Giacobbi

Defendant appeals from an order denying a new trial and from a judgment of conviction of the crime of assault with a deadly weapon. The defense at the trial was an alibi, but upon this appeal it is contended that the evidence shows justification or self-defense.

The evidence showed the following facts: Two police officers of San Francisco, after 11 o’clock at night-time, noticed the defendant and a companion named Hale standing together at the corner of Montgomery and Broadway Streets. As the officers approached the two men separated, the defendant stepping back a few paces from the curb to the building line. The officers came to Hale first, announced themselves as police officers, and asked him where he lived. He did not answer. One of the officers, Gallatin, then searched him and found a large club under the waistband of his trousers. Subsequently Hale was taken to police headquarters and a further search disclosed a pistol and a piece of wire arranged with a slip knot upon his person. Upon a plea of guilty he was sent to San Quentin for violating the Firearms Act (Stats. 1923, chap. 339). After Officer Gallatin took from Hale the club he put Hale in charge of Officer Lillis…