Dick

—Defendant, after jury trial, was convicted of assault with a deadly weapon with intent to commit murder in violation of Penal Code, section 217. Defendant’s application for probation was denied and he was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

Defendant, a Caucasian, was in the “ G N M Club ’ ’ in the City of Sacramento on December 3, 1966, with a gun that he had purchased earlier during the day. Around midnight defendant stood near a table in the bar and looked at Cornell Lee1 Collins, a Negro, who was seated at a nearby table. Defendant then removed the gun from his belt, pointed it at Mr. Collins, and shot him in the stomach when he attempted to rise.

Immediately after the shooting, defendant left the bar pursued by William Memminger, a witness to the shooting. Defendant proceeded down J Street toward 5th Street where lie took off his jacket and threw it away. When he discovered that he was being followed by Memminger, he wheeled around, pointed the gun at his pursuer and fired a shot.

‘ Shortly afterwards defendant was seen struggling with another man at the corner of 5th and J Streets. Defendant then…