People v. Piercy

LENNON, P. J.

The defendant was charged with the crime of assault with intent to commit murder. He was found guilty of the crime of assault with a deadly weapon, and the judgment and sentence of the court was that he pay a fine of $500 with the alternative of imprisonment in the county jail.

This appeal is from the judgment and the order of the court denying the defendant’s motion for a new trial.

The information charged that the defendant made an assault upon the person of W. A. Beasley with a loaded revolver with intent to murder; and counsel for the defendant, in support of the appeal, asserts that the evidence is insufficient to

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justify the verdict; that the verdict is against law, and that the court erred upon questions of law occurring during the trial and in its instructions to the jury.

In substance, the facts upon which the information was based and the conviction had are these:

On July 14, 1910, the defendant entered the office of the complaining witness in the city of San Jose in an intoxicated condition and evidently in an angry mood. Without provoca^ tion he abused and ridiculed the complaining witness because of a real or fancied grievance arising out of a past business transaction. Finally the defendant “reached around to his hip pocket and pulled out a gun. ’ ’ The gun, it will be noted, was loaded. At this juncture the complaining witness shouted to one Laurensen, who was present and standing immediately behind the defendant, “Take the gun away from him.” Laurensen closed in on the defendant, and, despite his resistance, disarmed him.

This evidence as related by the witnesses for the people was somewhat clouded on cross-examination, and partially disputed by one witness for the defense. However, upon a review of the whole case it is clear that there is ample evidence to support the finding of the jury, implied from the verdict, that the defendant made an attempt to use a deadly weapon with the intent to commit a violent injury upon the person of the complaining witness, and that at the moment when he made the attempt the defendant had the ability to execute his intent.