Knowing the gun to be loaded, defendant herein intentionally took it out of a place of comparative safety (a paper sack), putting it in his belt where it would be easily available to his use, and carried it into a crowded beer tavern, one of the most likely places in which an altercation could start. The defendant stayed approximately five hours in the tavern, a place which became increasingly crowded, and in which people were drinking. Defendant was familiar with Bob’s Place and the type of people frequenting it and went there purposefully to seek out the type of persons who would be interested in buying a firearm. Defendant, after a preliminary verbal skirmish with Wallis, did later actually become engaged in an altercation with him, at which time the tavern was crowded with people. Defendant had often been to Bob’s Place and knew its location and proximity to occupied premises. Under these circumstances, a man carrying a heavy, loaded revolver, which he knew or should have known was ready to fire, into a crowded beer tavern across from an occupied church, created a high risk of death to persons in and out of the tavern, who were within firing range. His subsequent use of the loaded gun which he had made easily available to himself, even in self-defense and as a bludgeon rather than a firearm, in the crowded room, created even a greater risk of death or injury to innocent persons. Clearly these circumstances justified any finding of the jury that the defendant’s acts were committed ‘without due ‘caution and circumspection’.’
Defendant, having been in the army, was familiar with firearms and had the gun three weeks but at no time inspected it, tested it, or removed the bullets. He did, however, know it was loaded. He denied it was cocked but the jury could well have believed otherwise. To have fired, it must either have been cocked or defective. He had never examined the gun.
If, on the other hand, the jury found there was no self-defense and an assault existed but the use of the gun on Wallis in the manner indicated by the record was not such as to constitute it a ‘deadly weapon’ within the meaning of section 245, Penal Code, the record likewise supports the conviction, on the theory the killing occurred in the commission of an unlawful act, not amounting to a felony.
A deadly weapon is one likely to produce death or great bodily injury. However, the deadly character of the weapon may depend on the manner in which it is used, in which case the determination is one for the jury under proper instructions.
Defendant did not use the gun as a firearm but as a club or bludgeon. Whether it constituted a deadly weapon as to Wallis was for the determination of the jury. If the jury under the instructions given did not believe the revolver, as used in connection with Wallis, constituted a deadly weapon as to him then, if the evidence is sufficient to support a finding of unlawful assault, the killing of Mrs. Glenn constituted involuntary manslaughter.
An assault is ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another’, and constitutes a misdemeanor. A battery, also a misdemeanor, is a willful and unlawful use of force or violence on the person of another.
Fourth Amended Complaint Asserted that Res Judicata Did Not Apply
