People v. Pittullo

VAN DYKE, P. J.

Appellant was charged by information with two counts -of assault with a deadly weapon, one against J. E. Davidson and the other against Elvira Pittullo, the wife of appellant. On trial the jury returned a verdict of guilty as to each count. Motions for new trial were made and denied

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and the ' appellant was sentenced to imprisonment in the state prison. He appeals from said judgment and order.

Appellant and Elvira Pittullo were married in May, 1951, and by August 18, 1951, the date of the alleged assaults they had separated and Elvira was living in Yreka with her foster child. She testified that on the evening of that day she, in company with her foster daughter, her mother and Davidson, entered her home; that when she entered her front bedroom the door of the clothes closet flew open and appellant came out with a rifle aimed at her; that he said “I will git you, you s-s of b-es,” whereupon she cried out “Oh my God, he has got a gun!”; that Davidson came in from the living room and grasped the gun by the barrel; that she also grasped the barrel of the gun; that Davidson pushed appellant backward onto the bed; that appellant' maintained his hold on the stock of the gun and pulled the trigger, the shot going into the wall; that Davidson and she then succeeded in taking the gun from the appellant and she went with it to a neighbor’s house, giving the gun to the neighbor, after which she called the sheriff. Davidson testified that he heard a shout from the bedroom, got up from a chair in which he was sitting in the living room and as he got to the bedroom door found a gun aimed at him; that appellant was holding the gun; that he ducked and grabbed the end of the gun barrel with his left hand and shoved appellant back onto the bed with his right hand; that there then ensued a struggle for the gun; that Elvira and her mother were in the room as the struggle went on; that appellant held the stock of the rifle to his right shoulder with his hand and finger on the firing mechanism; that during the struggle a shot was fired from the gun; and that he then succeeded in wresting the gun from appellant.

Appellant first challenges the sufficiency of the evidence to sustain the conviction as to the assault upon Davidson. There is no merit in the claim. “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ’ ’ (Pen. Code, § 240.) If the assault be committed with a deadly weapon the offense is punishable by imprisonment in the state prison or in a county jail. (Pen. Code, § 245.) A gun capable of being instantly fired is a deadly weapon. (5 Cal.Jur.2d “Assault and Battery” p. 226.) The foregoing evidence from Avhich it directly appeared or could be inferred that appellant entered the home of his estranged wife, concealed himself in a clothes closet, with a loaded rifle, lay in wait until she entered