People v. Score

MOORE, P. J.

Defendant was accused by information of two felonies, attempted grand theft (count I) and assault by means of force likely to produce great bodily injury (count II). Tried by the court without a jury, he was acquitted of the first count but was found guilty as charged in the second. His application for probation having been denied, he was sentenced to the state prison for the term prescribed by law. From the judgment entered September 11, 1941, defendant takes this appeal.

One Louis Lepter, accompanied by his friend Mrs. A dele Fritzel, parked his black Plymouth coupé on Vine Street near the intersection with Franklin Avenue in Hollywood at about 10:45 o’clock on the evening of April 26, 1941. Upon his return about 11:15 p. m. he found defendant sitting in his car behind the wheel with the right door open and the vent of the cowl pried open. Defendant was searching the glove compartment and going through the papers belonging to Lepter. Lepter requested defendant to leave the car and attempted to hold him when defendant struck at him with his clenched fist, hit him in the face and knocked off his glasses. Defendant then ran about a block with

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Lepter yelling and trying to hold on to him during which defendant struck him twice with his fists in the chest and face. During the scuffle both went down on the ground, defendant falling on top of Lepter whose leg was doubled up under him as a result of which Lepter suffered a broken tibia and a broken ankle. . Lepter shouted to passers-by to catch defendant and they succeeded in doing so. Defendant was held until the arrival of the police who had been called by Mrs. Fritzel.

It is contended by appellant that his striking of Lepter with his fist was not in a manner to, nor did it, produce great bodily injury; that there was no unlawful attempt to commit an assault and no present ability to commit a serious injury; that pursuing appellant and trying to hold on to him was the sole cause of complainant’s injuries; that there was no legal justification for Lepter’s holding appellant; that no force was directed toward the breaking of Lepter’s leg, no weapon used; that no crime had been committed by appellant as demonstrated by his acquittal of the charge of attempted grand theft; that appellant acted only in self-defense and endeavored to leave the presence of Lepter; that he used only sufficient force to disengage himself from Lepter when the fall occurred.