Cupp

The defendant was informed against on a charge of assault with a deadly weapon with intent to commit murder, he entered a plea of not guilty, a trial was had in the trial court sitting with a jury, the jury returned a verdict, guilty as charged, the defendant made a motion for a new trial, his motion was denied, and a judgment of conviction was entered against him. He has appealed from the order denying his motion for a new trial and from the judgment.

On the evening of the 3d of March, 1925, the defendant entered the Panama Theater and took a seat in the front row. A little later a small boy entered and took a seat on the defendant’s left and another small boy entered and took a seat on the defendant’s right. During the evening Harry W. Crowley, a police officer, dressed in civilian clothes, and Frank J. McCarthy, his friend, entered the theater and took seats a few rows behind the defendant. The police officer and his companion were acquainted with Chester Conkling, the proprietor, and attended the theater partly to visit the proprietor and partly to see the picture that was being presented. As the performance proceeded the police officer observed certain actions on the part of…