People v. Womble

SHINN, J.

Defendant appeals from a judgment following a verdict of guilt in a prosecution for assault with a deadly weapon, a .32 automatic pistol, upon the person of one Robert J. Breese. Upon his appeal he challenges the sufficiency of the evidence to establish guilt and complains of error in instructions that were given and in the refusal of an instruction. It is claimed by defendant that there was not sufficient evidence to prove that the gun was loaded at the time of the alleged assault or that it was used in the assault.

Defendant was the proprietor of a cafe located on the highway several miles out of Oxnard. Robert J. Breese, a seaman first-class, and Harold H. Brooks, a coxswain, who were stationed at Port Hueneme, being on liberty, entered the bar of defendant’s cafe about 6 o’clock in the evening. Defendant’s wife and two others were seated there, a bartender was behind the bar, and a waitress entered the room and served Breese and Brooks a drink of whiskey. Defendant

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entered the bar shortly afterward and the evidence was that he was under the influence of liquor. Learning that it was Mrs. Womble’s birthday, Breese and Brooks asked her if she wished a drink, which she, already having one, declined. The evidence of the prosecution disclosed that defendant objected to the presence of Brooks’ car outside the cafe, saying that it added nothing to the looks of the place, which Brooks admitted. Defendant said that he didn’t like sailors patronizing his place, that “They come in and spend a buck and á half and expect to have a good time, ’ ’ and Brooks said that he “was probably used to a lot more money” than defendant was and had “poured more money down rat holes than defendant had ever had.” Defendant ordered Breese and Brooks out of the cafe and as they started to leave the place defendant said, “Don’t rush off, I will take care of both of you boys,” and started toward a room in the rear. As Breese left the place he was struck in the back with a padlock which had been thrown at him. He turned around when he was six or seven feet outside the building and defendant was then rushing toward him pulling a gun from his pocket. Breese grabbed defendant’s right hand, in which the gun was held, shoved it down and called to Brooks to grab the gun; it was taken from defendant’s hand by a Mr. Helms, a patron of the place. As to the manner in which the gun was handled by defendant, Breese testified that the gun was in defendant’s right hand, “he was pulling it up this way (illustrating) and I jumped him and I pinned his hand down—he was bringing the gun up—when I first saw it the gun was coming up—it was not pointed directly at me but he was bringing it up about right in there (illustrating) when I first saw it. That is when I jumped him.” There was testimony that Breese and Brooks were not under the- influence of liquor, although Breese testified that he had taken one drink and Brooks that he had taken two. before they came to defendant’s cafe. When ques-: tioned by the officers shortly after the. occurrence, defendant denied that he had had or used the gun in. the affair but when Mr. Helms told of taking the gun from defendant he admitted having had it and stated it had fallen from his pocket. The gun was turned over to the officers by Helms three hours after the occurrence, the safety was off at that time and the gun was loaded with a full clip and a shell in the chamber. To the officers defendant stated that Breese and Brooks had insulted his wife, a woman friend and a waitress and had.