Maxey

This appeal is from a judgment after conviction by a jury for assault with a deadly weapon (Pen. Code, § 245, subd. (a)). Appellant was also found to have used a firearm in the commission of the felony (Pen. Code, § 12022.5).

The undisputed facts surrounding the shooting are as follows: William A. Ealy and William R. Kennon went to1 appellant’s residence in San Francisco in the early evening of January 21, 1971 for the purpose of cutting heroin owned by appellant. Ealy had been selling narcotics for appellant, who had previously threatened to kill him on several occasions. Appellant demanded sales proceeds, from Ealy and Kennon, both of whom denied possession of either money or narcotics. Whereupon, ap pellant left the kitchen area where the men were sitting, walked upstairs, returned some minutes later with a gun, and shot Ealy in the living room.

Kennon asked appellant why he had fired. Appellant failed to reply and fled out the front door with the pistol. Kennon then checked Ealy’s condition and left to dispose of the heroin he was carrying on his person. Appellant returned within minutes without the gun and suggested that Ealy and Kennon indicate to the police that…