People v. Thompson

Defendant was convicted in a trial to the court of two offenses of assault with a deadly weapon, one upon Walter E. Sháw and one upon Lawrence C. Merritt, both deputies of the sheriff. Defendant’s motion for new trial and his application for probation were denied and he was sentenced under each judgment to confinement in the county jail for one year, the sentences to run concurrently. He appeals from the judgments and the order denying his motion for a new trial.

The evidence of the People established the following facts: About midnight, in the home of defendant and his wife, defendant, while in a state of intoxication, struck his wife with a shoe, inflicting a wound which bled. Mrs. Thompson telephoned the sheriff’s office and deputies Shaw and Merritt, in uniform, responded, conversed with Mrs. Thompson, who had her head wrapped in a bloody towel, entered the house with her and. proceeded to the threshold of the bedroom where defendant was seated on the bed. Mrs. Thompson requested the officers to arrest defendant for intoxication and disturbing the peace; Officer Shaw replied that he could not arrest the defendant, not having been present when the altercation occurred. An argument with defendant ensued. Defendant challenged the officers to arrest him but the latter made no attempt to do so. Defendant removed his coat and, as developed on cross-examination of one of the officers, acted in a belligerent manner, as if he wished to fight. He then

The only point argued on the appeal is that the evidence is insufficient to prove assault with a deadly weapon. In his opening brief, after reciting the evidence substantially as we have given it, his attorney says: "This counsel feels that the facts herein shown do not indicate that any agency intervened to make the defendant put down his pistol and it cannot be said from the facts herein shown that the defendant ever intended the pointing of the gun to be more than a mere idle gesture.”

It has long been settled, and has not been questioned in any case with which we are familiar, that acts such as those above related constitute the offense of assault with a deadly weapon. In People v. McMakin, 8 Cal. 547 , a conviction of assault with a deadly weapon was affirmed upon evidence that the accused pointed a loaded gun toward the prosecuting witness and demanded that he leave the premises immediately. We refer to pages 548 and 549 of the opinion and adopt them as a part of our own. Although defendant here did not fire the gun, his demand that the officers raise their hands was an implied threat. While he did not point the gun directly at them or either of them, it was in a position to be used instantly. Although the implied threat was that he would shoot if the officers did not raise their hands, he was demanding immediate compliance. Whether he intended to shoot if they failed to comply was to be determined from his conduct. His testimony was not that he pointed the gun without intending to use it, but that he did not take it from the drawer or have it in his hand. The argument that the offense of assault with a deadly weapon is not established

The judgments and order are affirmed.

Wood, J., and Vallée, J., concurred.