People v. Weaver

THOMSON, J.,

pro

tem.

By an information filed in the superior court defendant and appellant was charged with the crime of assault with a deadly weapon, with intent to commit murder, to which he entered a plea of “not guilty”. A trial was had before a jury and the jury returned a verdict of guilty as charged in the information. This appeal is taken from the judgment of conviction and from the order

[348]

of the trial court denying appellant’s motion for a new trial.

Appellant makes two general assignments of error: First, that the evidence does not support the verdict; and second, that the trial court erred in its rulings upon the admissibility of evidence.

Under appellant’s first assignment of error he argues that the evidence establishes the fact that appellant’s assault was justified in defense of appellant’s person. The record discloses that an altercation took place between defendant and the complaining witness in a store operated by the complaining witness, about 10 minutes before the assault with which the defendant is charged. There is a conflict as to how this first altercation began, between the testimony of defendant and the testimony of the complaining witness. However, the evidence shows that in the first altercation the complaining witness struck defendant over the head with a revolver, using the same as a club. Defendant immediately left the store and went to the home of his mother in the same vicinity, where he obtained a pistol and walked back to a point close to said store, arriving there approximately 10 minutes after the first altercation. A witness for the People testified that he saw defendant returning with the pistol in his hand and heard him threaten to kill the complaining witness. Two witnesses for the defendant* claimed that they saw the defendant return, but did not see a pistol in his hand and did not hear him threaten anybody. These same two witnesses testified that, when defendant was returning and had reached a point near said store, complaining witness hurried out to meet the defendant, holding a revolver in his hand and, threatening the defendant with the revolver, said he would kill the defendant. On the other hand, the complaining witness testified that he did not have the revolver on his person at the time of the second altercation and that he did not threaten the defendant. The uncontradieted evidence shows that the defendant, upon this second meeting with the complaining witness, shot the complaining witness three times with a pistol which defendant had in his hand, causing serious wounds.