People v. Jennings

VAN DYKE, P. J.

This appeal is taken from a judgment based upon a jury verdict convicting the appellant of the offense of violating section 4502 of the Penal Code which prohibits possession of a weapon by an inmate of a state prison. Appellant had been committed to the state prison at Folsom for receiving stolen property. On November 24, 1952, and while holding a position as a trusty he was engaged in work without the prison walls. On that day when he had finished work and after changing into prison garb he was admitted through the gate into the prison proper. As he entered the yard a guard noticed an object protruding from the rear of his boot. When appellant, on command, removed his boot it was found to contain a knife wrapped in tape and lying along the inner sole of the boot. Thereafter his cell was searched, and, although the first search revealed nothing, a repeated search on the following day revealed another knife concealed in a hollow leg of the prisoner’s bunk. Thereafter he was charged by information with two counts of violation of said code section. He refused the assistance of counsel at his trial, although the assistant public defender, who had been appointed to defend him, remained at the counsel table to render such assistance as might be necessary. Appellant was acquitted of the count which involved possession of the knife found in the leg of his bunk. He was convicted of possession of the knife found in his boot.

For reversal of the judgment appealed from appellant asserts: 1. That though he was admittedly in possession of the knife in his boot, yet the evidence was insufficient to show that he had knowledge of such possession; 2. That he was unlawfully prejudiced in the trial of the first count by the joinder of the second count therewith and the concurrent trial as to both. Although appellant had refused the aid of counsel at his trial he did request that counsel be appointed to assist him on his appeal and counsel was so appointed. At the argument an additional point for reversal was urged in that

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it was claimed that the court erroneously struck out material testimony given by defendant as a witness in his own behalf.

The evidence was sufficient to support appellant’s conviction. As to the element of knowledge the jury were entitled to conclude from the admitted fact that the knife wrapped in tape was lying along the inner sole of the appellant's boot as he walked into the yard that he could not but have known of the presence in his boot of so large and so rigid an object. His contention was that he had been imbibing too freely of a drug he possessed and which he said he was using to relieve a sinus infection and that the effect of the drug, compounded and enhanced by a like overindulgence in intoxicating liquor, had rendered him unable to appreciate the presence of the knife in his boot. He produced witnesses who testified that his condition was that of a man who had little awareness of what was going on, but there were other witnesses who testified that he appeared to be quite sober and in the full possession of his normal faculties. The issue of knowledge was one of fact which the jury determined against him and that determination is obviously supported by sufficient evidence to make it binding on appeal. The code section involved absolutely prohibits all prisoners in any state prison, without qualification, from possessing or carrying upon their persons certain designated deadly weapons and proof of the possession of the prohibited weapon warrants the inference it was carried in violation of the statute.