
    [Crim. No. 2864.
    In Bank.
    July 1, 1926.]
    THE PEOPLE, Respondent, v. GRACE BERNICE DAY, Appellant.
    
       Criminal Law — Throwing of Acid — Indictment fob Two Offenses—Acquittal on One Count.—Where an indictment arising out of a nitric acid throwing incident is in two counts, one charging an assault with a caustic chemical in violation of section 244 of the Penal Code and the other charging an assault with a means or force likely to produce great bodily injury in violation of section 245 of said code, the acquittal of the defendant of the offense charged in the second count will not operate as an acquittal of the defendant of the offense charged in the first count.
    
       Id—Different Offenses—Essential Elements—Pleading—Acquittal.—If the statute describing one offense prescribes as an essential element the statement of a fact not prescribed by the statute describing the other offense, and if in the statement of the transaction in two different counts that fact is included in the statement of the transaction based upon the statute requiring it and omitted in the statement of the transaction based upon the statute not requiring it, the verdict of acquittal upon one of the counts is not necessarily an acquittal upon the other, as in such a situation the jury may well find that the fact required as an essential element of one of the offenses is not true and therefore be required to render a verdict of acquittal upon that count, but, since that fact is not an essential element to constitute the other offense, be justified in rendering a verdict of guilty as to that count.
    
       Id. — Pleading — Preamble — Surplusage.—Where an indictment arising out of a nitric acid throwing incident is in two counts, one charging an assault with a caustic chemical in violation of section 244 of the Penal Code and the other charging an assault with a means or force likely to produce great, bodily injury in violation of section 245 of said code, and the preamble to the second count states that this count is a statement of the same offense as that set out in count one, it is apparent that what is meant is that the second count is a statement of the same transaction, and such statement may be disregarded as mere surplusage.
    
       Id.—Assault With Caustic Chemical—Assault With Means Likely to Produce Bodily Harm—Distinguishing Elements.—The elements requisite for a conviction under section 244 of the Penal Code are not identical with the elements required under section 245 of said codé, as, for example, section. 244 requires proof of the fact that the acid actually touched the person of another, whereas no proof is required by section 245 that the means or force likely to produce great bodily injury was actually exerted against the person of another; and, under section 244 the defendant cannot be found guilty of the offense charged if the attempt to throw or place acid upon the person of another failed of fruition, while under section 245 the defendant would be guilty although the assault was not actually consummated, provided the means or force used was likely to produce great bodily injury.
    
      2. Single act constituting two independent offenses, note, 58 Am. Dec. 540. See, also, 7 Cal. Jur. 956; 8 R. C. L. 148.
    
      
       Id.—Throwing op Acids—Producing Bodily Harm-—Intent.— While it may sometimes happen that the throwing of the acids described by section 244 of the Penal Code would have the result of producing great bodily injury, the fact that it does so, or even that it will have the properties of doing so, is not required by said section, but the crime is complete if any quantity of acid so described, however small, or weak, or incapable of producing great bodily harm, is thrown or placed upon the person of another, if done wilfully and maliciously with the intent to injure the flesh or to disfigure to the slightest extent the body of another.
    
       Id.—Assault With Means or Force Likely to Produce Bodily Harm-—Pleading.—In this prosecution under an indictment in two counts, the first charging an assault with a caustic chemical in violation of section 244 of the Penal -Code and the second charging an assault with a means or force likely to produce great bodily injury in violation of section 245 of the said code, in0tho second count in order to aver that the means and force was likely to produce great bodily harm it was necessary not only to allege that the means and force was likely to produce great bodily harm but it was necessary to aver additional fact to substantiate this conclusion, and the pleader did this by averring that as a result of the means and force used the complaining witness did suffer great bodily harm.
    
