People v. Van Buskirk

[791]

PEEK, J.

This is an appeal by defendant from his conviction of attempted murder and from the order denying his motion for a new trial.

Defendant, his wife and daughter had been living with defendant’s sister and her husband, Mr. and Mrs. Brown. The complaining witness, Brown, had not seen the defendant for approximately two weeks prior to the date of the alleged offense.

After writing a note, which is hereinafter set forth at length, defendant proceeded to the home of his brother-in-law, armed with a 25-caliber Colt antomatic. No one was there on his arrival, but shortly thereafter the Browns and their three children, and Mrs. Van Buskirk and her child, arrived in the Brown car. Defendant was on the front porch when they drove up. Defendant walked over to the left front fender of the car. Brown got out and passed around the front of the ear on the way to help the others out of the ear. Defendant then said to Brown that he ‘ came out to settle it all, ’ ’ that he was “going to kill us all.”

Brown hurried the women and children into the house. When he returned defendant was standing by the left front fender with his right hand in his hip pocket. As Brown approached defendant made á statement to the effect that Brown “could beat the hell out of him, but he had a gun and it was loaded.” Brown attempted to talk him out of his plan to kill all of them but defendant brought the gun out of his pocket, raised it to an angle, apparently pointing over Brown’s head and fired. After the shot was fired defendant pointed the gun directly at Brown who continued to try to talk him out of his plan. Defendant replied he was “an old man, he had lived his life and he didn’t care what happened to him.” He also said he knew the persons in the house were calling the police but “we would all be dead before they got there.” At that moment the sheriff’s car turned the corner. Defendant, noticing this, again stated he was going to kill them all, whereupon he pulled the trigger of the gun, but it failed to fire. He then turned and ran to the side door of the house, trying to gain entrance into the house. Brown, after the misfire, ducked down, using the car as a shield. While standing by the door defendant ejected a shell and put another in the gun and again leveled it at Brown. A short time later the officers found defendant was then hiding in the bushes near the house.