People v. Bush

STONE, J.

Defendant was charged by an information with violation of Penal Code section 245, assault with a deadly weapon, and with a prior conviction of felony in Arizona November 27, 1961, for aggravated assault. Defendant admitted the prior conviction and pleaded not guilty to the charge of violating Penal Code section 245. A jury found him guilty, and he has appealed from the judgment entered pursuant to the verdict.

This appeal emanates from a knifing that took place in the International Pool Hall located in West Fresno in an area known as Chinatown. There was some conflict in the evidence but, stated most favorably to the People

(People

v.

Newland,

15 Cal.2d 678, 681 [104 P.2d 778];

People

v.

Sweeney, 55

Cal.2d 27, 33 [9 Cal.Rptr. 793, 357 P.2d 1049]), the facts are these:

Defendant entered the pool hall about 2 p.m. April 16,

[797]

1963, walked among the patrons, addressing some of them in a boisterous and threatening manner; at other times talking in a threatening manner but to no one in particular, he said he would use a shotgun on anyone who could whip him. Several times he referred to himself as “the hatchet man.” He finally centered his attentions on one Waldo Emerson Porter, Jr., who was playing pool. He first told Porter he had $5 and for him to get some “stuff.” Porter asked him what he meant, and also asked him not to embarrass him by asking such questions in the presence of his friends. After replying that he was in the same world with Porter, defendant left, only to return and address Porter in an abusive manner. He took a knife from his pocket and stuck it in the pool table several times, left the vicinity momentarily, returned, and deliberately stepped in front of Porter and either pushed or brushed him. There is conflict in the evidence as to just how the actual combat started, whether Porter struck at defendant, or whether defendant lunged at him, but it is clear that the action occurred very rapidly. Porter received a knife cut on his side, which required 15 stitches.