People v. Womble

Defendant appeals from a judgment following a verdict of guilt in a prosecution for assault with a deadly weapon, a .32 automatic pistol, upon the person of one Robert J. Breese. Upon his appeal he challenges the sufficiency of the evidence to establish guilt and complains of error in instructions that were given and in the refusal of an instruction. It is claimed by defendant that there was not sufficient evidence to prove that the gun was loaded at the time of the alleged assault or that it was used in the assault.

Defendant was the proprietor of a cafe located on the highway several miles out of Oxnard. Robert J. Breese, a seaman first-class, and Harold H. Brooks, a coxswain, who were stationed at Port Hueneme, being on liberty, entered the bar of defendant’s cafe about 6 o’clock in the evening. Defendant’s wife and two others were seated there, a bartender was behind the bar, and a waitress entered the room and served Breese and Brooks a drink of whiskey. Defendant

There was ample evidence to show that defendant was the aggressor. He testified to having ordered the sailors out of his place because one of them remarked, when Mrs. Womble was presented with a cake, “If I had a redhead like that I would buy her a cake too.” Defendant testified that he considered the remark an insult. While he testified that he had had the gun in his pocket at all times, he also testified that he usually kept it in the room from which he got his coat immediately before the assault. The fact that he followed the sailors out of the place indicated that he was not averse to having further trouble with them. The gun was loaded, the safety was off, and the circumstances indicated that defendant was prepared to shoot when he followed the boys out of the place. The gun was not examined by anyone until some three hours after the affray, and from this fact it is argued that there was no evidence that it was loaded at the time it was taken from defendant. But it was a reasonable inference that it had been loaded when defendant carried it for protection earlier in the day; he did not testify that it was unloaded then or that it had been unloaded later. The manner in which it was used and the fact that the safety was off indicated that it was loaded. From the testimony of the witness Breese which we have quoted, the jury may reason

An instruction was given at the request of the People which correctly defined the term- “deadly weapon.” It is contended that the padlock was a deadly weapon, that the jury should have been instructed that defendant was not charged with using the padlock as a deadly weapon and that he may have been found guilty because he threw the padlock, although it may have been believed that he did not rise the gun. The information, which described the pistol, was read to the jury, the verdict was that defendant was guilty as charged, and in view of the evidence we think the argument is without' merit.

It is claimed that defendant was prejudiced by the giving of two instructions. These are not quoted in the brief nor identified in the transcript except in general terms. We understand they were the following: “In considering the following definitions you should remember that in every crime or public offense there must exist a union or joint operation of act and intent or criminal negligence. . .” This instruction was iri the language of section 20 of the Penal Code. The instruction is criticized because, it is claimed, the jury might thereunder have convicted defendant in the belief that he was guilty of criminal negligence. No useful purpose was served by including in the instruction reference to the element of criminal negligence in a case where that element was not involved. But the only disputed issues of fact were whether defendant used the gun and the manner

The other instruction was the following: “In cases of assault with a deadly weapon, no specific intent is necessary to constitute the crime, and hence it is wholly immaterial whether the party was drunk or sober at the time of the commission of such offense, and intoxication is not a defense in such cases.” The contention appears to be that under the latter instruction the jury might have understood that defendant could be found guilty even though he had no intent to commit an act of assault. The words “specific intent” as used in the latter instruction could very well have been amplified and their meaning made more clear, but the elements of the offense were clearly stated in other instructions and the jury were told more than once that the defendant must be acquitted unless the proof showed beyond all reasonable doubt “that the defendant actually assaulted the other person with the weapon, that is, made the assault with the weapon.” Considering the evidence as to defendant’s conduct, it cannot be said that the instruction was misleading or confusing.

Defendant’s contentions that the testimony of the witnesses Breese and Brooks was inherently improbable and that the verdict was the result of passion and prejudice are answered by what we have already said. It is contended that the court should have instructed the jury of its own motion that they should not be influenced by any feelings of passion or prejudice against the defendant. Presumably the jurors were sufficiently intelligent to know this; if they were not, telling it to them could not have helped much.

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

Desmond, P. J., and Wood (Parker), J., concurred.