People v. Frank

CRAIG, Acting P. J.

The appellant was charged with the crime of assault with a deadly weapon with intent to commit murder and prior convictions of felonies. A jury returned a verdict of guilty of assault with a deadly weapon. He appealed from the resultant judgment.

The denial of a motion to strike said allegations of prior convictions, and of the defendant’s motion to withdraw his plea with respect thereto, as well as the contention that a plea of former jeopardy on account of such charges entitled the defendant to offer evidence in support thereof, are identical with questions considered in

People

v.

Frank,

Crim. No. 2404 (132 Cal. App. 360 [24 Pac. (2d) 905]), and need not be reviewed here.

The sufficiency of the evidence to sustain the verdict and judgment is attacked by the appellant, but a careful examination of the record does not reveal the discrepancies claimed. There was testimony of two witnesses that upon returning home at dusk during an evening the defendant emerged from the rear of a house, pointed a 38-caliber revolver at one of them, was overpowered, and the weapon was taken from him, after which he escaped.

It is insisted that it was error to present to the jury a charge of an offense other than assault with a deadly weapon. Upon a former trial the defendant was likewise charged with assault with a deadly weapon with intent to commit murder, the crime was fixed by the jury, and was then by them pronounced assault with a deadly weapon. It is conceded on behalf of the People that the defendant should not have been tried again on the original charge, but it is contended that he could not have been prejudiced by the same evidence and the same verdict as had theretofore been recorded against him.

(People

v.

Frank,

130 Cal. App. 212 [19 Pac. (2d) 850].) This cannot be assumed from the subsequent record alone. Having obtained a reversal of the former judgment, the defendant was returned to the superior court for a new trial upon the issues presented to the appellate court on the first appeal.

(People

v.

Frank,

75 Cal. App, 74 [241 Pac. 942];