People v. Hupp

This is an appeal from a judgment pronounced upon defendant after he had been found guilty of assault with a deadly weapon, with one prior conviction of a felony which he admitted.

The sole question for consideration is whether or not the evidence is sufficient to support the verdict and judgment. Defendant argues that he was only guilty of the misdemeanor defined in section 417 of the Penal Code but not of the felony denounced by section 245 of that code.

The defendant argues that the complaining witnesses attempted to enter his home to arrest him without a warrant; that they were trespassers on his property and that he had the lawful right to protect his property with such amount of force, short of homicide, as might have been necessary to prevent the unlawful invasion of his domicile. (People v. Ross, 19 Cal.App. 469 [ 126 P. 375 ]; People v. Hubbard, 64 Cal.App. 27 [ 220 P. 315 ]; 3 Cal.Jur. 210.)

A decision of this question requires a review of the evidence in the case to determine if the complaining witnesses were trespassers on defendant’s property.

At all times material here, C. H. Hickman and O. M. Sasseen were police officers of the city of Visalia. On the late afternoon of May 15, 1942, Officer Hickman saw defendant in a tavern in Visalia. Defendant was drunk, quarrelsome and invited the bartender to go outside and fight. Officer Hickman told defendant to go home or he would lock him up.

Later in the evening the two officers were patroling the streets of Visalia in a police car. At about 7:40 o’clock they received a radio call ordering them to go to defendant’s house to investigate a disturbance. They were informed that defendant, armed with a shotgun, had chased his son-in-law down the street and had threatened his family.

The two officers went to defendant’s house. As Officer

The cause of the radio call to the officers was a report at the police station by defendant’s daughter and son-in-law to the effect that defendant had chased his son-in-law down the street, threatening him; that he sent for his shotgun with which he was going to prevent his son-in-law and daughter from reporting the affair to the police.

There is evidence to the effect that before the two officers reached his house defendant had armed himself with his shotgun, had loaded it, stating that he was going to shoot the “cops” and save one shell for Ms wife.

It seems to be the theory of defendant that as the officers had no warrant for his arrest they were trespassers on his property; that he had the right to repel their invasion by any means short of homicide.

An officer has the right to arrest a person at Mght without a warrant where there is reasonable cause to believe that he has committed a felony. (Sec. 836, Pen. Code.)

It is a generally accepted rule that where, at night, a peace officer has possession of facts which would cause an ordinarily reasonable and prudent person to entertain an honest and strong suspicion that another had committed a felony, the officer may arrest such person without a warrant. (People v. Kilvington, 104 Cal. 86 [ 37 P. 799 , 43 Am.St.Rep. 73 ].) The question of reasonable and probable cause for the belief must be measured by the facts presented to the officer at the time he is required to act. For a detailed discussion of facts sufficient to justify such reasonable belief, see: People v. Kilvington, supra,; Michel v. Smith, 188 Cal. 199 [ 205 P. 113 ] ; Bate v. Jolin, 206 Cal. 504 [ 274 P. 971 ]; People v. Gays, 54 Cal.App. 460 [ 202 P. 43 ]; Murphy v. Murray, 74 Cal.App. 726 [ 241 P. 938 ],

We can entertain no doubt of the sufficiency of the facts made known to the officers to justify their strong sus

The judgment is affirmed.

Barnard, P. J., and Griffin, J., concurred.