People v. Ross

SHAW, J.

Defendant was convicted upon an information charging him with the crime of assault with a deadly weapon. The judgment of the court was that he be imprisoned for a term of one year in the state prison at Folsom and pay a fine of $2,000.

From this judgment and an order denying his motion for a new trial defendant appeals.

At the time in question defendant was conducting a public feed-yard in the city of Imperial, within which inclosure was located a shack or house wherein he lived. Victor Sterling, upon whom the alleged assault was committed, was city recorder of Imperial. Some time prior to the alleged assault defendant had, in the recorder’s court presided over by Sterling, pleaded guilty to the charge of violating a liquor ordinance of the city of Imperial; whereupon it was adjudged that he should pay a fine of $300 and serve ninety days in jail, the execution of which sentence, however, was “suspended during defendant’s good behavior.” On November 20, 1911, the day upon which the assault is alleged to have been com

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mitted, Sterling, having been informed that defendant was in possession of a quantity of liquor with the intent to use the same in violation of law, wrote out a search-warrant directed to any sheriff, marshal, constable, or policeman in Imperial county, commanding such officer to search the house, buildings and rooms of defendant for beer in bottles and whisky in bottles, jugs or kegs. He never issued or delivered this warrant to any officer empowered to execute the same, but, retaining it in his possession, he called to his aid three persons, two of whom were city marshals of Imperial, and all of whom were in fact armed, and these four went in an automobile to defendant’s feed-yard for the dual purpose, as stated by Sterling, “to investigate if he [defendant] was keeping good faith with the court, ’ ’ and to see if he had any liquor on the premises. Upon driving inside the inclosure, his armed escort, making no display of their arms, however, remained in the automobile and Sterling got out and proceeded toward the house of defendant, about one hundred and fifty feet from the point where they had stopped. He inquired for Ross, who, when Sterling was about twenty feet from the house, came out, whereupon Sterling said to him: “We have the necessary papers and we want to see what you have here.” Ross drew a pistol from his pocket and, saying: “I have had enough of you sons-of-bitches, ” pointed it at Sterling and told him, in effect, to leave the premises, threatening to shoot him. Sterling, while parleying with defendant, walked toward the automobile, and defendant, with a rifle which, during the parley, he had secured from his house, and still pointing the pistol at Sterling, followed him thirty or forty feet until Sterling got into the machine and with his companions drove away. The uncontradicted evidence further shows that defendant “had every chance to fire the gun if he wanted to,” that “nothing prevented him from doing it,” that he did not do so and “made no effort on his part to discharge .the firearm. ’ ’