People v. Jefferson

The defendant was charged with the crime of assault with a deadly weapon, it being charged that on a certain day she committed such an assault upon the person of one G. Mehegan. A jury found her guilty as charged, and she has appealed from the judgment which followed.

A quarrel occurred between the defendant and her husband about 2 p. m. on February 27, 1953. In response to a radio call several officers arrived and found the defendant standing in the yard of her home, and her husband out in the street. She had a butcher knife in her hand and told one of the officers that he would have to use his gun to get the knife. While she was standing near the doorway of

Appellant’s sole contention is that it was “substantial error for the trial court to deny appellant’s demand for an election. ” It is argued that where the evidence shows the commission of two offenses, either of which would sustain the charge in the information, and the evidence is not clear as to which of the offenses is relied on for conviction, the defendant may demand that the People make such an election unless the jury is in some other manner informed as to which offense is relied on; that the evidence here showed one such offense with a butcher knife, and another and different offense with a pocket knife; that appellant’s evidence tended to show, as to the assault outside the house, that if she struck Mehegan with the knife at all, she did it in self-defense; that with respect to the second assault within the house, she testified that she did not open the pocket knife; that some of the jurors may have believed that she was guilty of an assault with the butcher knife, while others

It may first be noted that it does not clearly appear that any such demand for an election was made. The only thing that appears in the record is a petition to supplement the record, filed by the appellant’s counsel, in which it is stated that after the completion of the People’s evidence appellant’s attorney appeared with the district attorney in chambers and moved for an order compelling such an election, which motion was denied by the court. The minutes of the court show nothing in that connection and, apparently, there was no reporter present. No effort appears to have been made to obtain a record of what occurred on that occasion, in accordance with rule 36(b) of the Rules on Appeal.

In any event, the rule relied on by the appellant “has no application where a series of acts form part of one and the same transaction, and as a whole constitute but one and the same offense, ’ ’ as stated in People v. Simon, 21 Cal.App. 88 [ 131 P. 102 ]. This whole episode consumed from 10 to 15 minutes, most of which time was taken up in talking outside the house in an effort by the officers to induce the appellant to give up the knife. Both of the matters relied on as being separate and distinct offenses, occurred in the course of a continuous effort on the part of the officers to disarm the appellant. They were a part of the same incident, and they could not reasonably be held to constitute two separate offenses, each complete in itself, and each of which would require a separate charge and a separate trial. Within a moment or two after the cutting of Mehegan’s coat these parties went into the house, the officer grabbed the knife when it was laid down, and the appellant immediately got the other knife and began slashing at the officers. Within a few seconds she was overpowered and dropped the knife. Under these circumstances neither error nor prejudice appears in not compelling the prosecution to elect as to which part of the attack it relied on. This case falls within the principles set forth in People v. Simon, 21 Cal.App. 88 [ 131 P. 102 ], rather than those announced in the Ruiz case.

The judgment is affirmed.

Griffin, J., and Mussell, J., concurred.