People v. Eantosca

CHIPMAN, P. J.

Defendant was convicted of the crime of assault with a deadly weapon with intent to commit murder. He moved for a new trial, which was denied, and he was thereupon sentenced to imprisonment in the state prison for the term of fourteen years. Upon the facts, the defense was an

alibi.

The proof of the

alibi

consisted of the testimony of the defendant and his brother, both of whom testified that they were at their cabin not far from the scene of the assault the entire evening and until after 10 o’clock of the twenty-sixth day of April, 1917. The assault was made about fifteen minutes before 10 o’clock. If the evidence was sufficient to support the verdict, it necessarily disposes of the

alibi

adversely to defendant. The evidence, we think, justified the verdict.

The prosecuting witness, August Chiesa, was a miner and was working on the night shift, from 10:30 P. M. until 6:30 in the morning, at the Bunker Hill Mine, Amador County. He testified that he left his lodging place about fifteen minutes to ten on the night of the assault and reached a point about one hundred feet from the mine. “Q. Just tell the jury what happened then. A. When I was there by the mine, Nick Eantosca was in front of me and I recognized him well. As soon as I raised my head up, I looked at him and I saw it was him and he hit me right away. The first hit that he gave me, I did not fall. I raised my hand up and hit him in the face, but I don’t know what point I got him in the face. At the same time I hit him with my hand in the face; I had my lunch basket. The lunch bucket go out of my hand and it go on the ground. When I left my bucket fall on the ground, I turned and saw somebody behind mé and at the same time they hit me with something; I thought it was— Mr. Spagnoli: We ask that that be stricken out—a conclusion of the witness. Mr. Snyder: It was the witness’ best judgment. The Court: Do you know what he hit you with? A. I was not sure; it was only I heard something fall on the ground and I

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thought it was the sound of— The Court: That may go out as to what he thought it was. Mr. Snyder: Then what happened? A. Then I fell on the ground and then I saw that both of them was there and both of them hit me. I did not holler or I did not talk. When I was down on the ground, I had my face looking at the ground, on the ground, and my arm like this [indicating] and then they used something, maybe a-and they hit me on the back four or five times. Mr. Spagnóli: I ask that answer be stricken out, a conclusion of the witness. A. I think they hit me with a-because I felt the hit right on my back. Mr. Spagnoli: I think the witness should be instructed not to give his conclusions. The Court: What he thought may go out. A. When I remained there about a minute like a dead man, I saw the partner of Nick Eantosca going away, and Nick Eantosca, when I had my arm like this [indicating], I was not unconscious, I saw Nick Eantosca take the razor out of his pocket and cut me right here [indicating neck]. When I was there and I know what I was doing, I raised my arm up so he could not cut me down lower. Q. Did he cut you with the razor? A. Yes, he did. Q. Where? Show the jury where you were cut with the razor. A. [Indicates.] The Court: Q. You say the defendant here is the one that cut you? A. Yes, I am sure it was Nick Eantosca. Q. You say there were two men there; did each of them hit you with something? A. Yes, both of them hit me, but who used the razor was Nick Eantosca. Q. The defendant in this case is the one who used the razor ? A. Yes, this fellow [indicating Nick Eantosca]. ’ ’