People v. Bloemsma, Cr. 6542
| Decision Date | 11 June 1959 |
| Docket Number | Cr. 6542 |
| Citation | 340 P.2d 350,171 Cal.App.2d 261 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Herman BLOEMSMA, Earl Carter Tripp and Donald Marion Andersen, Defendants, Earl Carter Tripp and Donald Marion Andersen, Appellants. |
Richard A. Haley, Hollywood, for appellants.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.
Each appellant in this case has appealed from a judgment wherein each defendant was found guilty of assault.
In an information filed in Los Angeles county on July 25, 1958, Herman Bloemsma, Earl Carter Tripp and Donald Marion Andersen were charged with violating section 245, Penal Code (). In count I of the information each defendant was charged with assaulting Delmo K. Sheeley, and in count II each defendant was charged with assaulting Bea Patterson. On July 30, 1958, each defendant was arraigned and pleaded not guilty as to each count. Trial was set for, and did commence before a jury on September 2, 1958, and held through September 4, 1958.
The jury returned the following verdicts:
(1) Herman Bloemsma was found guilty as charged as to (count I) Sheeley, and not guilty as to (count II) Patterson.
(2) Tripp was found guilty of misdemeanor assault (a lesser included offense) against Sheeley, but not against Patterson.
(3) Andersen was found guilty of misdemeanor assault (a lesser included offense) against Sheeley and Patterson.
On the court's own motion, after a motion for a new trial by Andersen, the charge with reference to Sheeley (count I) was dismissed as to Andersen.
An application for probation was made by each of the defendants. On October 8, 1958, probation was granted to Tripp for three years, on condition that he spend the first one month in the county jail. Andersen received three years' probation on condition that he spend the first two months in the county jail. The appeal is from the judgment, and we will consider it as though it were from the order granting probation, in each instance. Bloemsma did not appeal. In short, Tripp stands convicted for an assault (misdemeanor) against Sheeley, and Andersen stands convicted for an assault (misdemeanor) against Patterson.
On June 4, 1958, at about 11:30 o'clock p.m., Sheeley, a Long Beach police officer, had stopped at Camm's, a bar operation on Lakewood Boulevard, and was seated on the first seat next to the door, drinking from a 7-Up bottle. The bar in the place of business is L-shaped, and was 3 feet 7 1/2 inches high, and 3 feet 3 and 1/2 inches wide. When Sheeley arrived at the establishment, he was the only person seated at the bar; however, Bea Patterson, the waitress (who was the former wife of Sheeley) and two men were playing shuffleboard.
At or about such time, Andersen entered the place of business alone and ordered three beers from Bea Patterson. Andersen said, in effect, that two friends were with him and that they would join him very shortly. Andersen was seated around the corner of the bar about six to eight feet from Sheeley. Bloemsma and Tripp entered the place of business and seated themselves at the bar on the same side where Andersen was seated, and between Andersen and Sheeley.
Miss Patterson then observed 'who they were and proceeded to take the drinks away from them.' She stated to the three defendants, 'that they knew they weren't supposed to be in there and that they knew better, and she stated that they couldn't drink while she was on duty,' that they were intoxicated and she would not serve them, and 'they were 86.' She then took back the beer which she had previously placed upon the bar and poured it down the drain. Andersen vigorously protested and used vile, vulgar and profane language in speaking to Bea Patterson about the matter. She advised Andersen that she had no authority to return any money, and that he would have to see the manager. Andersen was dissatisfied with any such an arrangement, and stated that he was going to get his money back from her, and also at the same time, questioned her parentage. Sheeley saw Andersen 'make a pass at her,' '[s]winging his arm at her.' Sheeley then got up from where he was seated and went over to Anderson and told him to watch his language, and showed the three men his police badge. Bloemsma told Andersen to 'Knock it off,' and said in effect that it would be cheaper to be quiet, that he, Andersen, had been drinking and that he would be booked for drunk if he was not careful. Sheeley returned to the seat he had theretofore occupied and each of the defendants sat down at the bar; the latter three discussed Sheeley, and he heard one of the defendants say that he was a '* * * damn cop, * * * off duty, and he has no authority.' Andersen was largely concerned about, and complained of the removal of the beer, and Bloemsma was encouraging his companions to leave 'before the sheriffs arrived.'
The defendants then stood up to leave the establishment, when one of the defendants said something to Sheeley. Bea Patterson indicated to Sheeley that he should pay no attention to them, and then Andersen leaned over the bar, told her to keep her mouth shut, clenched his fist and struck her.
Bea Patterson stated that Andersen hit her on the left side of her fact with his fist; that at such time she was standing behind the bar and he was across the bar from her; that the blow caused swelling and discoloration on her face and resulted in the chipping of two teeth.
At about the same time as Bea Patterson was being struck, Tripp struck Sheeley below the chin and on the throat. Bloemsma hit Sheeley on the face just below the eye with a 7-Up bottle, breaking and crushing the facial area. A doctor described the injury as '[t]he entire face, * * * was crushed down, * * * on this side like it was split * * *.'
The defendants introduced into evidence many photographs taken on August 15, 1958, of the inside of the establishment and the bar. These pictures showed, among other things, some exacting measurements of the width of the bar, the distance from the top of the bar to the floor, and a railing at the base of the bar about 6 inches wide and 12 inches from the floor.
The prosecution's case was presented in chief on September 2nd. At 9:45 o'clock a.m., on September 3rd, the defendants commenced the presentation of evidence in their behalf. During the latter part of the...
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