People v. Filcher

MUSSELL, J.

Appellant was charged with having assaulted one J. D. Miller with a deadly weapon in Tulare County on or about June 1, 1958. A jury trial resulted in a verdict of finding her guilty as charged. Her application for probation was denied and she was remanded and committed to the custody of the sheriff of Tulare County for the term of six months.

Appellant, Myrtle Emmer Filcher, and her husband owned and operated a café and tavern near Tulare. On-June 1, 1958, at about 8 p.m., one J. D. Miller entered the bar, ordered a beer, took it back to the card room and played poker for about 45 minutes. When he returned to the bar, appellant was seated at a table nearby with Troy Miller, Joanne Miller, Troy Tuggle and Mr., and Mrs. Homer Miller. J. D. Miller bought drinks for all of them and paid for them with a $20 bill. When he had not received his change he asked appellant when he was going to get it and she went to see about it. When she returned

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to the table and started to sit down, someone pulled the chair out from under her and she sat on the floor. Troy Miller helped her up and Homer Miller said it was Troy Miller who had pulled the chair out from under her. Appellant replied, “No, it wasn’t Troy. It was J. D. Miller.” J. D. Miller laughed and said nothing and appellant then said, “That low down son-of-a-bitch pulled the chair out from under me.” Appellant then went behind the bar and picked up a plastic water pitcher, which she threw at J. D. Miller. He ducked out of the way and grinned about it and said, “If you were a man, I would take you outside and work you over.” Appellant then said to the bartender, “Give me the gun and I will shoot him.” She then walked over to a drawer near the cash register, took out a gun which she laid across the bar and aimed at J. D. Miller, ordering him to leave. Miller at that time was standing by a pool table. Troy Tuggle had hold of his right arm and Joanne got between J. D. Miller and appellant and said, “If you want to shoot somebody, shoot me.” J. D. Miller shoved her out of the way and stood leaning up against the pool table with his hands at his side and said, 1 ‘ Go ahead and shoot.” Appellant then pulled the trigger and shot J. D. Miller in the right side. Miller then walked over to a pay phone and called the police department.

At the trial appellant testified that she did not know who pulled the chair out from under her but she thought it was J. D. Miller; that when she went behind the bar to get a drink, Miller followed her on the outside of the bar, using vile language and calling her names; that she asked him to leave several times; that she picked up the gun because Miller made a dash to the bar as if he were coming across it and that she did not intend to kill him when she shot but only to scare him. In her statement to the officers shortly after the shooting, she made no claim that Miller was moving toward her when the shot was fired.