People v. Stephens

KNIGHT, J. Appellant was charged with having committed a felony—an assault with a deadly weapon; and he was found guilty by a jury of the lesser offense—simple assault. The sentence was that he pay a fine of $250 or in default of such payment be imprisoned in the county jail one day for each five dollars of said fine, not exceeding, however, thirty days. From the judgment of conviction and the order denying his motion for new trial he has taken this appeal.

The alleged assault was committed on a police officer, named Anderson, in Oakland on July 16, 1934; and the sufficiency of the evidence to sustain the conviction is not questioned. The grounds urged for reversal are that the court erred in refusing to give several instructions proposed by appellant, and in ruling upon the admissibility of certain testimony.

The circumstances under which the assault was committed, as shown by the evidence adduced on the part of the prosecution, were as follows: Shortly after the noon hour on the day in question, eight or ten police officers, including Anderson, were sent by their superior officers to 645 Twenty-second Street, in response to a report received [35]at police headquarters that there was a disturbance there— that a number of communists armed with clubs were just starting to leave the place. Upon reaching the premises Anderson proceeded up a flight of stairs and as he opened the door at the top of the stairs appellant, who was standing just inside the door, struck at Anderson’s head with a club or board in which there was a protruding nail. The officer turned his head quickly to one side to dodge the blow and the force of it landed on his shoulder; whereupon he grappled with appellant and with the aid of his riot stick tried to restrain him. Several other officers came to Anderson’s assistance, but appellant succeeded in fighting his way loose and ran down the stairs. He was caught as he reached the street, however, and taken to prison. Testifying in his own behalf, appellant denied having struck at the officer at all, or having had in his possession at any time any club, board or other like weapon. He stated that hearing a commotion on the stairway he opened the door slightly, and as he did so someone outside pushed it open wider; that he then stuck his head through the doorway to see what was going on and instantly he was struck over the head a number of times by the police with clubs, blackjacks and fists; that he fell to the landing, and before he could arise was kicked by the police, following which he was taken to jail.