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District Court of Appeal, Second District, Division 1, California.


Cr. 2606.

Decided: December 22, 1934

Lloyd S. Nix, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.

Defendant appeals from a judgment of conviction rendered by the trial judge, sitting without a jury, of the crime of “assault with a deadly weapon with intent to commit murder,” and from the court's order denying his motion for a new trial.

The three points raised on the appeal all go to the general ground of insufficiency of the evidence to support the judgment. While it is true there is no testimony of any eyewitness to the shooting that defendant was the one who fired the shots, there is sufficient circumstantial evidence to bring the crime home to him.

As to the element of “intent to commit murder,” the fact that six shots penetrated the body of the victim and other evidence of happenings which preceded the shooting abundantly supports the implied finding that the shots were fired with the intent to commit murder. The testimony offered by defendant in support of his attempt to establish an alibi is subject to the same rules as any other testimony. The record discloses circumstances which justified the court in refusing to believe this testimony. We find no merit in the appeal.

The judgment and order denying motion for a new trial are affirmed.

I dissent. The material facts upon which the judgment of conviction of defendant was based are that on the day on which the shooting occurred, at an hour between 12:30 and 1:30 o'clock a. m. thereof, but at no time thereafter, defendant was seen at a certain public café and amusement resort; that at such place, but at a time four and one-half hours after defendant had departed therefrom, to wit, at about the hour of 6 o'clock a. m., at which time about 75 other persons were there present, the shooting of the individual whom defendant is charged with having shot took place; and that at about 9:30 or 10:30 o'clock a. m. of the same day defendant was arrested on a charge of driving an automobile while he was intoxicated, at which time he was in the possession of an automatic pistol that, according to “expert” testimony, at most shows was the “gun” from which the shots were fired. The only other pertinent evidence in the case consisted of an explanation by defendant (in which he was largely corroborated by another witness) to the effect that, at about 7:30 o'clock a. m. of the same day on which the shooting occurred, he had bought the “gun” from a man about 6 feet 7 inches tall, by the name of Jerry Hoffman, whom defendant had known for three or four years; also the testimony given by several witnesses, in substance that to their personal knowledge, at the time in question, defendant was not at the scene of the shooting, but that he was in their company at a considerable distance from the café and amusement resort where the shooting occurred. It may also be noted that the identity of the man who actually did the shooting may be inferred from the testimony given by one witness that “in a few seconds” after the shooting occurred he saw “a tall guy running out the back exit where some doors were open”; which testimony is somewhat corroborative of the explanation given by defendant regarding his possession of the “gun” from which the shots were fired, and especially of the identity of the “tall” person from whom defendant purchased the “gun.” Nor was any evidence adduced by the prosecution that would tend to show motive for the shooting by defendant. To the contrary, although it appeared that at the instant when the victim was shot he must have been facing the person who shot him, and that the victim received six bullet wounds as a result of the encounter, the victim himself testified in substance that he had not “been doing anything,” nor was he “in any argument with anybody previous to the shooting”; that he knew of “no reason for anyone doing it”; that he did not know defendant; that he could not identify defendant as the person who had shot him; and that before the day of the trial of the action against defendant he had never seen defendant.

More simply stated, at most, the substance of the only evidence that tended to prove the guilt of defendant was that four and one-half hours before the shooting occurred defendant was in the locality of, or near the place where, the crime was committed; and that eight hours thereafter he had in his possession the “gun” from which the shots were fired. The fact that the judge before whom defendant was tried elected to disbelieve the explanation given by defendant as to the manner in which and the person from whom he had acquired the “gun,” as well as each of the several witnesses by whom defendant presented his “alibi,” certainly furnishes no additional incriminating evidence against defendant.

It is of course apparent that, if the evidence was legally sufficient to establish the guilt of defendant as to the commission of the crime of which he was charged, and, instead of the victim of the attack having survived, he had died as a result thereof, on his trial for murder, by the same evidence that was presented on the trial of the instant case, defendant should have been convicted of the crime of murder–a result which to my mind would be, if not unthinkable, at least wholly unjustified.

In my opinion, the evidence adduced by the prosecution was insufficient to support the judgment that was rendered against defendant.

HAHN, Justice pro tem.

I concur: YORK, J.