       Id.—Ability to Commit Crime—Mental and Moral Age op Dependant.—In this prosecution under an indictment arising out of an acid throwing incident, the trial court did not err in denying defendant’s motion for a new trial based upon affidavits filed after the trial of the case to the effect generally that the mental and moral age of the defendant was that of a child under the age of fourteen years, as subdivision 1 of section 26 of the Penal Code refers to the physical age of a clvild and has no reference to tho mental or moral age of an adult.
    
    
      5. See 3 Cal. Jur. 207.
    7. Criminal responsibility of infants, note, 26 Am, Hep, 100. See, also, 14 Cal. Jur. 135; 14 R. O. L. 264.
    
      
       Id.—Testimony Before Grand Jury—Death of Witness—Cumulative Evidence.—In such prosecution, the error, if any, in permitting in evidence the testimony of a "witness (who had died ■previous to the trial) taken before the grand jury, was not sufficient to warrant a reversal, where his testimony referred solely to the picking up of the bottle and cork and was merely cumulative of evidence of other witnesses, and the defense was predicated solely upon the contention that the acid was accidentally splashed upon her husband and not upon a denial that she had a bottle of nitric acid with her at the time and place charged.
    
       Id.—Accidental Acts—Attempt to Commit Suicide—Issues— Instructions.—In such prosecution, the real issue before the lower court having been whether the alleged acts as outlined in the indictment were accidentally done, and not whether they were done in an attempt to commit suicide, and the court having instructed the jury that the defendant claimed that the acid was accidentally spilled and that she had no intention of using it upon the person of her husband, and if they found from the evidence that this was true they must acquit the defendant, or if after due consideration of all the testimony they were not convinced of the guilt of the defendant beyond a reasonable doubt and to a moral certainty they must acquit her, it was not error to refuse defendant’s requested instruction “that suicide or an attempt to take one’s own life is not a crime in California. If you find that the defendant . . . spilled the acid accidentally while endeavoring to open the bottle for the purpose of enabling her to take the acid and destroy herself you shall acquit the defendant of the crime or offense charged in the indictment.”
    (1) 16 C. J., p. 1106, n. 16 New. (2) 16 C. J., p. 271, n. 9, p. 1106, n. 16 New. (3) 31 C. J., p. 747, n. 24, p. 749, n. 45. (4) 5 C. J., p. 726, n. 98, p. 728, n. 43. (5) 5 C. X, p. 728, n. 43. (6) 5 C. X, p. 768, n. 26 New. (7) 31 C. X, p. 1094, n. 87. (8) 17 O. X, p. 318, n. 13. (9) 16 C. J., p. 1063, n. 85.
    9. Attempted suicide as crime, notes, 7 L. R. A (N. S.) 286; 8 Ann. Gas. 354. See, also, 13 R, O. L. 722.
    APPEAL from a judgment of the Superior Court of Los Angeles County. Carlos S. Hardy, Judge. Affirmed.
    The facts are stated in the opinion of the court.
    Max Lewis and Anderson & Anderson for Appellant.
    
      U. S. Webb, Attorney-General, Erwin W. Widney, Deputy Attorney-General, Asa Keyes, District Attorney, and Tracy C. Becker, Deputy District Attorney, for Respondent.
   LENNON, J.

The indictment contained two counts. The first count accused the defendant, Grace Bernice Day, of the crime of assault with a caustic chemical, a felony, committed as follows: “ ... on or about the 23rd day of February, 1925, at and in the . . . County of Los Angeles, State of California, the said defendants, Grace Bernice Day and Carlyn Lundstrom did wilfully, unlawfully, maliciously and feloniously place and throw upon the person of another, to-wit, one Darby Day, the younger of that name, a human being, a certain corrosive acid and caustic chemical, to-wit: nitric acid, with the felonious intent then and there and thereby to injure the flesh and disfigure the body and person of the said Darby Day. ’ ’

