People v. Yancy

MUSSELL, J.

Appellant James Walter White, James Franklin Yancy and Richard Jackson were jointly charged with the crime of assault by means of force likely to produce great bodily injury (Pen. Code, §245). In a second count of the information they were charged with the crime of rescue in violation of Penal Code, section 4550, in that they unlawfully rescued one Leon Atkins, who was then a prisoner in the lawful custody of one Richard L. Eckert. It was also

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alleged that appellant had been previously convicted of a felony. Appellant pleaded not guilty to the charges and admitted the prior conviction. He was tried jointly with two other defendants and a jury returned verdicts finding Jackson not guilty on both counts, Yancy guilty of assault by means of force likely to produce great bodily injury and of the crime of rescue as charged. Appellant was found guilty as charged in count one of the information and not guilty as charged in count two. His application for probation and his motion for new trial were denied and he was sentenced to imprisonment in the state prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial, claiming that the evidence was insufficient to sustain his conviction and that the court erred in refusing to give his requested instruction as to the lesser offense of simple assault.

On May 2, 1958, at about 11 p. m., Eichard L. Eckert, a policeman in the San Diego Police Department, went to a parking lot in San Diego and was asked by a store owner to help him clear the lot of certain parked cars. The officer asked one David Atkins for his driver’s license and after handing it to the officer, Atkins snatched it back and fled. The officer was unable to catch him and returned to the lot, where he noticed two fellows scuffling and one of them was using foul language. One of these (Leon Atkins) was placed under arrest for disorderly conduct and the officer put a “neck lock” on him when he tried to get away. At that time Officer Williams joined Eckert and they started for the police car. A mixed crowd, most of them under the age of 25 years, grouped around the officers and they were therefore unable to move toward the car. Williams went to the patrol car and summoned assistance and, while he was gone, someone in the crowd said, “That is my cousin, let him go.” Immediately thereafter Officer Eckert was struck on the left side of his head and stunned. He was again hit and both he and Atkins, whom the officer was holding by the neck, fell down together. Eckert then felt “a couple more” blows to his head and got up with Atkins still in his grip. Atkins said, “Well, I have had enough,” whereupon he was released. When Eckert turned to see who had been hitting him, he was struck again in the face and knocked down. While on the ground he felt a number of sharp blows. The crowd then scattered. When Officer Williams returned from the patrol ear he observed Eckert’s clothes were dirty and “messed up” and that there