People v. McConahay

BARNARD, P. J.

The defendant was charged with escape from the lawful custody of a police officer in violation of section 4532 of the Penal Code and, in a second count, with assault with intent to commit murder in that he had assaulted the officers with a revolver with the intent to murder. A jury found him guilty on the first count and not guilty on the second. He has appealed from the judgment and from an order denying a new trial.

About 7 p. m. on June 12, 1948, two police officers were cruising in a police car when they came upon two men near a 1928 Dodge automobile which was standing on a public street in Santa Ana. One of the men, Walker, was holding a license plate in his hand, which was dropped when he saw

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the officers. The officers saw the appellant bending over the front of the Dodge and saw him “come up with the license plate” in his hand. It was established that the license plates were registered to the Dodge and that no permission to remove them had been given to the appellant or to anyone else. When asked for their names the appellant told the officers his name was Walker, and Walker said his name was McConahay. When the officers asked them what they were doing there they stated that they were getting license plates for a party named Owens. They further stated that they did not own the car and did not know to whom it belonged. The officers arrested the two men, telling them that they were being arrested for petit theft and taking license plates. The men were searched, two bottles of gin and a knife being found on each man. They then started for the police station, one officer driving the police car while the other sat in the rear seat with these two men.

On the way to the police station the appellant started to scuffle with the officer in the rear seat. There is evidence that the appellant secured this officer’s gun and attempted to kill the officer, but the jury found in appellant’s favor on the second count. In any event, a scuffle ensued during which the appellant succeeded in getting out of the car and in getting away. He was rearrested the next day.

The appellant first contends that the evidence is insufficient to support the verdict. There is no conflict as to the attempted arrest and the escape, the only contention being that the arrest was not legally made. It is argued that since the officers did not have a warrant they were authorized to make an arrest only if a misdemeanor was committed or attempted in their presence, and that the evidence is not sufficient to show such a fact since there is no evidence that the license plates were on the car on the day in question, and no evidence that the officers actually saw the appellant remove a license plate from the vehicle. There is ample evidence that these plates were registered to this ear, that the appellant had been given no permission to remove them, and that he did not know who owned the car. Walker was seen standing in front of the car with a license plate in his hand, which he dropped when the officers approached. The appellant was seen bending over the car above the front license plate and came up holding a license plate which had previously been on the car. The appellant told the officers that he was getting the plates for a party named Owens. Although he took the