Count two charged as follows: “For a further and separate cause of action, being a different statement of the same offense as that set forth in Count I hereof, the said Grace Bernice Day and Carlyn Lundstrom . . . did then and there wilfully, unlawfully, violently and feloniously place and throw a certain corrosive acid and caustic chemical, to-wit: nitric acid, upon the head, body and person of one Darby Day, the younger of that name, a human being, which said throwing and placing of said acid upon the person of the said Darby Day, as aforesaid, did then and there cause grievous and serious and permanent bodily injuries to the said Darby Day, and was then and there exerted against the said Darby Day by the said defendants by means likely to, and which did, produce great bodily injury to the said Darby Day. ’ ’

The following verdicts were brought in by the jury: “We, the Jury in the above entitled action, find the Defendant Grace Bernice Day guilty of Assault with a Caustic Chemical, a felony as charged in Count No. 1 . . . ” and “We, the Jury in the above-entitled action, find the Defendant Grace Bernice Day not guilty as charged in Count No. 2 of the Indictment. ’ ’ Carlyn Lundstrom was acquitted by the jury under both counts of the indictment. The defendant was sentenced to San Quentin for the term prescribed by law for the crime of assault with a caustic chemical.

The appeal is from the judgment and from the order denying defendant’s motion for a new trial.

The evidence is sufficient to sustain a verdict of guilty on the first count of the indictment. It was defendant’s defense that she had purchased the nitric acid in question for the purpose of committing suicide; that while she and her husband were seated in an automobile in front of his home, she uncorked the bottle preparatory to taking the acid; that her husband started the car abruptly and by so doing caused the acid to be splashed both on himself and on her. It is admitted by the defendant that the bottle of nitric acid was in her hand at the time it was splashed or thrown upon her husband. The trial of the case therefore resolved itself into the question of whether the acid was accidentally splashed upon Darby Day or whether it was maliciously thrown upon him by his wife “with the intent to injure or disfigure the body and flesh” of said Darby Day. It will suffice to say that in addition to the direct testimony of Darby Day there was introduced in evidence testimony of circumstances attending and surrounding the occurrence tending to substantiate the theory of the prosecution that the acid was maliciously thrown. There is the outstanding and uneontra-, dieted fact that after the occurrence the defendant immediately jumped into the waiting automobile driven by her sister, without stopping to see whether or not her husband had been seriously injured. This fact is scarcely compatible with the theory that the acid was accidentally thrown. There is also in evidence the fact that the defendant was familiar with the properties of veronal and the fact that if taken in large quantities this drug would cause death. It is scarcely conceivable that the defendant would have selected nitric acid as a method of committing suicide when she had at her command the means of committing suicide in a much less painful manner.

The claim is made by the defendant that by the verdict of acquittal on count two, she was acquitted of the offense charged in count one. This claim is predicated upon the theory that there is such a complete identity of the offenses charged in the two counts of the indictment that an acquittal of one offense will operate as a bar to a conviction of the other offense.

It may be conceded that if the two counts stated precisely the same offense that an acquittal upon one count would operate as an acquittal upon the other count. If, however, the statute describing one offense prescribes as an essential element the statement of a fact not prescribed by the statute describing the other offense, and if in the statement of the transaction in the different counts, that fact is included in the statement of the transaction based upon the statute requiring" it, and omitted in the statement of the transaction based upon the statute not requiring it, the verdict jof acquittal upon one of the counts is not necessarily an •acquittal upon the other. In such a situation the jury may ¡well find that the fact required as an essential element of ,one of the offenses is not true and therefore be required to render a verdict of acquittal upon that count, but, since that fact is not an essential element to constitute the other offense, be justified in rendering a verdict of guilty as to that count. 'It is not the great similarity in most of the facts constituting separate offenses but the presence of a fact necessary in one ' offense and absent in another that determines whether offenses are separate. (Murphy v. United States, 285 Fed. 801, 814; Gavieres v. United States, 220 U. S. 338, 342 [55 L. Ed. 489, 31 Sup. Ct. Rep. 421, see, also, Rose’s U. S. Notes]; Morey v. Commonwealth, 108 Mass. 433.)

