People v. Apgar

Opinion — Sawyer

By the Court, Sawyer, C. J.:

The defendant was indicted under the statute for an assault with a deadly weapon, with an intent to inflict bodily injury, and convicted of a simple assault only. Defendaht appeals, and the Attorney General moves to dismiss the appeal for the want of jurisdiction. Under the provisions of the Constitution, the Court only has jurisdiction in cases amounting to felony. (People v. Applegate, 5 Cal. 295; People v. Shear, 7 Cal. 139; People v. Vick, 7 Cal. 165.) This Court, therefore, has no jurisdiction of an appeal in a case of a simple assault, the offense for which defendant was convicted. But it is insisted, that the question of jurisdiction is to be determined by the character of the offense charged in the indictment, and not by the offense of inferior grade of which the party may be convicted. It was held otherwise in People v. Cornell, 16 Cal. 187, a case somewhat similar to this, in which *391the offense might be punished either as a felony or misdemeanor. The judgment was held to determine the character of the case for the purpose of the appeal; and as the judgment was for a misdemeanor, it was held that there was no jurisdiction. In People v. Gilmore, 4 Cal. 380,the Court say: “An indictment, by operation of law, for murder, is also an indictment for manslaughter, and every less offense that may be included under the charge of murder, just as much as though it were charged in distinct and separate counts.” And it was held that a conviction for manslaughter, upon an indictment for murder, was an acquittal of every offense of a higher grade than manslaughter, embraced in the indictment, and that there could not be another trial for murder; but that, upon the reversal of the judgment for manslaughter, upon the defendant’s appeal, the defendant could be again tried for manslaughter, upon the same indictment in form for murder. These principles were again affirmed in People v. Backus, 5 Cal. 278. Upon the principle of these cases the defendant is acquitted of the higher offense charged, and cannot be again tried for it, so that the case, as to that offense, is wholly ended. He was only convicted of the lower offense embraced in the indictment, and, if the judgment were reversed, he could only be tried for that offense. It, therefore, follows that whatever the case may originally have been, the only case that can now, or hereafter, possibly be before the Court, is the case of a simple assault, and this does not amount to a felony.

Appeal dismissed.

Concurrence — Rhodes

Rhodes, J., concurring specially:

I concur in the judgment.

Concurrence — Sandersonalso

Sanderson, J., also concurring specially:

I concur in the judgment upon the authority of The People v. Cornell, 16 Cal. 187. I am disposed to follow the rule in that case, although I am not entirely satisfied with it. Upon the other questions which are incidentally noticed in the opinion of the Chief Justice, I express no opinion.