, committed an assault upon the person of J. B. Jackman, while armed with a deadly weapon, “to wit: a wooden club.” A demurrer to the information, interposed by defendant, was overruled, and after trial by a jury he was convicted. A motion for a new trial, based on all of the statutory grounds, was denied, and defendant has appealed from both the judgment and the order denying a new trial.

Asserted grounds for reversal are that the trial court erred in overruling defendant’s demurrer to the information, that it misdirected the jury in numerous respects, that the district attorney was guilty of prejudicial misconduct, and that the verdict is contrary to the evidence and the law.'

The evidence establishes that defendant Macias was, on the date of the alleged offense, the proprietor of a saloon and hotel in Merced. About seven o ’clock in the evening of October 30, 1945, J.

Macias, testifying in his own behalf, asserted that Baker and Jackman were intoxicated, that Baker was making a disturbance and that it was Jerkovich and two other men who put him out; that Jackman, gritting his teeth, came up where Macias was sitting, whereupon Jerkovich asked him to get out, which Jackman did; that a woman who worked for him then told him that there was a fight outside, whereupon he looked out the window, then called the police; that Jackman, Baker

One Henry Jordan, testifying for the defense, testified that he was present in the barroom and after Baker and Jackman had been put out and the door locked, the witness, Ayala and another person were about to leave when they encountered Baker and Jackman with iron bars in their hands; that Ayala grabbed Baker, but the witness ran upstairs onto a balcony, from which place he saw Jackman, Baker and Ayala wrestling over the bars; that Jackman hit Baker and Ayala and they fell down; that Ayala then hit Jackman with a bar; that Macias was not out there then; that when he came out Jack-man was going down the street, and Ayala was hitting Baker across the head with a bar; that he saw defendant hit Ayala across the arm with the stick he held in his hand; that he did not see defendant hit Jackman.

One Lopez, the bartender for Macias, was also called for the defense, and testified that Baker knocked over some bottles of beer and that he fell to the floor and was then put out; that defendant was going to put him out, but the foreman (Jerkovich) said he would take care of him; that the foreman also put Jackman out, and the doors were again closed; that he heard noise outside, and the side door rattling, and later looked out the window and said Jackman, Baker and Ayala fighting; that he called Mrs. Reyes to tell Macias that they were killing Ayala; that defendant went to the telephone and made a call, then grabbed a stick and went outside, while Lopez remained inside; that after about 10 minutes the police arrived, and they brought Ayala in with his face covered with blood, and with an iron stake in his hand; that he took the stake away from him and later gave it to the officers; that he

Mrs. Reyes, who was a cook at the hotel, said she saw three men fighting outside—Baker, Jackman and Ayala—after the bartender called her; that she called to defendant who went to the telephone, then told the bartender to open the door for him and he went outside; that she did not see anything in his hand.

The iron spikes or bars which were mentioned by some of the witnesses had apparently been taken from the truck used by Jerkovich, which was parked just outside the hotel. Both Jackman and Baker denied having them in their possession at any time.

Appellant’s first assigned error is that the information was insufficient and that his demurrer thereto should have been sustained. The information read:

“Leo Macias is accused by the District Attorney for the said County of Merced, State of California, by this Information of the crime of a felony, to wit: a violation of Section 245 of the Penal Code of the State of California, committed as follows: The said Leo Macias, on or about the 30th day of October, 1945, at and in the said County of Merced, and State of California, and prior to the filing of this Information, did wilfully and unlawfully commit an assault upon the person of another, to wit: J. R. Jackman with a deadly weapon to wit: a wooden club.”

The statute involved is section 245 of the Penal Code which reads: " Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable,” etc. Appellant argues that a wooden club is not a deadly weapon as matter of law; and that there being no allegation concerning the manner in which the club was used in this case, the information was insufficient; that a club is a deadly weapon only under particular circumstances and that the information failed to allege any such circumstances.

