Opinion
Docket No. 1716.
May 9, 1933.
APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. Frank M. Ogden, Judge. Affirmed.
The facts are stated in the opinion of the court.
Leo A. Sullivan and A.G. Thompson for Appellant.
U.S. Webb, Attorney-General, and Seibert L. Sefton for Respondent.
THE COURT.
Defendant was charged with the crime of assault with a deadly weapon. A trial by jury was duly waived. He was tried and convicted of the crime, and an appeal was taken from the order denying his motion for a new trial and from the judgment. The ground for the appeal is that the evidence was insufficient to support the judgment.
[1] First, it is claimed that the implied finding that a deadly weapon was used is unsupported.
The victim of the assault was a cab-driver. He received a telephone request to call at the Abbey Apartments in Oakland. He testified that shortly after his arrival there he was assaulted by three men, one of whom was the defendant; further, that he was struck several times with what appeared to be an iron pipe about two or two and a half feet long, its diameter being from one-half to three-quarters of an inch. His head and face were bruised and cut. The driver's testimony as to the circumstances was corroborated by the manager of the apartment house, who was present and who followed the attackers to the street. The latter entered an automobile, which was parked near the entrance, and as the witness approached the automobile one of its occupants threw an iron bar at him. This was produced at the trial. Another witness testified that the defendant was near the apartment house at the time but did not participate in the assault. Defendant also testified that he was in the vicinity but denied that he attacked the driver.
The testimony, which the court believed, was sufficient to support a finding that defendant participated in the assault. The iron bar admitted in evidence is not before us, but the references thereto during the trial, the description by the driver of the instrument used in making the assault, and evidence of the resulting injuries, justified the court in concluding that a deadly weapon was used as charged in the information.
The evidence was clearly sufficient to establish the guilt of the defendant, and no ground for reversal has been shown.
The judgment and order are affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 24, 1933.