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People v. McMakin

Supreme Court of California
Oct 1, 1857
8 Cal. 547 (Cal. 1857)

Summary

upholding an assault conviction where the defendant pointed a revolver at a trespasser in such a way that the bullet would have hit the ground rather than the victim if he had fired a shot

Summary of this case from People v. Magana

Opinion

         Appeal from the Court of Sessions of San Francisco County.

         The prisoner was indicted, tried and convicted of an assault with a deadly weapon, with intent to inflict a bodily injury. A motion was made for a new trial, which was overruled, and the prisoner appealed.

         The opinion of the Court contains a full statement of the case.

         COUNSEL:

         A. M. Heslep, for Appellant.

         W. T. Wallace, Attorney-General, for the People.


         JUDGES: Burnett, J., delivered the opinion of the Court. Field, J., concurring.

         OPINION

          BURNETT, Judge

         It is objected by the learned counsel of the prisoner, that the testimony for the people did not establish the commission of any assault. The facts of the case, so far as they are necessary to explain the point, were substantially these: John L. Green, the person alleged to have been assaulted, was riding on horseback, on his way to San Francisco, along a trail that ran through certain lands in dispute between the parties, when he was intercepted by the prisoner, who threatened to shoot the prosecutor if he did not leave the land, at the same time drawing a Colt's revolver, which he held in a perpendicular line with the body of Green, but with the instrument so pointed that the ball would strike the ground before it reached the witness, had the pistol been discharged. The prosecutor turned his horse and rode off, and the prisoner did not pursue him.          An assault is defined by our statute to be an " unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another." (Wood's Dig. 335, Sec. 49.)

         The intention to commit the act is necessary to constitute the offense in all cases. (1 Salk. 33; 3 Ch. Cr. L. 821, note 1; Russell on Crimes, 750.)

         As to what shall constitute evidence of such intention, is the question arising in this case. The ability to commit the offense was clear. Holding up a fist in a menacing manner, drawing a sword or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault. See the authorities above cited.

         In the case of Hays v. The People, 1 Hill, 351, it was held that it was not essential to constitute an assault that there should be a direct attempt at violence.

         When there is any competent evidence before the jury to show the intent to commit an assault, it is for them to determine the question of intention. The intention must be to commit a present, and not a future injury, upon a different occasion. The acts done must be in preparation for an immediate injury.

         But can the offense be committed when the intention is but conditional? For example: suppose the prisoner intercepted the prosecutor with the intention to intimidate him, if he could, and if he could not, then to shoot him; and suppose he drew his pistol for the purpose of carrying out his intention, so as to be in readiness to use it instantly upon the refusal of the prosecutor to retire, would these facts constitute an assault?

         If the prisoner did not intend to use the pistol at all, except for the sole purpose of intimidation, then, it is apprehended, the offense would not have been complete. But when the intent is to go further, if necessary, to accomplish the purpose intended, and preparations are actually made, and weapons drawn, and placed in a position to be instantly used offensively, and with effect, against another, and not in self defense, it would seem to be clear that the offense would be complete. Suppose, in this case, the prosecutor had instantly killed the prisoner, would it have been justifiable homicide? The prisoner put himself in a position to use the weapon in an instant, having only to elevate the pistol and fire, at the same time declaring his intention to do so, unless the prosecutor would leave the ground. It is true the threat was conditional, but the condition was present, and not future, and the compliance demanded was immediate. Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him. It would, indeed, be a great defect in the law, if individuals could be held guiltless under such circumstances.

         The drawing of a weapon is generally evidence of an intention to use it. Though the drawing itself is evidence of the intent, yet that evidence may be rebutted when the act is accompanied with a declaration, or circumstances, showing no intention to use it. But when the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself, at the same time declaring his determination to use it against the other, the jury are fully warranted in finding that such was his intention.

         Upon the whole record we can see no error in the action of the Court below, and the judgment is, therefore, affirmed.


