People v. Cordero

PETERS, P. J.

The defendant was charged, by an information, with an assault with a deadly weapon upon Albert C. Durand, and with two prior convictions. He admitted the two priors, and pleaded not guilty to the main charge. He was found guilty by a jury, and from the judgment entered upon the verdict prosecutes this appeal.

There is no doubt but that the evidence shows that defendant assaulted Durand, the basic question on this appeal being whether the evidence sustains the finding that a deadly weapon was used in such assault.

The assault occurred between 10:30 and 11 p. m. on May 19, 1948. Durand is a merchant seaman, and he had just returned to this port on that day. Early in the evening he and his wife, Viola, visited several bars where Durand, over a period of several hours, drank about six bottles of beer, and his wife consumed about three or four. Shortly after 10 p. m. they started home, but decided to drop in at Johnson’s Restaurant located on Folsom Street near their residence, and have another bottle of beer. They arrived at the restaurant, which sells no hard liquor, at about 10:30 p. m., and seated themselves at the bar and ordered some beer. Both testified that neither was drunk nor adversely affected by the beer they had consumed, but defendant testified that, while Durand was not drunk, Viola was under the influence of liquor.

Defendant, then on parole, had arrived at the restaurant about an hour before the Durands, and before their arrival had consumed two bottles of beer. He was sober. When the Durands arrived, in addition to the defendant, the other persons in the restaurant were the proprietor Johnson, a waitress and her daughter, and apparently an unidentified customer. Durand testified that Viola went over to play the music box ; that defendant accosted her, and began to talk to her in very “rough” language; that he, Durand, walked over to defendant and protested, and turned back to the bar; that thereupon defendant jumped on him from behind, and, with his fists, knocked him to the floor; that his eye and lip were cut from the blows; that Viola helped him up and assisted him to the front door, when he was again hit from behind and knocked unconscious. He was positive, as was his wife, that at no time did he strike defendant. His leg was broken in two places

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