People v. Mearse

WOOD, J.

Defendant was charged in count one of an information with assault with a deadly weapon with intent to commit murder, and in count two thereof with assault with a deadly weapon. Trial by jury was waived. Defendant was found not guilty as charged in count one, and guilty as charged in count two. He appeals from the judgment and sentence and from the order denying his motion for a new trial.

[835]

Appellant contends that the verdict is contrary to law and the evidence.

On August 2, 1948, while Leon Jefferson was lying on a bed in his trailer home in Lancaster he was shot by an unknown assailant. Defendant herein was charged with that crime in count one of this case and, as above stated, was found not guilty. Count two herein relates to an incident which occurred in the early morning of September 15, 1948 (soon after midnight), at which time defendant allegedly assaulted Jefferson with a shotgun. The defendant resided with Mr. and Mrs. Barker in a tent about 6 miles from Lancaster. On September 14, 1948, about 7:30 p.m. Jefferson and one Ramsey went in Ramsey’s automobile to the Barker tent. Mr. and Mrs. Barker and defendant got into the automobile with Jefferson and Ramsey, and they all remained in the parked automobile for some time and drank beer. Later in the evening Mr. Barker left the automobile and went into the tent. About 11:30 p.m. Jefferson got out of the automobile (leaving Mrs. Barker, Ramsey, and the defendant in the automobile) and went into the tent where he talked to Mr. Barker. Later Mrs. Barker left the automobile, entered the tent, and went through it to its opposite entrance. Then she said, “What you doing around here, Ben? [apparently addressing the defendant, Benjamin Mearse].” Jefferson then said, “What is this setup?—I can’t forget I got plugged about a month ago,” and thereupon he left the tent and went back to the automobile. About five minutes later he saw the defendant come out of the tent and walk in the direction of the house where defendant’s father lived, which house was about 600 feet from the Barker tent. Jefferson then returned to the tent. Defendant went into his father’s house and took therefrom an unloaded single barrel .16 gauge shotgun and two .16 gauge shotgun shells. He then returned to a place near the Barker tent and fired the gun. Defendant testified that he fired toward the ground. Jefferson testified that he heard a shot, and then heard the defendant say: “You said I plugged you a month ago. You better come out because I am going to give it to you tonight. ’ ’ Jefferson ran out of the tent and in the direction of the house of defendant’s father. Defendant chased him, and while doing so the defendant carried the shotgun. Jefferson testified that while running he did not look back, but several times defendant said “Halt or I’ll shoot,” and that it seemed, “from his voice,” the defendant was running right behind him;