People v. Dodini

PREWETT, P. J.,

pro

tem.

The defendant was convicted of the crime of an assault with a deadly weapon and he brings this appeal upon the grounds of misconduct of the district attorney and insufficiency of the evidence to justify the verdict. At the time of the assault the defendant and the complaining witness were neighbors, living about half a mile apart. At the time in question certain cattle, the property of the defendant, strayed into and upon the premises of the complaining witness. The latter, assisted by several other persons, was making an effort to drive the cattle away when the defendant, armed with a rifle, appeared on the scene and commenced vigorously to abuse the members of the party. He was very

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angry.- When about one hundred yards distant, he raised his gun as though to shoot. At that moment the wife of the complainant screamed and he lowered the gun. He thereupon ran toward the party and when within seven or eight feet from the complainant he pointed the gun at the latter’s stomach. In arriving at a conclusion as to the sufficiency of the evidence to justify the verdict, this court will accord full value, reasonably considered, to the evidence against the defendant. Primarily, it is the function of the jury to weigh the evidence and determine its credibility and this court will interpose its corrective powers only when it affirmatively appears that the jury has committed an error. It is true that the defendant did not shoot, but his failure to do so is only one circumstance in a chain necessary to establish the conclusion that he did not intend to do so. In the instant ease the defendant angrily presented the gun in a threatening attitude. The wife of the complainant says: “I heard the click and saw him give the side movement and then raise the gun like that, and then point “it right at Mr. McMartin’s back. . . . He didn’t have it clear to his shoulder—he didn’t raise it clear to his shoulder, but just like he was going to take aim and I hollered.” Conceding that the gun was loaded, there is no room for controversy that his acts, up to this point, furnish every element of an assault with a deadly weapon. Whether his motive in desisting arose from the screams of the woman, or some obstruction intervening between him and his intended victim, or because he believed the distance too great or because he was seized with remorse or fear is material only, in so far as it may throw light on Ms original intent. But the jury upon sufficient evidence has found that his intent was felonious.