This is an appeal from a judgment and order denying defendant's motion for a new trial.
Defendant was charged with the crime of assault with intent to commit murder. The assault is charged to have been committed with a deadly weapon, and upon his trial the jury found the defendant guilty of assault with a deadly weapon.
The evidence showed that defendant became engaged in a quarrel with one Sobereska, and shot him twice with a pistol. One shot passed through the breast bone, the chest cavity a little above the heart, and lodged in the muscles of the back about three inches from the surface. The other passed completely through the thigh, cutting both a vein and an artery.
The physician who attended the wounded man fully described both wounds, and at the conclusion of his examination concerning the chest wound was permitted by the court, over the objection of the defendant, to answer a question calling for his opinion as to the seriousness of such wound. It is not claimed that the physician was not qualified to speak as an expert, but that the question of the seriousness of the wound had nothing to do with the guilt or innocence of the defendant. In view of the facts testified to and clearly proven, it probably was quite unnecessary to take the opinion of the physician, but the seriousness of the injury actually produced is a pertinent fact to be considered in any case where a defendant is charged with assault with intent to murder.
The court overruled an objection made by defendant to a question by the district attorney on cross-examination of a *Page 275 witness as follows: "Isn't it a fact that you and your brother came to the conclusion it was necessary for you to remember that particular part of the conversation which you claim you had with Mr. Fahey on that occasion?"
The objection to this question should have been sustained in the form at least in which it was put, as it called for the opinion of the witness as to the conclusion of his brother, but the answer to the question was not responsive, and was entirely harmless. It was, "I think I have mentioned it." No motion to strike out the answer was made, and the question ruled on was not in fact answered at all. It would be a farce to order a new trial for such a trifle.
A complaint was filed charging defendant with murder. While the person who swore to this complaint was being examined on cross-examination by defendant's counsel regarding this complaint, the district attorney lodged an objection to a question, and in doing so made a statement to the effect that the first information brought to the county seat was that the assaulted man had been killed by defendant, and that he, the district attorney, had first prepared a complaint for murder, and subsequently dismissed it, and prepared a new one charging him with assault to commit murder, and procured the witness to swear to it. The court overruled the objection of the district attorney, and very properly told the jury that the statement of the district attorney was not evidence, and at once instructed the jury not to consider it.
The statements made by the district attorney were in explanation of his own conduct as well as that of the witness in relation to the filing of a complaint for murder in the first instance and the delay in dismissing it. While it should not have been made, it apparently was made in good faith in support of the objection to the question. Certainly it is not such a case of willful or injurious misconduct as to require a new trial, in view of the prompt action of the court, both in striking out the statement of the district attorney and instructing the jury as to its duty, and in requiring the witness to answer the question put by defendant's attorney.
No other rulings are complained of on appeal from the order denying the motion for a new trial.
The court, however, besides imposing imprisonment for fifteen months, imposed a fine, with additional imprisonment in *Page 276 default of payment of the fine. The part of the judgment imposing imprisonment in default of payment of the fine is void. (People v. Brown, 113 Cal. 35, [45 P. 181], and cases there cited.) This court is not required, however, to reverse the entire judgment, but the proper course is to require the void portion of the judgment to be stricken out. (People v.Hamberg, 84 Cal. 468, [24 P. 298].)
The order denying the motion for a new trial is affirmed. The court below is instructed to modify the judgment by striking out the part thereof as follows: "And that in default of payment of said fine that he be imprisoned in the county jail of the county of Contra Costa one day for each two dollars of said fine not paid. Said imprisonment to commence at the expiration of the term of imprisonment of fifteen months herein imposed."
In all other respects the judgment is affirmed.
Kerrigan, J., and Lennon, P. J., concurred.