People v. Ortiz

LANGDON, P. J.

This is an appeal by the defendant from a judgment and order denying his motion for a new trial after a conviction of simple assault upon an information charging defendant with assault with a deadly weapon.

The facts appearing from the record are substantially as stated by the appellant. On August 16, 1922, the defendant saw his wife leave their home in San Francisco, California, and take a street-ear going to the waterfront. Pefendant is a stevedore by occupation and had left his home in the morning ostensibly to go to his work, but instead of doing so he had placed himself in a position where he could watch his home. In an automobile he followed his wife to the Ferry Building in San Francisco and saw her meet Albert Donaso and proceed with said Donaso back to her home. Defendant then went to the police station and asked the aid of the police to have Donaso ejected from his home, but was informed that it would be necessary for him to secure a warrant ¡before the police department could aid him. Defendant then left the police station, went directly to his home, and, finding the front door locked, went around to the window of his bedroom, broke a pane of glass, opened the window and entered his home. He found his wife, her aunt, and Donaso drinking wine together in the kitchen while they were preparing food for their lunch. When the defendant entered the kitchen the two women fled from the house and defendant and Donaso engaged in a struggle in which Donaso was repeatedly cut with a pocket-knife.

[156]

The first objection made by the appellant is that the court erred in sustaining the objection of the district attorney to a question asked by counsel for defendant of the witness Bonaso, as to where he first met the wife of defendant on the day of the assault. At the place in the record to which we are referred by appellant we find that the question was answered without objection, the following appearing: “Q. Where did you first meet Mrs. Ortiz on that day? A. Down to the wharf—on the Vallejo boat wharf.” The next question asked was: “Q. Who was with her, if anyone?” An objection was sustained to this question. The materiality of the question is not apparent to us, but, nevertheless, the jury was informed upon the question of who accompanied Mrs. Ortiz to the Perry Building by the testimony of her husband, who stated that he saw his wife leave the house with her baby and take the street-car to the waterfront.