People v. Gaeta

FORD, J. The appellant was convicted of the crime of assault by means of force likely to produce great bodily injury (Pen. Code, § 245), in a trial by the court without a jury, a trial by jury having been waived. He appeals from the judgment of conviction and from the order denying his motion for a new trial.[1]

The appellant states his contention as follows: “The court [831]erred in finding that appellant did not act in self defense at the time of the alleged violation of Penal Code, section 245 and that the force used by appellant was excessive so as to constitute a violation of Penal Code, section 245—assault by means of force likely to produce great bodily injury.” Accordingly, the evidence will be summarized.

The evidence of the prosecution was that on the early morning of October 25, 1958, William V. Jordan, Maurice B. Quigley and Mary Paul left a restaurant on Olvera Street in Los Angeles and proceeded to the place where their automobile was parked. As Mr. Jordan was walking along, he was hit over the head by a bottle and was knocked unconscious. He suffered a skull fracture and his right eye was later removed by surgery. While neither he nor Mr. Quigley saw the person who struck Mr. Jordan at the moment he was hit, Mr. Quigley saw the appellant running away and apprehended him on the premises of a gasoline station. Ben Davidson, a college student, witnessed the incident. He saw the appellant hit Jordan over the head with a bottle which was thereby shattered. The appellant had taken the bottle from a case of bottles near a food stand and had walked about 25 to 35 feet with it. He came up behind Jordan, swung the bottle and hit him above the right eye, his arm coming “around from in the back to the front. ’ ’ There was no struggle between the appellant and Jordan before the blow was struck. Davidson joined Quigley in apprehending the appellant. At that time the appellant had a bruise above his left eye and the seam of his coat was ripped. Both Jordan and Quigley denied that there had been an altercation with the appellant a short time before in front of the restaurant. An officer, William H. Keefer, who arrived on the scene, testified that the appellant had abrasions on his chin, nose, forehead and arm and that blood was visible on his nose, chin and arm.