People v. Blackshear

HERNDON, J. Appellant was convicted by a jury of a violation of Penal Code, section 245, assault with a deadly weapon. He appeals from the judgment and from the order denying his motion for a new trial.

It is not disputed that on the night of May 21, 1959, appellant, using a high-powered rifle, shot and seriously wounded the complaining witness, one Buffington. However, in support of his primary contention that the jury’s verdict is not supported by the evidence, appellant argues that Buffington was the aggressor in the physical encounter that preceded the shooting, and that appellant acted justifiably in self-defense and in defense of his home.

For reasons which will shortly appear, it is unnecessary to narrate here all of the mass of conflicting testimony concerning the circumstances leading up to the violent encounter between appellant and Buffington which culminated in the shooting. In our recital, we take cognizance of the familiar rule that we must view the evidence in the light most favorable to the verdict and judgment.

It appears that on the occasion in question Buffington went to appellant’s residence on East 47th Street in Los Angeles looking for a girl friend with whom he had quarreled earlier in the evening. Evidently she had gone to appellant’s home in fear that Buffington intended to do her physical harm. Appellant went to the front door of the apartment and informed Buffington that the woman would not see him. An argument developed while the two men stood opposite each other in the doorway.

According to appellant’s version, Buffington then forced his way into the apartment. According to Buffington’s version, he was involuntarily drawn into the apartment when he grappled with appellant after the latter had made a movement as if to draw a knife. In the course of a violent struggle in the living room of appellant’s apartment, Buffington suffered a knife wound in the chest and a cut on his hand. The com[73]batants disengaged momentarily and appellant went to a bedroom closet and procured a rifle. Buffington testified that when it “dawned” on him that appellant had a rifle, he immediately ran from the apartment. Appellant followed in pursuit and while Buffington was running and “turning to his left to go between a private residence and an apartment house” appellant aimed and fired. Buffington fell seriously wounded. The distance between Buffington and appellant at the time the shot was fired was estimated at 50 feet or more.