People v. Dukes

CRAIG, J.

The defendant, a deputy sheriff of Riverside County, was charged by information with a violation of section 149 of the Penal Code, committed as follows: “The said defendant, on or about the 27th day of October, 1927, at the .said county of Riverside, state of California, and before the filing of this information, did wilfully and unlawfully and under color of authority as deputy sheriff of Riverside county and without any lawful necessity, assault and beat Walden E. Trimble, said defendant being then and there a duly appointed, qualified and acting deputy sheriff of Riverside county, California.” He was tried, and found guilty as charged in the information.

Three grounds of appeal from the judgment are urged: First, that the court erred in excluding ee'rtain evidence; second, that the giving of instruction No. 8 was error, and third, that the verdict and judgment are against the evidence and that the verdict was the result of passion and prejudice.

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The last contention is not sufficiently meritorious to require extended consideration. An appellate court has nothing to do with the weighing of the evidence on appeal. All intendments favor. upholding the judgment and the action of the trial court. The evidence is to be viewed in the light most favorable to the prosecution. In the statement of facts contained in appellant’s opening brief, much of the testimony of the witnesses Trimble and Roberts is ignored, apparently upon the theory that these witnesses were not worthy of belief. Having found the defendant guilty, it must be assumed that the jury believed such testimony as points to his guilt. That evidence is amply sufficient to sustain the verdict. Accepting it and disregarding that which contradicts it, the transcript shows that on October 27, 1927, Trimble was driving an automobile on the highway at a rate of speed in excess of that allowed by law; that the defendant and another officer followed him, and when he slowed down back of a truck which interfered with his progress, the officers came alongside of his machine, stopped their own, and approached his car. Dukes then shouted to Trimble: “God damn you, get out of that car. Who do you think you are, that you can come down there like that—” Trimble started to get out, but Dukes took hold of him and dragged him out of the car, struck him in the face, then jerked his glasses off, threw them on the ground, and struck him in the face again. At this point Roberts, who had witnessed the affair, remonstrated with Dukes, who replied: “Who the hell are you? I have just arrested this man for coming down that hill at an excessive rate of speed.” Trimble asked Dukes why he was arresting him, and Dukes responded, “For driving down that hill in the reckless manner you did.” In arresting Trimble, Dukes did not give him a citation, -as required by section 154 of the Automobile Act. It appears that later Trimble entered a plea of guilty to the charge of reckless driving, and was fined $100.