Section 952 of the Penal Code, as it now reads, after amendment in 1927 and 1929, provides that in charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical aver

In People v. Mitchell, 40 Cal.App.2d 204 , 208-210 [ 104 P.2d 545 ], the effect of the change in the language of said section 952 was discussed, and the court said that “it is now sufficient to plead the offense in the exact terms of the statute, and the accused is not entitled to a detailed allegation setting forth the particular circumstances. The accused is amply protected because he is legally entitled to a transcript of the testimony upon which the indictment or information is based.-’ ’ (Also see People v. Pierce, 14 Cal.2d 639 , 644-646 [ 96 P.2d 784 ] ; People v. De La Roi, 23 Cal.2d 692 , 697 [ 146 P.2d 225 , 151 P.2d 837 ] ; People v. Beesly, 119 Cal.App. 82 , 84-86 [ 6 P.2d 114 , 970] ; People v. Silver, 75 Cal.App.2d 1 , 3-4 [ 170 P.2d 80 ].) Even before the amendments to section 952, supra, it had been held that an information which charged an “assault with a deadly weapon, to wit, a large shovel,” was sufficient (People v. Weir, 10 Cal.App. 460 [ 102 P. 539 ]); and in the Weir ease the case of People v. Perales, 141 Cal. 581 [ 75 P. 170 ], relied upon by appellant herein, was distinguished. Also see People v. Savercool, 81 Cal. 650 [ 22 P. 856 ].

Appellant’s next contention is that the trial court erred in refusing to give an instruction on the subject of admissions, which was requested by him, and in giving one which, it is contended, is erroneous. The requested instruction reads: “An admission is the acknowledgment of the truth of some of the facts, constituting the alleged offense, and you are instructed that evidence of oral admissions of the Defendant must be received with caution.” The one given states: “An admission is an acknowledgment of the truth of some facts constituting an alleged offense and, if you believe from the evidence in this case that the defendant has made some admission in this case tending to show his guilt of the offense charged, you may consider it as you would any other fact in the case and give it such weight as you deem proper. ’ ’

Section 2061, subdivision 4, of the Code of Civil Procedure provides that a jury is to be instructed by the court on all proper occasions that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral ad

intended victim be seriously injured. The crime of assault with a deadly weapon may be committed without the intended victim having received any physical injury.

“If a person unlawfully attempts to strike another with a deadly weapon, and has a present ability to commit a violent injury on that person, the assault is completed.

“The unlawful attempt coupled with a present ability to commit a violent injury on the person of another constitutes the crime. In such a case the attempt has been made, coupled with a present ability to commit a violent injury within the meaning of the statute.

“It cannot be said that the ability to do the threatened act is wanting because the act was in some manner prevented.

“An assault cannot be made incomplete, merely because the intended victim resists and saves himself from injury or escapes. ’ ’

Appellant’s objections to this instruction are that it declares : That no physical injury need be shown, that the crime was committed although the complainant saved himself from injury or escaped, that the crime was committed though no blow was struck, .and that it assumes that a club is a deadly weapon per se regardless of its use.

However, appellant fails to note other instructions given by the court at defendant’s request, which read:

“I instruct you that whether the instrument alleged to have been used by the Defendant was or was not a deadly weapon is a matter of fact for you jurors to determine, and in determining whether or not an instrument is a deadly weapon you must take into consideration the manner of its use, the injuries inflicted by it, if any, the size and nature of the instrument and all the attendant circumstances. ’ ’

“Every material element of the crime charged in the Information must be established beyond a reasonable doubt. In this particular charge there are three elements that must be proved by the Prosecution. These are:

'‘1. That the Defendant intended to assault the complaining witness, J. B. Jackman;

“2. That he did actually assault him;

“3. That he assaulted him with a deadly weapon;

“If any of these elements is not established to a moral certainty and beyond all reasonable doubt, you must acquit the Defendant. ’ ’

Also see People v. Freeman, 86 CaL.App. 374, 376 [ 160 P. 826 ] ; People v. Raleigh, supra; People v. Peak, 66 Cal.App.2d 894 , 900 [ 153 P.2d 464 ],

Appellant further insists that the trial court invaded the province of the jury by instructing that an offense had been committed, when it instructed them as follows;

