People v. Boyd

BARNARD, P. J.

The defendant was charged with the crime of possession by an ex-convict of a firearm capable of being concealed upon the person, in violation of Act 1970, section 2, of the General Laws of this state. The information alleged that on July 6, 1946, the defendant had in his possession and control a firearm having a barrel less than twelve inches in length, and that in 1938 he had been convicted of a felony in the State of Ohio and had served a term in the Ohio State Reformatory. After pleading not guilty, the defendant was tried by a jury and he has appealed from the judgment of conviction.

[91]

There is no dispute as to the facts of the case. The defendant’s wife owned a photographic studio in San Diego and was in the business of taking snapshot photographs of patrons in various night clubs and selling pictures which were quickly developed. The defendant did the developing work at the studio. On the night of July 6,1946, the defendant’s wife was twice molested by a group of sailors, being knocked down on one of the occasions. She reported the matter to the Navy Shore Patrol. After the second incident she returned to the studio where her husband was working.

The defendant finished developing some pictures which were to be delivered, and as his wife was afraid to return to the night club alone he agreed to accompany her. The wife owned some sort of a gun, whether a pistol or revolver does not clearly appear, which she had purchased in Cleveland at a time when her husband was working at night. Before returning to the night club she put this gun in her bag, in which she carried her photographic slides and flash bulbs. The gun was so long that the butt end hung outside the bag and it was impossible for her to close the zipper. When the defendant and his wife left the night club they were followed by two of the sailors who started an altercation with them on a street corner. The defendant finally took the gun out of his wife’s bag and shot one of the sailors, apparently in the defense of his wife and himself. The defendant and his wife then fled from the scene and the defendant threw the gun into the bay. They returned to their home and the defendant at once telephoned to the police, advising them of what had occurred and then awaited the arrival of the officers.

So far as indicated by the record before us, the defendant was justified in shooting the sailor. It does not appear whether or not he was prosecuted for any offense in that connection and we are involved here only with the charge that he was thus temporarily in possession and control of a firearm in violation of Act 1970, section 2, of the General Laws. That he was an ex-convict, and that he took the gun from his wife’s bag and shot the sailor, is admitted. The sole ground of appeal is that the evidence is insufficient to sustain the judgment in that it is not sufficient to sustain the implied finding of the jury that the gun in question had a barrel less than twelve inches in length.