People v. Oppenheimer

In People v. Oppenheimer (1909) 156 Cal. 733, the defendant, who was in prison for life, hit a fellow convict in the head with a sash weight. The defendant then picked up a knife lying nearby. The victim, evidently still conscious, struggled with him; during the struggle, the defendant cut the victim with the knife "in several places . . . ." ( Id., at p. 737.) As a result, he was convicted of assault with a deadly weapon while under a life sentence. ( Id., at p. 736.) The Supreme Court held the prosecutor was not required to elect between an assault with the sash weight and an assault with the knife: "We think it is manifest that there was but a single assault shown by this evidence, even though two weapons were used. The mere fact that two weapons are used does not necessarily show two assaults. If one unlawfully assails another with his two hands, first striking at him with one hand and immediately thereafter with the other, no one would say that there were two offenses. The offense would be the one unlawful attempt, coupled with a present ability, to commit a violent injury upon the other's person, and each effort, made in what constituted only the same attempt to accomplish this result would constitute only a single element of that attempt." ( People v. Oppenheimer, supra, 156 Cal. at p. 740.) "The evidence offered and received in this case tended to show one continuous transaction, one assault in which two weapons were used. It was not, therefore, a case where the evidence offered showed two or more distinct offenses for each of which the defendant might be prosecuted and suffer a conviction . . . ." (Ibid.)