People v. Perez

VALLÉE, J.

Defendant Perez was convicted by a jury of assault by means of force likely to produce great bodily injury. He appeals from the judgment and the order denying his motion for a new trial. He urges that the court ‘ ‘ erred in decisions on questions of law,” misdirected the jury, and erred in denying a new trial.

Viewed in the light most favorable to respondent, the evidence was as follows: About 5 p. m. on October 10, 1954 Carl Webb, his wife, his sister-in-law, and his three children left Norwalk Park in an automobile. As they left Webb noticed a group of young men on the sidewalk and in the parkway. Perez was in the group. Two of the group were wrestling or tussling with each other. Webb stopped his car to watch what the group was doing. He saw Perez run over to a tree which was about 12 feet from his car and jerk a bottle of beer out of a small six-pack. Perez held the bottle by the neck as if he was going to throw it at the ear.

Webb immediately got out of the car and walked around in front of it to about three feet from where Perez was standing. He asked Perez to put the bottle down and Perez lowered his arm to his side. Another of the group asked Webb to take a swing on him if he wanted to fight. Webb told him he did not want to fight. Defendant Roeheford then approached and told Webb to mind his own business, that they were just having a drunken party and he had no business butting in. Webb’s wife had left the car and was standing directly behind him. She asked him to “come on” and he started to turn to his right. As he did so, defendant Roche-ford said to Mrs. Webb, “You two-bit whore, get back in the car.” Webb turned to his left and at that moment was struck on the right temple and knocked to the pavement. He did not see who struck him or with what he was strack. At that time Perez was standing to Webb’s right and Roeheford was in front of him. Webb was lying face-up on the ground and a foot struck him in the face, knocking him unconscious. A nerve in Webb’s right temple was crushed, three teeth were

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loosened, his mouth was lacerated, his eyes were blackened, and an artery “broken” in his left cheek.

Webb’s sister-in-law testified that Perez hit Webb with the beer bottle and Rocheford “stomped him in the face.”

In response to a question by the district attorney, Webb testified Perez held the beer bottle “up as if he was going to throw it towards the car.” Defendant then objected on the ground the answer was a conclusion. The objection was overruled. Defendant asserts error. There was no error. The objection came too late. There was no motion to strike. The answer was merely a statement of what the witness saw. It was descriptive of the manner in which Perez held the bottle. A witness who saw the fracas was asked, “Did you hear any other bottles hit the ground, or anything like that or-” Defendant objected on the ground the question called for a conclusion. The objection was overruled. Defendant claims error. There was no error. The question called for matters which the witness could perceive with his senses. Referring to Perez, a witness said “It looked like he aimed—intended to throw it [the bottle] through the window of the car.” Defendant asked “that the intended go out.” The district attorney said, “All right.” No action by the court appears. Defendant says the court erred. The record does not indicate the court was apprised of the fact that a motion had been made. It was the duty of counsel to press the matter and obtain a ruling. Not having done so, error cannot be claimed.