People v. Seeley

JAMES, J.

Appeal from the judgment of imprisonment following conviction upon a charge of assault with intent to commit murder.

[587]

By the information filed by the district attorney this appellant, in the first count thereof, is charged with having murdered Dale Finnegar; in the second count he is charged with having, on the same day, committed the assault with intent to murder D. C. Huling, who was a police officer. The jury returned a verdict of not guilty as to the charge of murder. Both charges grew out of an occurrence participated in by Huling, the police officer, Finnegar, the deceased, and Seeley, the defendant. Seeley and Finnegar were, at the time charged, of the respective ages of nineteen and eighteen years. Finnegar having been killed, the only two eyewitnesses to the affray who appeared at the trial were Huling, the officer, and the defendant. The officer testified that at about 11 o’clock on a night in April, 1918, he was traversing his beat in the lower part of the city of Los Angeles, and at the moment was on his way to a signal-box located near by, for the purpose of “reporting in” to headquarters. On one of the streets included within his beat was a bakery operated by persons known to the officer. Huling testified that as he approached this bakery he noticed two men standing near the same, and that he immediately set about to observe them; that he approached on the opposite side of the street, where it was dark, in the meantime observing that one of the men had entered the bakery and the other had walked some twenty feet up the street, where he stopped. The officer was clothed in his official uniform, with a star, all of which apparel, we may note here, the appellant admitted in his testimony he had observed before the trouble began. Huling testified that he approached the man on the sidewalk, that being Finnegar, and asked him where he was from, how old he was, and his name; that Finnegar told him he was eighteen years old and was from Long Beach, and also stated, in response to the officer’s question, the direction from which he had come. Finnegar took a return ticket to Long Beach from his pocket, which he showed; that at this time the defendant came hurriedly out of the bakery and was about to pass the officer and the other man without stopping, and that he, the police officer, called to him, “Just a minute, young fellow”; that the defendant was then asked whether he was from Long Beach, too, and he replied, “Tes,” and stated his age to be nineteen years. The officer then testified as follows: “I asked him his age and he said, ‘Nineteen years of age.’ Then I said, ‘Have you