People v. Emme

FRICKE, J.,

pro tem.

Appellant was convicted of the crime of assault with a deadly weapon, committed upon her husband, Frank Emme. The only plea entered by appellant was that of not guilty. One Fred R. Pierce was originally joined as a co-defendant, but at the conclusion of the case in chief of the state the court, on motion of the district attorney, dismissed the information as to Pierce, the evidence being insufficient to sustain a conviction against him.

It appears that appellant and Frank Emme were married in 1920 and about two years later took into their home a baby girl, whom they treated as their own, though no proceedings for adoption were ever taken. In February, 1931, the husband obtained an interlocutory decree of divorce. Thereafter, on February 25, 1931, Frank Emme, who had been appointed the guardian of the child by the superior court, placed her in a convent in Pomona. Shortly before midnight on April 18, 1931, appellant accosted the complainant, Frank Emme, as he was about to enter his automobile, and after some conversation as to whether he would take her home she got into the back seat of the car. After the car had started there was some conversation concerning the child in which the complainant told appellant that she

[11]

could not see the child. Thereupon appellant called complainant a vile name, told him she had a gun in her hand and that she would blow out his brains if he made a false move, and ordered him .to drive to Pomona and get the child. He argued with her and' she pressed a loaded revolver against his back and ordered him to drive faster. Arriving in-front of a restaurant the complainant stopped his car and attempted to get out, whereupon appellant pulled the trigger of the gun, which she had concealed in a glove, but the weapon failed to function. Complainant then jumped out of the ear and ran into the restaurant, and as he did so appellant fired a shot at him, but which missed him. After complainant arrived inside the building appellant, who had followed close behind him, fired another shot, but again missed. At this point she was overpowered with the assistance of bystanders and the revolver taken away from her. Appellant testified that she had secured the revolver three days before the day of the shooting, that she was told and believed that it was loaded, that she discharged it in the direction of the sidewalk after the car stopped at the restaurant, but denied having pointed the weapon at the complainant. As to the second shot, fired inside the restaurant, appellant confessed a lack of memory. It is, however, thoroughly established that the first shot broke the glass in the front of the restaurant toward which complainant was running, and the testimony of several of the persons in the restaurant at the time conclusively shows that appellant aimed and shot at the complainant while he was running away from her and toward the rear of the restaurant. Any verdict other than a verdict of guilty would have been a miscarriage of justice.