People v. Marsh

WOOD, P. J. In a non jury trial defendant was convicted of assault with a deadly weapon, a felony. He appeals from the judgment.

Appellant asserts that the evidence is insufficient to support the judgment.

On April 28, 1962, about 7 p.m., while James Hill was in a café, the defendant came to him and said that he wanted some money, and that he would give it back. Hill gave him $2.00. Then defendant took a roll of money from his pocket and said, “I really didn’t need it, but I just wanted to get some of yours.” Hill asked defendant to return his money. Defendant, after saying that he was going to get some change, went into a market which was about 100 feet from the café. Hill went to the market and waited outside for defendant to return. Hill testified that when defendant came out of the market he asked defendant for the money, and [700]■then defendant hit him in the face with something and they started to fight; while they were fighting, the defendant cut him 10 times—he was cut on his chest, face, arm, and leg; the cuts were deep, his nose and lip were ‘‘cut completely through,” and 200 stitches were required; Melvin Hill, the brother of the victim, stopped the fighting; James Hill (victim) did not see a weapon at any time, and did not have a weapon with him.

The testimony of Melvin Hill was substantially the same as the testimony of James (except he did not state how many stitches were made).

The Hill brothers and defendant had been friends for several years.

Defendant testified that while he and the Hill brothers were in the café he asked James Hill for a loan of $2.00; the loan was made, and defendant said he would pay the money back “tomorrow”; then Melvin said something to the effect that James would not get his money back; when they went outside the café, James grabbed defendant’s hat and said he would keep it for the $2.00; then James hit defendant with his fist and knocked him down; the manager of the café came out and picked defendant up; he (defendant) did not go into a market; later, when defendant was in front of the market, James grabbed him, said that he was going to kill him before the night was over, and then started fighting; the brothers kicked and beat him; he (defendant) did not use a knife in the fight, nor see a knife or see anyone get cut.

On cross-examination, defendant said that oh the night of April 29 (the next night) he went down (to the- police station) and gave himself up because he heard the police were looking for him; Officer Hixon was there at that time; and defendant told how it happened. The deputy district attorney asked defendant if at that time he made a certain statement (which alleged statement the deputy then recited or read). The alleged statement was in substance: It started over $2.00. When defendant came out of the café the brothers jumped him and nearly knocked him out. When he asked who hit him this guy (James) said he did, and James stayed there with his hand in his pocket and said he was going to kill defendant. The brothers had killed one of his best friends. When they started to fight, Melvin came over and kicked defendant. The next thing defendant knew he was lying on the ground, and he found the knife lying there,