People v. Price

COOPER, P. J.

The information in this case charges the defendant with the crime of assault with a deadly weapon, with malice aforethought, and with intent to kill one Toomey. The jury returned a verdict finding the defendant guilty of the lesser offense of assault with a deadly weapon. He was thereupon sentenced to pay a fine of $700, or in default of payment that he be imprisoned in the county jail in the proportion of one day’s imprisonment for every $2 of such fine. His motion for a new trial was denied, and this appeal is from the judgment and order.

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We have examined the evidence, and it is not deemed necessary to discuss it, but only to say that we find it sufficient to sustain the verdict of the jury.

There was no error in the court’s refusal to give the defendant’s requested instruction as to the law pertaining to an officer making an arrest without a warrant, and as to the right of the defendant to resist an unlawful arrest. If it be conceded that Toomey, the constable, had no warrant or legal authority for making the arrest, such fact would not in any way excuse the defendant for shooting at and wounding the said constable. It is sufficient to say that the constable approached the defendant in a peaceable manner, informed him that he was a constable and that he was performing his official duty, and at the same time showed his badge of office. He did not assault defendant in a violent manner, or attempt in any way to injure him. There was no excuse for defendant drawing his pistol and discharging it twice, one of the shots wounding the constable. In fact, it would be a pernicious doctrine to hold that an officer, known to be such, while attempting to make an arrest, could be shot down, and the ■defendant or person who did the shooting allowed to go free because it might, upon due investigation, be discovered that the officer did not in fact have proper authority for making the arrest.

It is claimed that the court erred in instructing the jury as follows: “If you should therefore find that the defendant, on the streets of the town of Santa Clara, on February 28, 1905, in the presence of constable Toomey, and, of course, in the presence of two or more persons, did draw a deadly weapon as defined by the court, or exhibit a deadly weapon in a rude or angry and threatening manner, and that such deadly weapon was not drawn or so exhibited in self-defense, the court instructs you that officer Toomey had a right and authority, and it was his duty, to arrest the defendant.” It is claimed that the instruction is vicious, and that its vice consists in the fact that the word “or” was used instead of “and,” and as the statute uses the words “rude, angry and threatening manner” the instruction should have followed the language of the statute. As we have before stated, the facts of this case show the defendant to have been a wrongdoer without regard to the question as to the right of the officer to make the arrest. If, as contended, the deadly weapon could