People v. Brown

PULLEN, P. J.

Defendant was charged, arraigned, tried and found guilty of assault with a deadly weapon with intent to commit murder.

This is an appeal from the judgment of conviction and from the order denying the motion for a new trial.

It appears that about 6:30 o ’clock on the evening of February 25, 1938, James Estep, a cotton farmer, went to his cotton camp near Dos Palos in Merced County, and was met by the defendant carrying a .22 rifle, who fired upon Estep, one of the bullets taking effect. The defendant then left camp in an automobile, but was captured a few miles from the camp. There is evidence that the defendant had been drinking, and also testimony that after the assault defendant had made statements that he shot Estep and intended to kill him.

On this appeal defendant contends that the court erred in giving certain instructions requested by the prosecution, and that by reason thereof the jury was misled to the prejudice of the defendant. Under the charge of assault with a deadly weapon with intent to commit murder, it is incumbent upon the prosecution to prove a specific intent to commit murder, and being an essential ingredient of the crime, the

[614]

intent cannot be inferred or presumed from the commission of an unlawful act.

(People

v.

Landman,

103 Cal. 577 [37 Pac. 518];

People

v.

Johnson,

106 Cal. 289 [39 Pac. 622];

People

v.

Maciel,

71 Cal. App. 213 [234 Pac. 877].)

On examining the instructions given it is apparent the jury were charged in effect that while intent to commit murder must be proved, proof of the commission of the unlawful act of discharging the rifle and shooting the complaining witness was presumptive proof that the defendant intended to commit murder; also that if it were established that the defendant shot Estep, that constituted proof that he intended to kill him.