People v. Semikoff

BARNARD, P. J.

The defendant was charged with the crime of assault by means of force likely to produce great bodily injury, it being alleged that the assault was committed on one John Nedom by striking him with his fists and kick: ing him with his feet. He was found guilty by a jury and has appealed from the ensuing judgment and from an order denying his motion for a new trial.

The record shows that the appellant and Nedom had consumed considerable wine together throughout the day of October 8, 1933, at the home of Nedom on a ranch near Kerman, California. Some time after dark on the evening of that day the two went, in an old automobile belonging to the appellant, to the town of Kerman. Something happened to the lights on appellant’s automobile and the two went to a garage operated by one William Schubin, for the purpose of getting some wire to fix the same. They found the garage closed and went to look for Schubin, finding him at a drug-store. There all three drank some beer and became so noisy that the proprietor of the store locked them

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out. The appellant engaged in an argument with Schubin and seriously objected to the fact that he would not go back to his garage to get some wire with which to fix the appellant’s lights. Thereafter, the three went to a pool-hall, where another argument and some more drinking took place, and the three became so noisy that the proprietor put them out. Somewhere around 10:30 P. M., Nedom requested Schubin to take him home in his automobile, which he did.

A few minutes after they arrived at Nedom’s home, and while they were talking together, the appellant drove into the yard. He testified that he had a “hunch” as to where they had gone and followed them up. On arriving there he got out of his automobile and came over to Schubin and started talking to him about the wire and, as he testified, “the argument got hotter and hotter and I didn’t see John Nedom, he was off to one side”. Thereupon the appellant struck Schubin twice with his fist, hitting him on the mouth and on the eye, after which he apologized to Schubin for hitting him. As he was doing this Nedom came up, and there is a conflict as to what next occurred. Schubin testified that Nedom ordered the appellant to leave the place and not come back, and that the appellant whirled around and the two began to scuffle. The appellant testified that Nedom came up behind him, grabbed his arm and turned him around, that Nedom had a knife in his hand, and that he attempted to take the knife from him in order to save himself from bodily harm. Nedom testified that he had no knife, that the appellant hit him on the nose with a knife, that he started to run away, that the appellant grabbed him and began to hit him, and that- he then became unconscious. Schubin testified that it was dark and that he did not see a knife in the hands of either of the combatants during the Struggle, although after the fight the appellant showed him