Summaries of

People v. McMakin

Supreme Court of California
Oct 1, 1857
8 Cal. 547 (Cal. 1857)

upholding an assault conviction where the defendant pointed a revolver at a trespasser in such a way that the bullet would have hit the ground rather than the victim if he had fired a shot

Summary of this case from People v. Magana

observing that "presenting" a gun at person within its range can constitute assault

Summary of this case from People v. Rivera

In People v. McMakin (1857) 8 Cal. 547 (McMakin), the defendant threatened to shoot the victim, "at the same time drawing a Colt's revolver, which he held in a perpendicular line with the body of [the victim], but with the instrument so pointed that the ball would strike the ground before it reached the [victim], had the pistol been discharged."

Summary of this case from People v. Chance

In People v. McMakin (1857) 8 Cal. 547, the defendant pointed a gun at the ground in front of the victim and threatened to shoot him if he did not leave disputed land.

Summary of this case from People v. Canedos

In People v. McMakin (1857) 8 Cal. 547 (McMakin), the defendant was convicted of assault with a deadly weapon after he pointed a pistol at a trespasser, "but with the instrument so pointed that the ball would strike the ground before it reached the witness, had the pistol been discharged."

Summary of this case from People v. Giddings

pointing gun downward while threatening to shoot the victim if he did not leave constituted assault

Summary of this case from People v. Oriarte

In McMakin, the defendant threatened to shoot the victim if he did not leave a parcel of property, at the same time drawing a revolver, with the gun pointed such that the bullet would strike the ground before it reached the victim if fired.

Summary of this case from People v. Hubbard

In McMakin, the defendant drew a revolver, aimed in the victim's general direction, but pointed down, and threatened to shoot the victim if he did not leave. (McMakin, supra, 8 Cal. at p. 547.)

Summary of this case from People v. Cruz

In McMakin, the defendant threatened to shoot the victim if he did not leave a parcel of property, at the same time drawing a revolver, with the gun pointed such that the bullet would strike the ground before it reached the victim if fired.

Summary of this case from People v. Hubbard

In McMakin, supra, 8 Cal. 547, which the Raviart court cited, the defendant was convicted of assault after he drew a revolver and held it in a perpendicular line with the victim's body, but with the gun pointed downwards so that the shot would have hit the ground had the pistol been fired.

Summary of this case from People v. Newsome

In People v. McMakin (1857) 8 Cal. 547 (McMakin), the defendant threatened to shoot the victim if he did not leave a parcel of property, at the same time drawing a revolver, with the gun pointed such that the bullet would strike the ground before it reached the victim if fired.

Summary of this case from People v. Jordan

In People v. McMakin (1857) 8 Cal. 547, 548 our high court addressed the question "what shall constitute evidence of... intention" to commit a violent injury with a firearm.

Summary of this case from People v. O'Sullivan

In People v. McMakin (1857) 8 Cal. 547, 548 our high court addressed the question "what shall constitute evidence of... intention" to commit a violent injury with a firearm.

Summary of this case from People v. O'Sullivan

In People v. McMakin (1857) 8 Cal. 547 (McMakin), the defendant accosted the victim while the victim was riding on horseback along a trail that ran through lands that were in dispute between the victim and the defendant.

Summary of this case from People v. Perez

pointing a gun and threatening to shoot the victim unless he got off the land constituted an assault

Summary of this case from People v. Sorrell

In People v. McMakin (1857) 8 Cal. 547, the defendant threatened to shoot if the victim did not leave a contested piece of property.

Summary of this case from People v. Garcia

In People v. McMakin (1858) 8 Cal. 547, there was evidence the defendant pointed a revolver toward another person, "but with the instrument so pointed that the ball would strike the ground before it reached the witness, had the pistol been discharged."

Summary of this case from People v. Raviart

In People v. McMakin, 8 Cal. 547, a conviction of assault with a deadly weapon was affirmed upon evidence that the accused pointed a loaded gun toward the prosecuting witness and demanded that he leave the premises immediately.

Summary of this case from People v. Thompson
Case details for

People v. McMakin

Case Details

Full title:PEOPLE v. McMAKIN

Court:Supreme Court of California

Date published: Oct 1, 1857

Citations

8 Cal. 547 (Cal. 1857)

Citing Cases

People v. Chance

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People v. Perkins

In assessing the trial court's embellishments here, it is helpful to look at People v. McMakin (1857) 8…