People v. Lopez

THOMPSON, J.

The defendant was charged by information with the offense of assault with a deadly weapon with intent to commit murder. The jury returned a verdict of guilty of assault with a deadly weapon, upon which verdict defendant was sentenced for the term prescribed by law, with this additional order in the judgment “After sentence has been served, defendant is to be deported to Mexico.” Defendant’s motion for a new trial of the cause was denied and it is from the judgment thus pronounced and the order denying Ms motion for a new trial that he prosecutes this appeal.

[201]

It appears from the testimony that the defendant and one Hermandez had purchased four pints of whisky during the evening of February 27, 1926, of which they had consumed three pints before- 12:15 A. M. of the 28th. At this time Police Officer William J. Hackett observed them near the Santa Fe depot in Los Angeles City. By reason of the fact, as he testified, that they were boisterous and noisy he approached them and found them under the influence of liquor. Hermandez was able to walk and to talk coherently. A search of him revealing no liquor, the officer sent him home. The fourth pint of liquor was found on defendant’s person and the officer says he put him under arrest for violation of the Wright Act; that he put his right arm under defendant’s left armpit and started to lead him to the patrol box. They had not proceeded far when the defendant fell or swung himself in front of the officer and on his way down grabbed the officer’s gun from the holster on his left hip. Simultaneously with the grabbing of the gun Officer Hackett let go of defendant’s arm and struck upward with his arms so that the first shot fired passed between them— close to defendant’s head. The defendant fell to the ground and shot the second time—this shot striking the officer about three inches below the left nipple and emerging from the tip of the left shoulder-blade.

The defendant took the stand in his own behalf and testified that he and Hermandez were merely talking together when seen by the officer; that Hackett approached them and searched them; that he hit Hermandez on the back and sent him home; that the officer then commenced to pull him (the witness) along the street, bumping him with his knee and asking him questions in English which he did not understand ; that finally the officer asked him for money and because his purse had nothing but a dollar and some keys in it the officer pulled his gun; that the defendant made a grab for it, whereat the officer tripped and fell; that the defendant fell upon the officer and while grappling for the gun it was discharged. The defendant freely admitted possession of the liquor and that he was intoxicated.