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Barker v. Hope

1 Cal. Unrep. 877 Court Cal. Decision date 1875-02-01 Docket No. 4384 English

Judges We concur: Crockett, J.; Rhodes, J.

Delivered by McKINSTRY, J.

Contents

Majority

p. 877
JAMES L. BARKER, Respondent, v. THOMAS HOPE, Appellant.
No. 4384;
February 1, 1875.

Headnote

Assault and Battery — Instructions.—If a Defendant Admits That He Struck the plaintiff with a fence pole, when he is charged with having struck him with a heavy club, the court is not unduly asserting judicial knowledge in instructing the jury that “the defendant admits that he struck the plaintiff substantially as charged.”
APPEAL from First Judicial District, Santa Barbara County.
Eugene Fawcett for respondent; Charles E. Huse for appellant.

— We think the first instruction given by the court below is not obnoxious to the criticism to which

p. 878
it is subjected in appellant’s brief. The district court properly asserted judicial knowledge of the fact that a “fence pole” is a “heavy club”; and when the court said, “the defendant admits that he struck the plaintiff substantially as charged, ’ ’ it was a statement of an admission that he struck with a heavy club, and not of the alleged malice accompanying the blow.

Nor do we think the other points made by the appellant are well taken.

Judgment affirmed.

We concur: Crockett, J.; Rhodes, J.