People v. Fuentes

MARKS, J.

This is an appeal from a judgment pronounced on defendant after he had been convicted by the trial judge, sitting without a jury, of committing an assault on the person of Joe Garcia “by any means of force likely to produce great bodily injury” as that crime is defined by section 245 of the Penal Code. He was sentenced to serve the term prescribed by law in the penitentiary. Defendant contends that the evidence shows him guilty of battery as defined in section 242 of the Penal Code but not of the crime of which he stands convicted.

Joe Garcia and defendant were both residents of the city of Banning in Riverside County. The evidence indicates that there had been trouble in Banning between Mexican Nationals and Americans of Mexican descent. Garcia and defendant were both citizens but some friends of Garcia had been associating with the Mexican Nationals.

[739]

On the evening of December 16, 1945, Garcia, his wife and two friends (the first name of one of them was Saturnino), had a few drinks of beer in some of the resorts in Banning. In one of them they met defendant who was in the company of some friends. Some words were exchanged between the two groups but nothing very serious occurred although some one in defendant’s group claimed to have been threatened with a beer bottle, struck with a salt shaker and called a vile name.

Garcia and his group left and went to the home of Saturnino where they each drank a glass of wine. While they were there some one threw a rock through the window. Defendant and his friends denied doing this and no effort was made to attribute this act to any of them.

Garcia and his wife left the house of Saturnino and proceeded on their way home. They had to follow a path which crossed the Southern Pacific Railway. When they reached the tracks they saw defendant's friends there. Some one mentioned the name “Saturnino” and defendant came up and struck Garcia with his right fist. Garcia slumped to the ground with his head coming to rest on or against one of the railroad rails. He was knocked unconscious and his wife, assisted by two of the men, carried him the short distance to the gate of his home by which time he had regained consciousness. His wife then assisted him into the house. Garcia had a small laceration on the right side of his head about two-thirds of the way between the right ear and the crown of his head. A physician who examined him on December 18,1945, described what he found as follows: