Both defendant and victim who was inmate were in prison. Defendant joined several prisoners who have been assaulting victim. The latter was stabbed four times by other offenders and yet the defendant has thrown him over the railing. A drop of about thirteen feet to the waiting concrete floor caused death of victim. Defendant’s bodily contact with the victim has been taken as a ground for criminal liability according to assault statute of the State of California.
The case was brought to the U.S Court of Appeal for the Ninth Circuit. Defendant’s conviction under the Penal code of CA and the federal assault statute was reversed.
“The federal assault statute, 18 U.S.C.S § 113, defines and punishes seven forms of assault: (1) assault with intent to commit murder, (2) assault with intent to commit any felony except murder, (3) assault with a dangerous weapon, (4) assault by striking, beating, or wounding, (5) simple assault, (6) assault resulting in serious bodily injury, and (7) assault resulting in substantial bodily injury to a person under the age of 16. … Because § 113 does not define assault, courts have adopted the common law definitions: (1) a willful attempt to inflict injury upon the person of another, or (2) a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.”
Defendant appealed against conviction made by the U.S. District Court for the CD of California. Conviction was based on Penal Code of California § 245 (assault committed by means of force, i.e. dangerous weapon, likely to produce great bodily injury). The second issue was whether defendant’s act or omission made punishable by any enactment of Congress, including Assimilated Crimes Act.
The Court has noted that the Assimilated Crimes Act is not applicable if both state and federal law prescribe criminal liability for the same wrongful behavior as per definition.
“The federal assault statute, 18 U.S.C.S § 113 a (1), (3), (4), punishes assault with intent to commit murder, assault with a dangerous weapon, with intent to do bodily harm, and assault by striking, beating, or wounding. … federal assault statute precludes application of California Penal Code § 245 and that the evidence presented to the jury that Rocha [defendant] used his bare hands to perpetrate the assault cannot support a conviction under the federal assault statute for assault with a dangerous weapon.”