People v. Pedde

CHIPMAN, P. J.

It was charged in the information that Wilson Duke, John Pedde, and John Hendricks, at Lassen County, on the twenty-sixth day of April, 1913, with a deadly weapon, to wit, a riñe, made an assault upon the person of F. P. Cady and did then and there shoot and wound, with intent then and there to kill and murder him, the said Cady.

Duke had a separate trial, with what result does not appear. Pedde and Hendricks were jointly tried and the jury rendered a verdict of guilty as charged recommending them to the mercy of the court. Judgment of conviction followed and they were each sentenced to imprisonment for the term of three years at San Quentin. The appeal is from the judgment.

The only claim 'made for reversal is that the evidence is insufficient to justify the verdict and that no greater offense was shown than simple assault.

The defense of the Indians seems to have been in charge of Mr. T. H. Selvage, deputy U. S. attorney, and the prosecution was conducted by the district attorney of the county.

F. P. Cady and Joseph R. Nelligan were, on April 26, 1913, fish and game wardens. On that day they arrested a party of eleven Indians, old and young, whom they found, about the hour of noon, fishing and having fish in their possession, in violation of a county ordinance, at Cedar Creek, about eight miles from the town of Madeline. After being placed under arrest Nelligan searched each one of the party for arms and fish and found no weapons but all had fish. They left the fishing ground, Cady and Nelligan on foot and the Indians on horseback, Cady in front and Nelligan at the rear of the party. They had gone about one mile to a point, near some buildings, without anything noticeable occurring. What then took place was testified to by Cady and Nelligan. Cady testified that at this point defendant Hendricks was riding beside him, defendant Pedde immediately behind Hendricks,

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and Duke directly behind witness, Cady. What occurred will be given in the witness’s language: “When you arrived at these buildings what happened there ? A. Someone behind and to my right said ‘ How far are we going ? ’ I looked over my shoulder and said ‘To Madeline.’ The defendant John Pedde replied, ‘Can’t go to Madeline, too far.’ I then stopped and turned partially around and said ‘You have to go to Madeline, that is the nearest place, no other place to take you.’ He replied ‘Can’t go to Madeline, got to talk that over, ’ and commenced to get off his horse. Q. What did you do then? A. I immediately turned to my left and found Wilson Duke off his horse and so close to me, just putting his hands on me. So close to me that I'couldn’t get the muzzle of my rifle down to shoot. I then, when I found I could not shoot, raised the rifle to strike him and he caught the barrel of the rifle. Q. Where was John Hendricks and John Pedde at that time? A. Almost at the same instant or so close to it that I could not tell any difference in the time the defendant John Pedde jumped on my back and caught me around the shoulders and Hendricks caught me by this arm. Q. Go on and relate what happened. A. The rifle was taken away from me. Wilson Duke had it and then stepped back sideways from me with the gun in this position, looking back toward the rear where Nelligan was. Q. Toward the rear of the column? A. Yes, sir. Q. What was John Pedde and Hendricks doing then? A. They held on to me and sometimes I was down on my knees and sometimes up until I finally got loose from them. All the time I was trying to get my pistol out that I had in a.scabbard. When I got loose they immediately ran. I looked for Wilson Duke and he stood behind a little pile of lumber about perhaps fifteen steps from me. I can’t estimate the distance correctly. He was in an upright position with the gun in this position looking back somewhere toward the rear of the column. I looked to see where Nelligan was. Mr. Selvage: We object to this on the ground it is immaterial and irrelevant. There is no charge here in this case against Wilson Duke. Duke is not on trial and the testimony as to what Duke did from this point on is immaterial. The Court: Overruled. A. And saw Nelligan lying on the ground face downward apparently dead. I then shot at Wilson Duke twice without any apparent effect and didn’t even make him look around