People v. McDonnel

THOMPSON, J.

The defendant was charged with an assault with a deadly weapon, to wit, a loaded revolver, with intent to kill Tommy Young. He was tried with a jury and convicted of the lesser offense of assault with a deadly weapon. Prom the judgment which was rendered accordingly this appeal was perfected.

The appellant contends that the verdict and judgment are not supported by the evidence; that he went with two companions to a Negro Christmas night celebration to try to identify a Negro who his companion Albro said had previously beaten him; that Tommy Young was the aggressor in an affray which ensued, and that he (the defendant) shot him in what he believed to be necessary self-defense to prevent imminent bodily harm. It is also insisted the court erred in giving to the jury and in refusing to give certain instructions.

Mr. and Mrs. Burks were entertaining some friends in their rooms in the upper story of an apartment house in Eureka, on Christmas night. The hosts and guests were Negroes. The defendant and his companions were white people. The defendant was acquainted with Mr. Burks, having previously worked with him in a Eureka foundry. Upon that Christmas night the defendant met his friend Albro, who was then disheveled and intoxicated. His clothes were tom and muddy. He told the defendant he had been beaten by a Negro, and asked the defendant to go with him to the Burks’ Christmas celebration to see if they could find the man who assaulted him. The defendant consented to do so, and arming himself with his revolver they met and persuaded another companion by the name of Van Cleve to accompany them. The three men pro

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ceeded to the apartment house where the Burks’ party was being held. They arrived shortly before midnight, and entering the front door they climbed a flight of 26 stairs to the second story upon which the Burks’ rooms were located. They rapped at the door, and when Mr. Burks appeared the defendant told him his friend Albro had been beaten by a Negro, and said they wanted to see if that man was there. Burks told him he didn’t know anything about the affair; that they were having a little Christmas party, and did not want any trouble. He requested the defendant and his companions to leave them alone and to go away. But when the defendant and his associates insisted on seeing the Negro guests, Burks called them from the room. Ten or a dozen of them came trooping out into the hallway and stood in a group upon the landing at the head of the stairway. Tommy Young was among them. The defendant, evidently being surprised at the large number of guests who came swarming out of the room, decided that “discretion was the better part of valor,” and saying “We don’t want any trouble, let’s go,” hastily ran down the stairs to a safe place near the bottom, where he stopped and turned around. The defendant claimed that Young shoved him downstairs, but several witnesses denied that statement. The defendant asserted that Young followed him part way down the stairway, and that he threatened him with bodily harm. But that statement was denied by Young and several other witnesses. Young testified that he put his hand on the shoulder of Van Cleve, a very tall and large man, as he stood at the head of the stairway, and told him they were having a Christmas party and didn’t want any trouble, and that he asked the defendant and his companions to go away and to leave them alone. Van Cleve claimed that Young shoved him down the stairway. In any event Van Cleve and Albro proceeded to follow the defendant down the stairway. Young stood at the head of the stairway with one leg thrown over the bannister. None of the Negroes were armed, and none of them threatened the defendant or his companions with harm. There was no demonstration or effort on the part of Young or the other Negroes to follow them downstairs.