Opinion
Hearing Granted by Supreme Court Nov. 16, 1933.
Appeal from Superior Court, Los Angeles County; Isaac Pacht, Judge.
Harry A. Hanson and John H. Tillotson were charged with assault with a deadly weapon, defendant Hanson was convicted and he appeals.
Modified, and cause remanded, with directions.
COUNSEL
Gerard Remington and Robert E. Crowley, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and Lionel Browne, Deputy Atty. Gen., for the People.
OPINION
YORK, Justice.
Defendants were charged in an information filed by the district attorney with the offense of assault with a deadly weapon. Upon trial, the jury returned a verdict of guilty of the crime charged in the information as to appellant, and of simple assault as to the defendant Tillotson. This appeal is taken by defendant Hanson from the order denying his motion for a new trial and from the judgment of conviction of assault with a deadly weapon.
It appears from the evidence that in the early morning of January 3, 1933, when returning home from delivering papers on a paper route of defendant Tillotson, the defendant Hanson got out of the car at the rear of a Safeway store in the city of Los Angeles, picked up a box of tomatoes from the rear platform of the store and placed it in the back of the car, whereupon a police officer stepped up to defendant Hanson and placed him under arrest. The officer marched appellant back to the machine and told defendant Tillotson to get out of the car. The officer then placed one handcuff on appellant, and holding his gun in his right hand attempted to handcuff the right hand of defendant Tillotson. Appellant snatched the officer’s gun, at the same time calling upon Tillotson for help, and in the struggle that then took place between the officer and the two men, the gun was discharged, injuring the officer’s hand. The officer was thrown to the ground and the two men with the gun in their possession left the scene of the crime, not to be apprehended until several weeks later, when they were placed on trial before a jury with the result above stated. Defendant Tillotson is not a party to this appeal.
It is contended by appellant that the evidence shows that the verdict of assault with a deadly weapon is not sustained by the facts, and that defendant could only be guilty of simple assault because of lack of intent or attempt; also, that intent is a necessary ingredient of the crime of assault with a deadly weapon or even simple assault, and that the court erred in refusing to so instruct the jury.
Appellant makes the point that the evidence clearly shows that the three men were struggling over the gun and during the struggle the gun was discharged. The officer testified: "The gun was cocked. My main idea was to keep that gun from going off. I had been trying to struggle for the gun. I wanted to keep it from going off. * * * The gun was taken completely away from me and the gun was pointed toward my head and it was in Hanson’s hand and I pushed the gun away with my hand from my head, then the gun went off." The gun had been cocked by the officer, not by appellant.
A review of the evidence discloses that there was not sufficient evidence to find the defendant Hanson guilty of the charge of assault with a deadly weapon, but that the evidence amply supports a verdict of simple assault. The evidence proves, not that Hanson actually intended to fire the gun, but rather that the discharge of the gun was merely an incident of the scuffle. The real assault was a simple assault committed with the fist.
The order denying motion for a new trial is affirmed. Judgment of conviction of assault with deadly weapon is modified, and cause is remanded to the trial court, with directions to enter a judgment against the defendant finding him guilty of assault, and to thereupon pronounce sentence as provided by law.
I concur: CONREY, P. J.
I concur in the judgment: HOUSER, J.