
    JAMES L. BARKER, Respondent, v. THOMAS HOPE, Appellant.
    No. 4384;
    February 1, 1875.
    Assault and Battery — Instructions.—If a Defendant Admits That He Struck the plaintiff with a fence pole, when he is charged with having struck him with a heavy club, the court is not unduly asserting judicial knowledge in instructing the jury that “the defendant admits that he struck the plaintiff substantially as charged.”
    APPEAL from First Judicial District, Santa Barbara County.
    Eugene Fawcett for respondent; Charles E. Huse for appellant.
   McKINSTRY, J.

— We think the first instruction given by the court below is not obnoxious to the criticism to which it is subjected in appellant’s brief. The district court properly asserted judicial knowledge of the fact that a “fence pole” is a “heavy club”; and when the court said, “the defendant admits that he struck the plaintiff substantially as charged, ’ ’ it was a statement of an admission that he struck with a heavy club, and not of the alleged malice accompanying the blow.

Nor do we think the other points made by the appellant are well taken.

Judgment affirmed.

We concur: Crockett, J.; Rhodes, J.  