McNabb

Defendant was convicted of the crime of assault with intent to commit robbery. By the judgment it was ordered that he be imprisoned in the state prison for a period of two years. The judgment and also an order denying defendant’s motion for a new trial are appealed from. But two points are urged as grounds for reversal. It is contended, first, that the evidence was insufficient to justify the verdict; and, second, that the district attorney was guilty of prejudicial misconduct in asking certain questions of a witness relative to statements alleged to have been made by defendant prior to the commission of the crime charged.

The evidence was sufficient to justify the verdict. The complaining witness testified to the attempt made by two men to rob him on the evening of January 27, 1911, as he left a car on his way home, and within the easterly limits of the city of Los Angeles. He told how he had wrestled with one of his assailants and after escaping from him had run to his home near by and telephoned to the police; that he had then returned to the place where he had been assaulted and found the defendant not far away. The latter was leaving the scene of the assault and appeared to…