“It is impossible, of course, to read a man’s mind as you would a book and thus determine his intention. You will, therefore, take into consideration in deciding this question all of the circumstances surrounding the commission of the crime, and the mental condition of the accused; for the law says, that the intent is manifested by the circumstances connected with the offense and the sound mind and discretion of the accused; but it also declares, that all persons are of sound mind who are neither idiots, lunatics, nor affected with insanity. ’ ’

Appellant asserts that this instruction is a positive and unmistakable assumption and declaration that there was a “crime” and “an offense” committed; and that the jury therefore had no alternative but to convict. We think appellant reads more into the language of the court than is justified, and that the jury was not thereby instructed that defendant had committed a crime. See People v. Ramirez, 56 Cal. 533 , 537 [ 38 Am.Rep. 73 ] ; People v. Besold, 154 Cal. 363 , 369-370 [ 97 P. 871 ] ; People v. Wilkins, 158 Cal. 530 , 536 [ 111 P. 612 ],

Next, appellant charges that the court invaded the province of the jury by assuming in its instructions that a deadly weapon was used, because it said:

“You are instructed, that in the offense of assault with a deadly weapon, an intent to use the deadly instrument may be implied from the manner of its use.

“If the act is wrongful and the use of the instrument under the circumstances is unlawful, the intent may be inferred from the method used, including the position of the parties and all of the surrounding circumstances.

“Where the act is both unlawful and wrongful, and well calculated to inflict, serious personal injury, the law will imply an unlawful intention and override any actual intention existing in the mind of the aggressor.”

‘'I instruct you that in this case, if you are convinced from the evidence beyond all reasonable doubt and to a moral certainty, that the defendant, Leo Macias, on or about October 30, 1945, did wilfully and unlawfully commit an assault upon the person of J. R. Jackman with a deadly weapon or instrument, and that such instrument when used in such manner was likely to produce death or great bodily injury, your verdict should be guilty.”

Appellant’s next assertion is that the court erred in refusing to instruct the jury that as a matter of law. a club is not a deadly weapon, and that it should have given the following instruction proposed by defendant: “An instrument such as a stick or club is not a deadly weapon as a matter of law, and the presumption of innocence includes the presumption that it was not used as a deadly weapon. You must give the Defendant the benefit of this presumption.” People v. Lee, 23 Cal.App.2d 168 [ 72 P.2d 572 ], is relied upon by appellant as authority for the requested instruction, but we find nothing in that opinion indicating that such an instruction was there given or requested. As hereinbefore stated, the court instructed the jury, at defendant’s request, that whether or not the instrument alleged to have been used was a deadly weapon was a matter of fact for them to determine; also they were fully instructed on the presumption of innocence, in the language of section 1096 of the Penal Code. The instructions given sufficiently covered the subject. (See Pen. Code, § 1096a.)

Appellant next urges that the court erred in refusing to instruct the jury on the effect of legal presumptions, and in failing to give the following instruction requested by him: “A presumption may be controverted by other evidence, direct or indirect, but unless so controverted the jury are bound to find according to the presumption. In this case the defendant, Leo Macias, is presumed to be innocent of any crime and you must give this presumption full weight throughout your deliberation.” The jury was instructed regarding the presumption of innocence, in the language of section 1096 of the Penal Code. That was sufficient. The giving of instructions couched in varying language but embodying the same principle of law is unnecessary. If the principle of law is once correctly stated, that is enough. In People v. Kynette, 15 Cal.2d 731 , 757 [ 104 P.2d 794 ], it was said: “The first refused instruction concerned the presumption of innocence. This subject was adequately covered by the instruction given by the court, which

Another alleged error is the refusal of the trial court to instruct the jury on the definition of burglary, and in refusing to instruct them that “any person who attempts to enter a building with intent to commit any felony is guilty of a felony.” The refusal to give such an instruction was entirely justified. Its possible application to any of the evidence in the case is so remote that the giving of same would only have tended to confuse the jury; and it had no relation to the issues. The urging of such an alleged error as ground for reversal of the judgment only tends to render questionable the faith of appellant’s counsel in the merits of defendant’s appeal by multiplying alleged errors; and, as said by the court in United States v. Rowe, 56 F.2d 747 , 750, “set hurdles for the judge to leap.” This one may be hurdled without further comment.

