PEOPLE v. ALEXANDER (1940)

Appellant, in his petition for a rehearing, suggests that this court in its recital of the facts has failed to indicate the conflict in the evidence. Upon appeal, as pointed out in People v. Dukes, 90 Cal.App. 657, 266 P. 558, all intendments favor upholding the judgment, and the evidence is to be viewed in the light most favorable to the prosecution, and the jury, having found appellant guilty, it must be assumed the jury believed such testimony as pointed toward his guilt.

In the case at bar the testimony of appellant was that he went to the home of his wife to shoot himself in her presence, and in his attempt to get the revolver from his pocket or on account of his poor aim, the gun was discharged, missed appellant, and the bullet passed over the head of his wife. This theory was disbelieved by the jury. It should be kept in mind, therefore, that our narrative of what took place was gathered from what the jury must have believed the facts to have been, and not the construction placed thereon by appellant.

The words “meaning the shooting at his wife” in the paragraph beginning “when asked by the police why he did it” may be stricken from the opinion.

Rehearing denied.

PER CURIAM.