Clarke

The defendant was convicted following a trial before a jury upon an information charging him with the crime of assault upon the person of Jack Elliott with a deadly weapon. He made a motion for a new trial, which was denied, and from that order and from the judgment which followed the verdict he has appealed upon a typewritten record.

The evidence is that on September 26, 1925, the defendant drove his automobile at a high rate of speed to the home of Elmer Davis in the city of Oakland at about 1 o’clock P. M., while the Davis family, including Jack Elliott, a son-in-law of Elmer Davis, were at their luncheon. The defendant left the motor of his car running and, after kicking in the front door, entered the house carrying a loaded shotgun. As he came toward the kitchen where the members of the family were gathered they scattered to different parts of the house, leaving Elliott alone in the kitchen. As the defendant came through the hall door into the kitchen carrying the gun he pointed it directly at Elliott, who, in attempting to escape, fell over a chair and into a pantry. As he did so the defendant demanded that he come out, but before anything else occurred two other members of…