People v. Hupp

MARKS, J.

This is an appeal from a judgment pronounced upon defendant after he had been found guilty of assault with a deadly weapon, with one prior conviction of a felony which he admitted.

The sole question for consideration is whether or not the evidence is sufficient to support the verdict and judgment. Defendant argues that he was only guilty of the misdemeanor defined in section 417 of the Penal Code but not of the felony denounced by section 245 of that code.

The defendant argues that the complaining witnesses attempted to enter his home to arrest him without a warrant; that they were trespassers on his property and that he had the lawful right to protect his property with such amount of force, short of homicide, as might have been necessary to prevent the unlawful invasion of his domicile.

(People

v.

Ross,

19 Cal.App. 469 [126 P. 375];

People

v.

Hubbard,

64 Cal.App. 27 [220 P. 315]; 3 Cal.Jur. 210.)

A decision of this question requires a review of the evidence in the case to determine if the complaining witnesses were trespassers on defendant’s property.

At all times material here, C. H. Hickman and O. M. Sasseen were police officers of the city of Visalia. On the late afternoon of May 15, 1942, Officer Hickman saw defendant in a tavern in Visalia. Defendant was drunk, quarrelsome and invited the bartender to go outside and fight. Officer Hickman told defendant to go home or he would lock him up.

Later in the evening the two officers were patroling the streets of Visalia in a police car. At about 7:40 o’clock they received a radio call ordering them to go to defendant’s house to investigate a disturbance. They were informed that defendant, armed with a shotgun, had chased his son-in-law down the street and had threatened his family.

The two officers went to defendant’s house. As Officer

[449]