People v. Crenshaw

ADAMS, P. J.

Defendant was charged with a violation of section 4502 of the Penal Code, in that on the 12th day of March, 1945, he wilfully and unlawfully and feloniously, while a prisoner confined in Folsom prison, did possess and carry upon his person and have under his custody and control, a sharp instrument. He was convicted by a jury, a motion for a new trial was denied, and he has appealed from both the judgment and the order denying a new trial.

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Section 4502 of the Penal Code, which was enacted in 1943, so far as material here provides:

“Every prisoner committed to a State prison who, while at such State prison . . . possesses or carries upon his person or has under his custody or control any instrument or weapon of the kind commonly known as a black-jack, slung-shot, billy, sandclub, sandbag, or metal knuckles or any explosive substance or any dirk or dagger or sharp instrument, or any pistol, revolver or other firearm, is guilty of a felony and shall be punishable by imprisonment in a State prison for a term not less than five (5) years.”

The evidence shows that defendant was assigned to mechanical work in the prison, repairing lawn mowers. He had a bench behind the Educational Building, where he had for use a vise, chisels, and files. He testified that he had heard through the prison “grapevine” that he was “on the spot,” and that in order to protect himself he had beveled off the edges of a “rat tail” file about six inches long until same had a very sharp point; that on leaving his place of employment about 4 p. m. he placed this instrument in a sheath which he had fashioned out of the tongue of his shoe, and concealed it on his back between his shoulders. He left his cell about 6:45 for supper in the mess hall, still carrying the weapon. In the line of prisoners was another inmate, Marco Easter, who advised a guard who was in attendance: “That man [indicating defendant] has got a knife in his pocket, take it away from him.” Thereupon defendant was searched and the instrument found concealed between his shoulders.

On this appeal it is contended that the judgment should be reversed on two grounds, first, that section 4502 of the Penal Code is invalid, and, second, that the trial court erred in refusing to admit proffered testimony regarding an alleged assault upon defendant made by Marco Easter on March 11, 1945, at which time Easter had struck defendant in the face and threatened to kill him.