This is the test used to determine the validity of a plea of once in jeopardy interposed to a subsequent indictment after an acquittal or conviction upon one indictment. Of course, no plea of twice in jeopardy or former acquittal was or could have been made by the defendant in this action inasmuch as she was tried but once. It should be noted, however, that all of the rules applicable to a plea of once in jeopardy do not have application to a determination of whether the offenses stated in different counts of an indictment are identical. Thus the rule, applicable to jeopardy, that an acquittal of a higher offense necessarily involves an acquittal of a lesser offense included therein, and that thereafter the defendant cannot be tried for another higher offense 'involving therein the same lesser offense, has no application to a situation where the two higher offenses are presented to the jury in alternative counts. (People v. McDaniels, 137 Cal. 192 [92 Am. St. Rep. 81, 59 L. R. A. 578, 69 Pac. 1006]; People v. Defoor, 100 Cal. 150 [34 Pac. 642].) If an accused is acquitted after a trial upon an indictment containing but one count, the jury necessarily found that the elements composing a lesser offense included within the higher offense charged were absent, for otherwise it would have been their duty to convict the defendant of the lesser offense. However, if a defendant is acquitted upon one count of an indictment containing alternative counts, it does not follow that the jury found all of the elements essential to the offense stated in that count absent but merely that they found absent the element or elements distinguishing the offense stated in that count from the offense stated in the alternative count.

Originally section 954 of the Penal Code did not permit the inclusion in one indictment or information of two or more different offenses even if they were connected together in their commission and arose out of the same transaction. In 1915 it was amended to read as follows: “The indictment or information may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . ” The evident purpose of this amendment was to widen the latitude permitted a prosecuting attorney in setting out the different offenses, which, in his opinion, the evidence before him at the time of drawing the indictment or information, showed had been committed. To hold that when two alternative counts are presented to the jury, an acquittal of a higher offense stated in one count, necessarily involves an acquittal of the lesser offense included therein and is a bar to the conviction of the higher offense set out in the alternative count, would practically nullify the beneficial object of the amendment. The true test as previously indicated is the presence of a fact necessary in one offense and absent in another.

An application of this test to the pleadings here involved convinces us that the offenses are not completely identical and that the jury may well have acquitted the defendant of the crime charged in the second count although at the same time finding her guilty of the crime charged in the first count.

Despite the fact that the preamble to the second count states that this count is a statement of the same offense as that set out in count one, it is apparent that what was meant was that the second count was a statement of the same transaction. The statement may therefore be disregarded as mere surplusage. (People v. Evanoff; 45 Cal. App. 108 [187 Pac. 54].)

Clearly two separate and distinct offenses described and designated by different code sections were attempted to be stated by the separate counts of the indictment. The two counts were obviously based upon separate sections of the Penal Code defining different offenses. In count one the defendant was charged with the crime of assault with a caustic chemical. In count two the crime is designated as assault by means and force likely to produce great bodily harm. Section 244 of the Penal Code, the basis of the first count, reads as follows:

“Every person who wilfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. ’ ’

Section 245 of the Penal Code, the basis of the second count, reads as follows:

“Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable by imprisonment in the state prison, or in a county jail, not exceeding ten years, or by fine not exceeding five thousand dollars, or by both.”

