People v. McCoy

• Citation: 181 Cal.App.2d 284,5 Cal.Rptr. 107
• Decision Date: 25 May 1960
• Docket Number: Cr. 3685
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lentonard F. McCOY, Defendant and Appellant.

Page 107

5 Cal.Rptr. 107

181 Cal.App.2d 284

PEOPLE of the State of California, Plaintiff and Respondent, v. Lentonard F. McCOY, Defendant and Appellant.

Cr. 3685.

District Court of Appeal, First District, Division 1, California.

May 25, 1960.

C. Fitzgerald Eschwig, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Preble Stolz, Deputy Atty. Gen., for respondent.

DUNIWAY, Justice.

Appeal from the judgment of conviction and from an order denying motion for a new trial. At the trial, appellant was represented by the public defender; he is represented on this appeal by court appointed counsel. We find no error.

Appellant was convicted on two counts of violation of Penal Code, § 217, assault with a deadly weapon with intent to commit murder. It is contended, inter alia, that there was insufficient evidence to support a finding that he had a present ability to inflict the intended harm. We therefore briefly state the facts bearing on this issue, as revealed by the transcript.

Following a hit-run accident, in which appellant was the hit-run driver, appellant temporarily abandoned the car that he was driving. A police officer (Simmons) was supervising the towing away of the car, and had left sitting in his patrol car one Watkins, a witness to the accident who had pursued appellant and notified the police. Appellant approached Watkins and offered him $50 to tell the police that appellant's car had been in its then location since some time before the accident. Watkins refused, and appellant threatened to kill him.

After Simmons returned to the police car, he asked appellant's name, checked it with headquarters by radio, and told appellant to get in the back seat of the patrol car. Appellant refused. The officer then reached for his radio, when appellant jumped him. Appellant got the officer's gun, knocked the officer to the floor of the car and, with his hand on the stock and his finger on the trigger, announced to Watkins, 'I will kill both of you.' He made a motion indicating an attempt to fire the gun, which was fully loaded. Watkins grabbed the gun, and a fierce struggle ensued, during which Watkins was severely bitten by appellant on the arm and thumb, once obtained possession of the gun, lost it to appellant, again regained possession, and finally subdued appellant. After being handcuffed, appellant said to Watkins, 'You'se one nigger I'm going to kill.' The testimony of Watkins indicated that on two different occasions during the fracas appellant secured exclusive possession of the fully loaded revolver, and that during most of the struggle between appellant and Watkins appellant had control of the weapon and was prevented from using it only by Watkins' determined interference. There can be no dispute that the evidence was sufficient to show that appellant held in his hand the means of committing the murders which the jury found he intended and Watkins' intervention to avert tragedy cannot efface this fact. People v. Piercy, 1911, 16 Cal.App. 13, 116 P. 322.

Appellant's next point is that he was charged in the information and held to answer on a complaint in the municipal court on a charge of violation of section 245 of the Penal Code, and that thereafter the district attorney illegally charged him in the information filed in this action with violation of section 217 of the Penal Code, upon which charge he was tried in this case, citing People v. Seitz, 100 Cal.App. 113, 279 P. 1070 [miscited as Cal.] and People v. Nahhas, 121 Cal.App. 428, 9 P.2d 278 [miscited as People v. Mahas, 121 Cal. 128].

Counsel's contention is difficult to decipher. Since the cases which he almost cites deal with unsuccessful attempts to secure a reversal of a conviction on appeal on the ground of claimed improper amendments of the information charging the crimes, it would appear that he is asserting, not that two informations were filed at the same time for the same act, one without benefit of a preliminary examination, but that the district attorney impermissibly amended the information to change the offense charged from assault with a deadly weapon (Pen.Code, § 245) to assault with a deadly weapon with intent to commit murder (Pen.Code, § 217). Whatever counsel's point is, it has absolutely no support in the record.

The clerk's transcript indicates that only one information was filed in this action, and in that information appellant was charged with the two violations of section 217 of which he now stands convicted. Apparently the sole reason for counsel's raising this issue is an indication in the testimony at the trial that after his arrest appellant was booked for investigation of assault with a deadly weapon and hit-run driving (Veh.Code, § 20007, former § 483).

An information may be amended by the district attorney without leave of the court at any time before the defendant pleads or a demurrer to the original information is sustained, so as to charge any offense shown to have been committed by the evidence taken at the preliminary examination. Pen.Code, § 1009. The...