People v. Harris

[663]

PETERS, P. J.

Section 4502 of the Penal Code makes it a felony for any prisoner committed to a state prison to possess, carry upon his person, or have under his custody, among other things, . . any dirk or dagger or sharp instrument ...” Harris was charged with and convicted of a violation of this section in that on March 6, 1949, while an inmate of San Quentin, he unlawfully possessed “a sharp instrument, to-wit: a metal wood chisel . . . with a sharpened point.” At the trial Harris elected to conduct his own defense, but on this appeal is represented by counsel. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

The chisel was introduced into evidence and has been examined by this court. It is a steel wood chisel, with the wooden handle broken off, is about 6 inches long, three-quarters of an inch wide, an eighth of an inch thick, and has a sharpened point.

The evidence shows that on March 6,1949, Harris, then serving time for second degree murder, and conspiracy to commit robbery, was possessed of this chisel in violation of the above section. Ballard, a guard at the prison, testified that on the morning of the day in question he saw Harris, whom he knew by sight, walking across the big yard. When Harris was about 20 feet distant he noticed an oblong object in Harris’ pocket. He called to Harris to stop. Harris immediately started to run away, whereupon Ballard took up the chase yelling to Harris to stop and blowing his warning whistle. He saw Harris take an object from his pocket with his right hand. About this time Harris fell, dropped the object, picked it up with his left hand, got up, and continued to run away. Harris was at all times within sight of Ballard until Harris rounded a corner of the south cell block. Just after Harris turned this corner he was captured by Maxwell and Keffer, two other guards. While these two guards, and several more who had arrived, were struggling with and trying to subdue Harris, Keffer yelled at Ballard that Harris had dropped a metal object on the pavement. Ballard picked it up about 5 inches from Harris’ feet. It was the chisel in question. While several guards testified that they did not see Harris drop the chisel, two guards positively testified that they saw the chisel in Harris’ hand, and saw him drop it. Keffer testified that he grabbed Harris’ right arm and twisted it behind Harris’ back, and that Sergeant Todd grabbed Harris’ left hand and arm