People v. Mendez

CURTIS, J.

The defendant was charged with an assault with a deadly weapon with intent to commit murder. He was found guilty of an assault with a deadly weapon and appeals from the judgment of conviction, and from an order denying his motion for a new trial.

The defendant and the complaining witness, Rodriguez, were on friendly terms, and on the day of the assault the defendant visited the complaining witness at the home of the latter. While the evidence is conflicting as to just what transpired in the house on the occasion of this visit, there was nothing to indicate that the friendly relations theretofore existing did not continue throughout the entire time the defendant was at Rodriguez’s house. While in the house it was agreed between them that they would retire therefrom and engage in a friendly wrestling contest. They left the house for this purpose in company with Rodriguez’s wife and one Ortiz. On reaching the yard in front of the house they began wrestling with each other, with the result that on the third trial the defendant threw Rodriguez. At its conclusion the latter was desirous of continuing the contest and advanced toward defendant, evidently with this purpose in mind. The defendant retreated a few steps, avoiding Rodriguez, who continued to advance toward defendant. Whereupon, the defendant, when Rodriguez was about fifteen feet from him, drew his pistol and fired, hitting the latter in the groin and inflicting a painful and serious injury upon Rodriguez. The defendant assisted in taking Rodriguez to the hospital, offered to pay the expense of his ' care, and expressed his regret over the affair. The sole defense of the accused was that he pointed his gun at the ground and fired to frighten Rodriguez, and that he had no intention of shooting him or of injuring him in any manner.

[726]

Appellant submitted five instructions to the court, all of which were refused. The court also gave the following instruction at the request of the prosecution: “In considering the following definitions (of the several different kinds of assaults) you should remember that in every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence. ’ ’ Appellant now assigns as error the action of the court in refusing to give the five instructions proposed by him, and in giving the instruction above set forth, offered on behalf of the prosecution.