Legal Opinion

People v. Vierra

California Supreme Court

Decided July 1, 1877No. 10,273PublishedCited by 1 opinion

Appeal from the County Court, County of San Luis Obispo. The indictment charged that “ the said Juan Tierra, on the 26th day of February, 1877, at,” etc., “ did then and there, being armed with one certain pocket-knife, the same being a deadly weapon, strike, cut, wound, and bruise feloniously, willfully, and of his malice aforethought, one Antonio Garcia de la Rosa.

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Appeal from the County Court, County of San Luis Obispo. The indictment charged that “ the said Juan Tierra, on the 26th day of February, 1877, at,” etc., “ did then and there, being armed with one certain pocket-knife, the same being a deadly weapon, strike, cut, wound, and bruise feloniously, willfully, and of his malice aforethought, one Antonio Garcia de la Rosa. And the said Juan Tierra, then and there being armed, as aforesaid, did assault, as aforesaid, the said Antonio Garcia de la Rosa, to do great bodily injury, contrary,” etc., etc. The jury found the defendant guilty, as charged…

1Opinion of the Court

This indictment is not sufficient to sustain a conviction for the offense attempted to be charged. An averment that the defendant was armed with a deadly weapon and made an assault, is no statement of the fact that the assault was with the weapon. He may have been thus armed and yet have committed a simple assault, or an assault with some other instrument not deadly in its character. The indictment should have stated directly and certainly that the assault was with the weapon; that is, that the weapon was used by the defendant as an instrumentality of the assault. (Penal Code, secs. 245 and…

2Cases cited2 opinions

  1. People v. VanardCalifornia Supreme Court · 1856
  2. People v. JacobsCalifornia Supreme Court · 1866

3Cited by1 opinion

  1. State v. MeadSouth Dakota Supreme Court · 1911

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