People v. Howard

McCOMB, J.,

pro tem.

Appellant was convicted after a trial by the court without a jury of assault with a deadly weapon. This is an appeal from the judgment and order denying a new trial.

Viewing the evidence most favorable to the prosecution

(People

v.

Dukes,

90 Cal. App. 657, 659 [266 Pac. 558]), the facts in the instant case are:

Appellant about 2 A. M., while driving his automobile, accidentally struck a car, parked without lights. As he left his car the complaining witness, Mr. Rice, approached him, inquiring if he could be of assistance. Receiving no answer to his repeated queries, he turned to walk away, whereupon appellant struck him on the head, rendering him unconscious. Mr. Rice received a cut approximately 4 inches long on the top of his head. He also testified that he did not know whether the appellant struck him with his fist or some other object. Several hours after the incident there was found near.the scene an object measuring 4%"xl"xys,/, composed of four bolts not sharp at either end and wrapped in two layers of ordinary bicycle tape. This object was received in evidence as People’s exhibit No. 2.

Appellant relies for reversal of the judgment on the following propositions:

First: The trial court committed prejudicial error in receiving in evidence People’s exhibit No. 2;

Second: The evidence is insufficient to sustain the judgment;

Third: The trial court erred in denying appellant’s motion for a new trial on the ground (a) of newly discovered evidence, (b) that the judgment was not pronounced within the period prescribed by section 1191 Penal Code.

[260]

Appellant’s first contention is fully sustained by the holding of our Supreme Court in the case of

People

v.

Hill,