Blackshear

Appellant was convicted by a jury of a violation of Penal Code, section 245, assault with a deadly weapon. He appeals from the judgment and from the order denying his motion for a new trial.

It is not disputed that on the night of May 21, 1959, appellant, using a high-powered rifle, shot and seriously wounded the complaining witness, one Buffington. However, in support of his primary contention that the jury’s verdict is not supported by the evidence, appellant argues that Buffington was the aggressor in the physical encounter that preceded the shooting, and that appellant acted justifiably in self-defense and in defense of his home.

For reasons which will shortly appear, it is unnecessary to narrate here all of the mass of conflicting testimony concerning the circumstances leading up to the violent encounter between appellant and Buffington which culminated in the shooting. In our recital, we take cognizance of the familiar rule that we must view the evidence in the light most favorable to the verdict and judgment.

It appears that on the occasion in question Buffington went to appellant’s residence on East 47th Street in Los Angeles looking for a girl friend with whom he had…