People v. Simeone

MOORE, P. J.

Having been convicted of assault with a deadly weapon and of assault by means of force likely to produce great bodily injury (Pen. Code, § 245), appellant seeks a reversal on the grounds of errors in rulings, prejudicial remarks of the court and of the district attorney, and in denial of the right to counsel. No claim is made that the

[594]

evidence was insufficient to support the judgment, although it is charged that the testimony of the prosecutrix was so “biased” that its admission is prejudicial error.

It appears that appellant and his wife had experienced some unhappiness and he had absented himself from home. When they met on the street, she refused his offer to escort her home, but when she arrived, there he was waiting. He tried to persuade her to permit him to return to the apartment. When she firmly denied his offer, he .said: “For the last time, and I want a straight answer from you, am I moving in or not.” Her answer was: “You are not.” To that he replied: “Then you give me no choice.” He thereupon took a small knife from his suitcase and followed his frightened wife into her bedroom and said: “I am going to kill you.” While their daughter, Christina, remonstrated, he raised his hand and approached the mother with the knife pointed towards her face. In the scuffle, the knife first cut her wrist and then cut his finger. The second interference of Christina enabled Mrs. Simeone to escape and run away. She returned with the police who took appellant to the station.

On the following afternoon, May 14, appellant returned to his wife’s apartment and sat for two hours; told her that if he did not move in he would “fix her good.” When he departed, he said: “I am going now, but I’m coming back; you had better think this thing over; if [you] don’t—when I come back and you don’t talk tough, I can’t stay here, I am going to kill you; you’re my wife ... if I can’t have you, nobody else will have you.”

Appellant continued to visit his wife each night about 9 o’clock and remained until the police came. On at least one occasion he beat her head and jaw and caused her to faint and her children to plead with him to leave. On the morning of May 24 he met her on the way to work and said: “Look, you can go to work but before you go I want you to remember one thing, I’ve thought'this all over very carefully. I am going to give you four days to think this thing over. Either I move in within that time or I’m going to kill you.” True to his threat, he returned on May 28. When she opened the door slightly, he pushed it open against her, and struck her face with a large package of ice cream. When she attempted to escape, he grabbed her and pulled her towards the balcony, forced her back over the railing and as she resisted, he kept repeating: “I’m going to kill you! I told you I was and this is it! I’m going to give it to you!” The woman’s screams brought her daughter and a Mr. Tate.