People v. Duchon

VALLÉE, J.

In a non jury trial defendant, charged with assault with a deadly weapon, was convicted of battery. He appeals from the judgment and the order denying his motion for a new trial. He contends the evidence is insufficient to sustain the judgment, that he acted in self-defense, that the trial court erred in the admission and exclusion of evidence, and that he was denied a fair trial.

Hamlet Goidotti and defendant lived next door to each other in El Monte. A hedge 5 feet high was growing at or near the property line separating their lots. There was a controversy with respect to whose property the hedge was on. Goidotti testified he believed the hedge was on his property; he had surveyed his lot; and he had been clipping the hedge for 19 years. Defendant introduced a diagram in evidence which showed the hedge on his property.

About 6 :30 p.m. on August 26, 1957, Goidotti, on a step ladder, started trimming the hedge with an electric clipper. As he started, defendant jumped out of his back door and hollered, “God damn you, what are you' doing? Can’t you leave that hedge alone, you son of a bitch?” Goidotti shut off the power and left the shears on top of the hedge. Defendant grabbed the shears and threw them at Goidotti’s head. Goidotti threw up his arm so that it was protecting his face or head. The blades of the shears hit him on the inside of the left arm about five inches from the wrist, causing four jagged cuts from which blood streamed. Three stitches were taken in one of the cuts. The handle of the shears hit him on the head, knocking him off the ladder and against his house.

Defendant denied using any vile language. He testified that when he went out of the house Goidotti was running the clippers but not clipping the hedge; he thought Goidotti was doing it to annoy his (defendant’s) wife; Goidotti started to swing at him; he struggled with him (Goidotti) a second or two to get the clippers; he got the clippers away from him; Goidotti got off the ladder and backed away three or four feet on his own property; he did not throw the clippers “on him”; after two or three seconds, it did not look as though Goidotti wanted to fight so he tossed the clippers back over on Goidotti’s property against his house; he did not throw

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them at Goidotti’s head; when he started to toss the clippers over toward the house Goidotti grabbed, ‘ ‘ dived, ’ ’ for them; he could not see whether Goidotti caught them; after he tossed the clippers he started back toward his house and Goidotti said, “Now, see what you have done”; he (Goidotti) was holding his right arm; he (defendant) looked but did not see any bruises or blood, said “ Go to hell, ’ ’ and walked back into his house.