People v. Dick

GARGANO, J.

—Defendant, after jury trial, was convicted of assault with a deadly weapon with intent to commit murder in violation of Penal Code, section 217. Defendant’s

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application for probation was denied and he was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

Defendant, a Caucasian, was in the “ G N M Club ’ ’ in the City of Sacramento on December 3, 1966, with a gun that he had purchased earlier during the day. Around midnight defendant stood near a table in the bar and looked at Cornell Lee1 Collins, a Negro, who was seated at a nearby table. Defendant then removed the gun from his belt, pointed it at Mr. Collins, and shot him in the stomach when he attempted to rise.

Immediately after the shooting, defendant left the bar pursued by William Memminger, a witness to the shooting. Defendant proceeded down J Street toward 5th Street where lie took off his jacket and threw it away. When he discovered that he was being followed by Memminger, he wheeled around, pointed the gun at his pursuer and fired a shot.

‘ Shortly afterwards defendant was seen struggling with another man at the corner of 5th and J Streets. Defendant then walked across J Street and met a friend. As the two men walked down the street together defendant’s friend asked defendant if he wanted to sell the gun. Defendant replied, “No, I have to kill a son-of-a-biteh with it.’’

At his trial defendant admitted that he shot Mr. Collins with a gun that he had purchased earlier that day. lie also admitted that he knew the gun was loaded, Defendant contended, however, that he did not know Collins and that he shot him accidentally. Accordingly, his sole contention for reversal' is that there was insufficient evidence to sustain his conviction. Specifically, he asserts that an essential element of the crime for which he was convicted is the intent to commit murder and that the People failed to show that defendant ivas acquainted with Collins or that he had a motive for shooting him or to produce any other evidence from which the jury could infer this specific intent.

We conclude that there was ample evidence for the jury to find that defendant deliberately shot Collins in the stomach. Defendant knew that the gun was loaded; according to the expert testimony, it was not of the kind likely to be discharged accidentally. Moreover, Collins testified that shortly before the shooting he saw defendant standing in front of him with the weapon in his hand. He stated that defendant was staring at him when he heard a shot and felt a burning