McGee

The defendant was charged by information with the crime of assault with a deadly weapon. He was found guilty as charged, and sentenced to imprisonment for the term of eighteen months. He appeals from the judgment, and also from the orders denying his motions for a new trial and in arrest of judgment.

His principal ground of appeal is that the evidence is insufficient to support the verdict.

Briefly the evidence shows as follows: On December 20, 1908, at 2 o’clock in the morning, John P. Fennell, the complaining witness, John J. Sullivan and Florence O’Neill were walking along Kearny street in San Francisco toward Market street, when the defendant called out to Fennell, “You fellow in the gray suit, I.want to speak to you.” The defendant, being an utter stranger to Fennell, was told so by him, and directed to go away. The Fennell party proceeded hurriedly along their way. O’Neill, who had stopped to say good-bye to some friends, was a short distance in the rear of his companions, and upon coming up to defendant said to him, “You don’t know any of us. Go home, young man.” Immediately defendant struck O’Neill, knocking him down. Thereupon, O’Neill having called for help, Fennell…