An analysis of the two code sections used as the basis for the two counts demonstrates that the elements requisite for a conviction under section 244 of the Penal Code are not identical with the elements required under section 245. Section 244 requires proof of the fact that the acid actually touched the person of another. No proof is required by section 245 that the means or force likely to produce great bodily injury was actually exerted against the person of another. Under section 244 the defendant could not be found guilty of the specific offense if the attempt to throw or place acid upon the person of another failed of fruition. Under section 245 the defendant would be guilty although the assault was not actually consummated. By section 245 proof is required that the means or force used must be likely to produce great bodily injury. While it may oftentimes happen that the throwing of the acids described by section 244 of the Penal Code would have the result of producing great bodily injury, the fact that it does so, or even that it will have the properties of doing so, is not required by said section. The crime is complete if any quantity of acid so described, however small in quantity or however weak in strength and however incapable of producing great bodily harm, is thrown or placed upon the person of another, if done wilfully and maliciously with the intent to injure the flesh or to disfigure to the slightest extent the body of another. It is apparent, therefore, that the two crimes as designated and described by the two sections of the Penal Code are separate and distinct offenses although they may well arise out of the same transaction.

An examination of the statement of the offenses charged in the two counts discloses the fact that the differentiation made in the two offenses by the two code sections has been made by the indictment in at least one respect and this is sufficient to support the conclusion that the offenses are not identical. The prosecutor in drafting the first count of the indictment followed closely the language of section 244 of the Penal Code and stated the offense in almost the identical language of the code section. In the second count, in order to aver that the means and force was likely to produce great bodily harm it was necessary not only to allege that the means and force was likely to produce great bodily harm but it was necessary to aver additional facts to substantiate this conclusion. The pleader did this by averring that as a result of the means and force used, the complaining witness did suffer great bodily harm. Herein lies the distinction between the first and second count. To find the defendant guilty under the first count it was immaterial whether the victim did or did not suffer great bodily harm or whether the acid thrown had the property of causing great bodily harm. To find the defendant guilty under the second count it was necessary to find that the means and force used was likely to produce great bodily harm. In other words, if the jury believed that the acid thrown was not a means or force likely to produce great bodily harm, it was at'liberty to acquit upon the second count and convict upon the first count. It is immaterial that the evidence may show that as a matter of fact the acid was means likely to produce great bodily harm and that as a matter of fact the victim did suffer great bodily harm. The determination of this fact was for the jury. (Carrignan v. United States, 290 Fed. 189, 190.)

The court did not err in denying the defendant’s motion for a new trial based upon affidavits filed after the trial of the ease to the effect generally that the mental and moral age of the defendant was that of a child under the age of fourteen years. Section 26 of the Penal Code, subdivision 1, is not susceptible of the constrained construction contended for by the defendant. Said section reads as follows: “All persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of fourteen, in the absence of clear proof' that at the time of committing the act charged against them, they knew its wrongfulness. ...” Said section clearly refers to the physical age of a child and has no reference to the mental or moral age of an adult.

The error, if any, in the permitting in evidence the testimony of Jesse Farr, who had died previous to the trial, taken before the grand jury, is not sufficient to warrant a reversal. His testimony, incorporated in the stenographic report of the proceedings before the grand jury referred solely to the picking up of the bottle and cork and was merely cumulative of evidence of other witnesses. Furthermore, defendant’s defense was predicated solely upon the position that the acid was accidentally splashed upon her husband and not upon a denial that she had a bottle of nitric acid with her at the time and place charged. It cannot be said, therefore, that she was prejudiced by the introduction of this testimony.

No error was committed by the trial court in refusing the instruction requested by the defendant that “The court instructs the jury that suicide or an attempt to take one’s own life is not a crime in California. If you find that the defendant Bernice Day spilled the acid accidentally while endeavoring to open the bottle for the purpose of enabling her to take the acid and destroy herself you shall acquit the defendant of the crime or offense charged in the indictment.” The real issue in the lower court was not whether the alleged acts as outlined in the indictment were done in an attempt to commit suicide but whether they were accidentally done. If done accidentally it was immaterial whether done pursuant to a plan to commit suicide or for any other reason. The instruction requested was, therefore, sufficiently covered by the following instruction given by the trial court: “The defendant Grace Bernice Day claims that the acid was spilled accidentally and that she had no intention of using it upon the person of her husband, Darby Day, Jr. If you find from the evidence that this is true you must acquit the defendants, or if after due consideration of all the testimony you are not convinced of the guilt of the defendants beyond a reasonable doubt and to a moral certainty you must acquit them.” .

