People v. Yslas

27 Cal. 630

• Court: California Supreme Court
• Decided: July 1, 1865
• Status: Published

Opinions

By the Court, Sanderson, C. J.

The defendant was indicted for an assault with intent to commit murder, tried and convicted as charged.

At the trial the defense proposed to impeach the testimony of the prosecutrix by proving her to be of a notoriously bad character fbr chastity. The testimony was rejected by the Court, and we are asked to reverse the judgment upon the ground that the decision of the Court in that respect was erroneous.

That the ruling of the Court is sustained by the great mass of authority is not disputed by counsel for appellant; but it is insisted, notwithstanding, that the better reason6is opposed to it. We do not deem it necessary to enter into a discussion as to what the law ought to be upon this subject. There is much force in the argument made in support of the theory that the inquiry into the character of a witness, for the purpose of impeaching his testimony, ought not to be restricted to his reputation for truth and veracity; but the rule is too well settled the other way for us to disturb it. If it is thought that the ends of justice would be subserved by changing the rule so as to make the entire moral character of the witness in the estimation of society the subject of inquiry, let the change be made by the Legislature, and not the judiciary.

The instructions asked for on the part of the defendant were properly refused. The first and second seem to be founded upon the idea that there is a substantial difference between an assault at common law and an assault as defined in our statute. In our judgment no such distinction exists. The common law definition of an assault is substantially the same as that found in the statute. (1 Russell-on Qrimes, 748; 1 Wharton, Section 1,241.] The vice in the two instructions under consideration is found in the idea which they countenance that there may be an intermediate point between the commencement and the end of an assault where if the assailant is interrupted either by the escape of the party assailed or the interference of bystanders, the offense is thereby made incomplete.

In order to constitute an assault there must be something more than a mere menace. There must be violence begun to be executed. But where there is a clear intent to commit violence accompanied by acts which if not interrupted will be followed by personal injury, the violence is commenced and the assault is complete. Thus riding after the prosecutor so as to compel him to run into a garden for shelter, to avoid being beaten, was held to be an assault. (Mortin v. Shoppee, 3 Car. & Payne, 374.) So where the defendant was advancing in a threatening attitude, with intent to strike the plaintiff, so that his blow would in a second or two have reached the plaintiff, if0 he had not been stopped, although when stopped he was not near enough to strike, it was held that an assault had been committed. {Stephen v. Myers, 4 Car. & Payne, 349.) It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self defense or retreat, the assault is complete. 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 act threatened is wanting because the act was in some manner prevented. In the present case the defendant was guilty of an assault if he advanced on the prosecutrix in such a manner as to threaten immediate violence, notwithstanding she succeeded in making her escape without injury.

The third instruction asked for by the defendant was also properly refused because what occurred in the butcher shop appears to have been a part of the res gestee, and at least was admissible on the question of intent.

The third instruction asked for by the prosecution, to the effect that the assault was complete if the defendant had the intent to strike and the ability to do so, when by itself considered, is a little inaccurate in so far as it can be said to ignore the idea of an attempt. But this portion must be read in connection wdth the residue of the charge, which sufficiently informed the jury as to what constituted the attempt, to wit, the defendant’s rushing toward the prosecutrix with the axe in his hand in such a manner as to show that he could and would have struck her had she not escaped through the door. Taking the entire charge together, we do not think the jury-could have misapprehended the law of the case.

As-to the question whether the verdict is sustained by the evidence, it is sufficient to say that the testimony is conflicting.

Judgment affirmed.