People v. Van Os

[205]

McCOMB, J.

After trial before a jury defendant was found guilty of simple assault. From the judgment and order denying his motion for a new trial, he appeals.

The evidence being viewed in the light most favorable to the People (respondent) the essential facts are:

Hable Van Os separated from her husband, defendant, May 3, 1948, and obtained an interlocutory decree of divorce from him. They reunited about December 10, 1948. On the night of December 30, 1948, she went driving with defendant in his car. They purchased some liquor which they consumed, and after a time parked the car and began discussing their domestic problems. Finally defendant told her he was going to leave her. She replied that was best and they had had enough trouble. Defendant then told her to get out of the car which she did, taking her purse with her. As she started walking she heard a ear start up from behind her. Next she heard footsteps, and turned around and saw defendant. He grabbed her from behind, wrestled with her, hit her on the jaw and knocked her to the ground. As she tried to protect herself, he struck her on the head. He then grabbed her purse, ran to his car and drove away.

Defendant was charged with (1) robbery and (2) wife-beating. He Avas found not guilty of the first count, but guilty of simple assault, a lesser and included offense, on the second count.

Questions:

First:

Was there substantial evidence to sustain the foregoing facts impliedly found by the jury in support of the judgment f

This question must be answered in the affirmative. The prosecuting Avitness gave direct testimony as to each of the facts stated above. Therefore there was substantial evidence to sustain the jury’s implied findings. This being the state of the record, an appellate court will neither consider discrepancies in the testimony nor weigh the evidence.

(People

v.

Pianezzi,

42 Cal.App.2d 265, 269 [108 P.2d 732].)