Another assignment of error made by appellant is that the court erred in instructing the jury on the limitations of a police officer in using force to make an arrest without a warrant, it being argued that since there was no arrest by the officers without a warrant the instruction could only have reference to the conduct of the defendant; and that the sole inference that the jury could draw was that defendant, as a private person, had even less justification in making an arrest or using force without a warrant than a police officer had. While we do not see that the instruction was relevant, appellant’s conclusion is unwarranted, and we are satisfied that defendant suffered no injury by the giving of same.

We are next urged to hold that the trial court committed reversible error in failing to instruct the jury of its own motion on included offenses, though appellant states that he did not request one and that his position throughout the trial was that the information was based on an alleged striking of Jackman with a club, and that defendant’s position was simply that he did not strike Jackman. But he argues that the court, by other instructions given and previously discussed, raised the issue of simple assault and, therefore, should have submitted an instruction on it. This course of reasoning does not appeal to us as furnishing any ground for complaint. (See People v. McCoy, supra, at p. 195 thereof.)

Finally, appellant contends that the district attorney was guilty of prejudicial misconduct for two reasons. The first was because in cross-examining defendant’s witness Jordan the following occurred:

"Q. By the way, where do you live 1

“Mb. Galvin Jb. : Object to that as incompetent, irrelevant and immaterial.

“Mb. Adams : He asked him where he lived.

“The Coubt: Where the witness lives or where he was at that time ? A. At that time ?

“Me. Adams: Now, where are you living now? A. Now in the County Jail now.

“Me. Galvin Jb. : I object to this and assign it as prejudicial misconduct, as definitely an intentional act on the part of the District Attorney.

“Mr. Adams : I can find out where he lives, it is cross-examination.

“The Court: Let it stand as it is.

“Mr. Galvin Jr. : I will ask the Court to instruct the jury to disregard the testimony and admonish them that it has no bearing at all about the position of the defendant in this case.

“The Court: Well, of course, the jury will understand that,-

“Mr. Adams : It goes to his credibility.

“The Court : (continuing) the witness happens to be in jail has no bearing on this case.

“Mr. Galvin Jr. : Counsel stated it goes to the credibility of this witness, that is absolutely false.

“The Court: The question of course will have to go out and the statement disregarded.

“Mr. Galvin Jr. : Will the Court instruct the jury that it does not go to the credibility of the witness?

" The Court : No, it does not go to the credibility of the witness and should go out and should not be considered by the jury.”

Subsequent questions developed the fact that Jordan had lived at the defendant’s hotel for several weeks after the events charged in the information.

Appellant contends that the question asked by the district attorney was a deliberate attempt to degrade the witness and that the instruction of the court could not have had the effect of inducing the jury to disregard it; and that since the verdict is in conflict with Jordan’s testimony, its rejection by the jury “is understandable only on the assumption that the witness was degraded in the jury’s eyes by reason of the misconduct of the district attorney.” In People v. Roeder, 41 Cal.App.2d 495 , 501 [ 107 P.2d 92 ], the court said regarding a similar contention: ‘ ‘ The question asked by the prosecution as to whether or not appellant slept in jails at San Diego and at Elsinore on the two nights prior to his return to San Bernardino in March of 1940 were not of sufficient importance to prejudicially affect appellant’s substantial rights.”

Finally, it is urged by appellant that the verdict is contrary to the evidence and contrary to law and resulted in a miscarriage of justice. In People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ], the court said that a court on appeal will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt; that it is the function of the jury in the first instance and of the trial court, after verdict, to determine what facts are established by the evidence, and that before the verdict of the jury which has been approved by the trial court can be set aside on appeal upon the ground of insufficiency of the evidence “it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.”

We cannot say that upon no hypothesis is there sufficient evidence to support the conclusions of the jury and the trial court. On the contrary, there is ample evidence to support such conclusions, and it was for the jury to determine what

Peek, J., and Thompson, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied December 23, 1946.