Opinion
Department One
Appeal from an order of the Superior Court of Alameda County granting a new trial. John Ellsworth, Judge.
COUNSEL:
W. F. Fitzgerald, Attorney General, Charles H. Jackson, Deputy Attorney General, and Charles E. Snook, District Attorney, for Appellant.
W. F. Aram, for Respondent.
JUDGES: Garoutte, J. Van Fleet, J., and Harrison, J., concurred.
OPINION
GAROUTTE, Judge
[41 P. 1028] The defendant was convicted of the crime of sodomy, and his motion for a new trial was subsequently granted. The motion was granted upon the ground that the trial court committed error in not instructing the jury, at the request of the defendant, that, under the evidence, he might be convicted of a simple assault. There is some question made by defendant's counsel that the information charged specifically the offense of assault, in addition to the felony, but, in the absence of a special demurrer upon that ground, we think the matter of little importance.
The offense of simple assault may or may not be an element in the felony designated as sodomy. It is not an element of the offense where the crime is not committed with or upon a human being; and, secondly, it is not an element in the offense where the act is done or attempted with the consent of the other party. It therefore follows that in many cases the trial court is justified in refusing to instruct the jury as was here requested. This case is not one coming within the first class stated, and, as to the evidence of consent, we think it may well have been submitted to the jury as a question of fact. It is further argued that the evidence discloses either a commission of the felony, or establishes that the defendant is wholly innocent. Possibly the evidence might support such conclusion if the prosecution had confined itself to facts occurring at a single time; but, for reasons not here perceptible, evidence was introduced as to circumstances of guilt arising upon two different occasions, and upon different days. The evidence failed to disclose the commission of a felony upon one of these occasions at least, but possibly disclosed a simple assault. By reason of these facts the principle of law presented is enveloped in some confusion. But section 220 of the Penal Code in terms recognizes the offense of assault with intent to commit the crime here charged, and a simple assault is a necessary element in the offense named in said section 220. From all the facts here disclosed we conclude the question of consent was an open one, which should have been presented to the jury; and, also, that the case was such that the question of assault likewise should have been submitted to the jury.
For these reasons the order is affirmed.