Mendez

The defendant was charged with an assault with a deadly weapon with intent to commit murder. He was found guilty of an assault with a deadly weapon and appeals from the judgment of conviction, and from an order denying his motion for a new trial.

The defendant and the complaining witness, Rodriguez, were on friendly terms, and on the day of the assault the defendant visited the complaining witness at the home of the latter. While the evidence is conflicting as to just what transpired in the house on the occasion of this visit, there was nothing to indicate that the friendly relations theretofore existing did not continue throughout the entire time the defendant was at Rodriguez’s house. While in the house it was agreed between them that they would retire therefrom and engage in a friendly wrestling contest. They left the house for this purpose in company with Rodriguez’s wife and one Ortiz. On reaching the yard in front of the house they began wrestling with each other, with the result that on the third trial the defendant threw Rodriguez. At its conclusion the latter was desirous of continuing the contest and advanced toward defendant, evidently with this purpose in mind. The…