People v. Moody

[707]

PLUMMER, J.

The defendant was tried and convicted upon an information charging that on or about the seventh day of February, 1932, in the county of Tuolumne, state of California, he assaulted one Mrs. H. E. Rolfe with a deadly weapon, with intent to commit murder. From the judgment entered upon the verdict of guilty based upon the charge just referred to, the defendant appeals.

.Only one question is presented for our consideration by the appellant’s brief, to wit: Whether the jury was justified in finding that the assault had coupled with it the intent to -commit murder. The appellant admits that the court correctly instructed the jury.

The record shows that the defendant and Mrs. H. E. •Rolfe both attended a ball which was given at the Harvard Hotel in the town of Tuolumne, on the evening of February 6, 1932. It further shows that prior to the date of the alleged assault the defendant and Mrs. Rolfe had been maintaining toward each other the relationship of husband and wife, without ever having in fact been married. While not expressly called to our attention in the record the inference seems clear that the defendant and Mrs. Rolfe did not attend the ball together, but went there individually. During the evening of the ball the defendant asked Mrs. Rolfe to dance with him; Mrs. Rolfe declined to do so, stating that she was not dancing that evening. From this time on the record shows that the defendant was in a surly mood, made many profane and vulgar remarks to her, and also about friends who apparently were in her company. Some time after 12 o’clock Mrs. Rolfe, accompanied by two of her friends, a husband and wife, went to her residence, the friends who accompanied Mrs. Rolfe remaining but a few minutes. After their departure Mrs. Rolfe made some 'preparations for retiring for the night, and at the timé of the assault hereinafter mentioned was clad in her night clothes covered by a kimono. . Some time after 12 o’clock and after Mrs. Rolfe had gone to her own home, the defendant repaired to the residence of Mrs. Rolfe and sought entrance. Whether on account of the ugly disposition which the defendant exhibited during the evening, or for some reason not completely disclosed by the record, Mrs. Rolfe did not wish the defendant to enter her apartments that night, and seeking to drive him away, fired a pistol