People v. Owens

HARRISON, P. J.

The appellant was convicted of assault with a deadly weapon with intent to commit murder, and has appealed from the judgment thereon and from an order denying him a new trial.

1. One of the grounds of his motion for a new trial was that the evidence was insufficient to sustain the verdict. His counsel concedes that there was some evidence in support of the verdict, but contends that upon the preponderance of the evidence the jury was not authorized to find that the defendant had any intention to kill Mecartea, the prosecuting witness. There was testimony that the defendant had previously threatened to kill Mecartea; that on the day the assault was made upon him he drove in a buggy to the blacksmith-shop where Mecartea was at work, and requested him to come out into the street; that Mecartea thereupon went out to the street, and the defendant, still remaining in his buggy, said to him that he had come to kill him; that Mecartea told him to go away, that he wished no trouble with him, and returned into the shop; that the defendant thereupon got out of his buggy, drew his pistol, and following Mecartea went into the shop, pointing his pistol at him. As he went into the shop he commenced to villify Mecartea, saying several times rapidly and in an excited manner as he approached him, “I came to kill you, and, damn you, I am going to kill you”; and as he did so stepped ahead, and Mecartea stepped at the same time, and knocked the pistol out of his hands, and they thereupon clinched and fell to the floor. Whether it was the in

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tention

of the

defendant to kill Mecartea was a fact to be determined by the jury from all of the testimony of the witnesses, and we cannot say that their verdict is not amply sustained.

The contention of the appellant that he was intoxicated at the time, and that it is therefore apparent that he did not have such intention, is insufficient to overcome the verdict. There was no evidence that he was intoxicated to such a degree as to destroy his capacity for understanding the nature and effect of his acts and conduct; and it must' also be assumed that the jury took this matter into consideration, and gave to the evidence on that subject its proper weight in determining their verdict.