People v. Vierra
Cases that cite this one
1 later published case cites this decision.
- State v. Mead (S.D. 1911)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion 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 952; People v. Venard, 6 Cal. 562; People v. Jacobs, 29 Cal. 579; People v. Cougleton? 44 Cal. 93.)
The indictment, at the most, charged a simple battery,, and its allegations will not support a judgment, as for a felonious assault. '
Judgment reversed, and cause remanded. Remittitur forthwith.
Dissenting Opinion
I dissent, on the ground that, in my opinion, the indictment sufficiently charges an assault with a deadly weapon.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.