On February 11, 1975, between 6 and 7 p. m., Wardell Fouse, stepson of appellant, was involved in a fight with another individual in front of the house in question. After the fight, Mr. Fouse went home.
Some time after 6 p. m. that evening, Mrs. Sophronia Johnson was seated in the living room of the dwelling in question. She heard a loud boom that sounded like a shot. She went to the window, looked out and viewed the taillights of a car going by. Mrs. Johnson could not describe the car further. Mrs. Johnson subsequently discovered a hole in the address plaque that hangs in front of her house.
Later that evening, Deputy Lonnie Timney of the Los Angeles Sheriff's Office arrived at Mrs. Johnson's residence. He examined the premises and observed pellet indentations and pellets from a shotgun embedded in the frame of the wood in front of the house and pellet marks on the garage door. Deputy Timney also discovered in front of the house an expended twelve gauge shotgun shell casing.
The People called Wardell Fouse as a witness on their behalf. Mr. Fouse admitted having a fight that evening, but denied both shooting at the house and that appellant drove him to the premises.
On February 12, 1975, the day after the shooting, Deputies Michael Lugos and Paul Foster questioned Wardell Fouse about the shooting. Mr. Fouse was advised of his Miranda rights. Deputy Lugos repeated the conversation which he had with Wardell Fouse which contained the following: ‘The minor told me that he had been involved in a fist fight with the victim Kenneth and that after loosing the fight he—that is, Wardell Fouse—returned home, obtained a shotgun, had his stepfather, Mr. Belton, drive him back to the victim's residence at which time Wardell Fouse fired the weapon at the residence.’
After a renewed questioning of Deputy Timney about the expended twelve gauge shotgun shell, the prosecution rested.
Appellant then moved for a judgment of acquittal under Penal Code section 1118. The motion was based on insufficient evidence to convict appellant. The court summarily denied the motion without hearing argument from the prosecution. The prosecution made no effort to reopen its case in chief.
The defense subsequently presented its case calling to the witness stand Robert Charles Belton, appellant; Denise Belton, appellant's sister; Mary Alice Belton, appellant's wife; and Thomas Perez, owner of the car alleged to have been used in the perpetration of the crime. The essence of the testimony was that appellant was in the house when the shooting occurred and that the 1963 Chevrolet, allegedly involved in the crime, had a frozen transmission and could not have been driven at the time.
During the course of appellant's defense evidence, the People offered Deputy Cusiter as a rebuttal witness. In rebuttal, Deputy Cusiter testified that appellant was on the porch when the police arrived and that appellant had asked the deputy to write off a ticket for equipment violation which appellant had been issued on the 1963 Chevrolet.
At the end of appellant's defense, the People called Lannie Bennett as a witness in their behalf. Lannie Bennett testified that he saw the 1963 Chevrolet pass the dwelling in question twice on February 11, 1975.
Mr. Bennett testified that he saw appellant, Wardell Fouse, and someone else in the car, and that the shooting occurred from the car. Defense counsel then cross-examined Lannie Bennett.
The court then called Wardell Fouse to the stand. Mr. Fouse continued to deny shooting at the house.