The judgment is affirmed.

Richards, J., Shenk, J., and Finlayson, J., pro tem., concurred.

Mr. Justice Curtis, deeming himself disqualified, did not participate in the foregoing opinion.

SEAWELL, J., Concurring.

I am in disagreement with the construction placed upon section 244, Penal Code, by the prevailing opinion, wherein it is said:

“While it may oftentimes happen that the throwing of the acids described by section 244 of the Penal Code would have the result of producing great bodily injury, the fact that it does so, or even that it will have the properties of doing so, is not required by said section. The crime is complete if any quantity of acid so described, however small in quantity or however weak in strength and however incapable of producing great bodily harm, is thrown or placed upon the person of another, if done wilfully and maliciously with the. intent to injure the flesh or to disfigure to the slightest extent the body of another.”

The section thus construed reads:

“Section 244. [Assaults with caustic chemicals.] Every person who wilfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years.”

The purpose of said section is too evident to require discussion. It was clearly enacted to deter wicked and viciously disposed persons from injuring the flesh or disfiguring the body of a human being by the use of acids of any kind which contain caustic or corrosive properties sufficiently strong to accomplish the purpose of the person who throws them or causes them to be placed upon the body of another with the intent mentioned in said code section. Caustic chemicals are thus defined by Webster’s New International Dictionary: “1. Capable of destroying the texture of anything or eating away its substance by chemical action; burning; corrosive.” Vitriol and corrosive acids are known to possess properties similar to, if not identical with those of caustic chemicals. The section is aimed at such chemicals as do harm to the human flesh, and is not directed against an adulteration, as the opinion holds, so weakened as to be utterly harmless. Society has suffered neither danger, damage nor annoyance by the vicious throwing of harmless adulterations upon its citizens, but it has been outraged by the throwing of vitriols, corrosive adds and caustic chemicals upon its citizens. Therefore we must conclude that the legislature by the enactment of section 244 was moved by a sense of legislative accomplishment and was not wandering in a mere vacuity of purposelessness.

The crime consists in throwing upon the person of another any kind of vitriol, etc., that would ordinarily disfigure the flesh by burning by chemical action and there is nothing either in its language nor in the reason for the legislation that can justify the inference that an adulteration containing any quantity of said acids, however infinitesimal, impotent, or harmless said adulteration may be, was intended to supply the ingredients of the crime. The throwing of “any vitriol, corrosive acid,” etc., means vitriol and acids which contain the essential properties that characterize them as capable of doing the damage specifically mentioned in the statute.

It is an axiom of criminal law that a naked intent is not sufficient to constitute a criminal offense, however wicked the design of the accused may be.

To constitute the crime defined by said section 244, supra, there must be an accompanying overt act, intent and the ability upon the part of the person accused to accomplish the act defined by statute. Had the appellant mistaken a vial of water for a vial of vitriol and thrown it upon the person intended to be injured, the crime described by said section 244 would not have been made out. Neither would it have been made out if the proof showed that a mere drop of vitriol, or any one of the other acids named in the statute, had been placed in a gallon of water and thus diluted to a degree that it was absolutely harmless to human flesh. If such had been the case the ability to commit the offense was totally lacking, notwithstanding the evil intent.

Vitriol or caustic chemicals depend for their characterization upon the strength of the chief ingredients which enable them to fulfill their offices. When they lack such strength and are reduced to a state of harmlessness they have lost their main characteristic.

The language of the opinion specifically referred to herein is not only obiter, in my opinion, but it is not a correct statement of the law. The latter reason has prompted my dissent from that portion of the opinion above reviewed.

I concur in the conclusion, however.

Waste, C. J., concurred.

Rehearing denied.  