People v. Marcus

VAN DYKE, P. J.

This is an appeal from an order denying a new trial and from a judgment entered upon a jury’s verdict which convicted appellant of an assault with a deadly weapon upon one Richard Smith, and • of three counts of possessing a sharp instrument or knife while he was an inmate of a state prison. (Pen. Code, § 4502.) He was

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acquitted upon a fifth count charging him with an assault with a deadly weapon upon one George Heck.

Appellant has been imprisoned at Folsom Prison since 1949. The victim of the assault of which he was found guilty was a fellow inmate. Appellant challenges the sufficiency of the evidence and also contends that as to all the offenses of which he was convicted he acted without criminal intent and for the sole purpose of being brought to trial so that he could testify to the cruel and inhuman treatment to which he has been subjected at the prison.

Appellant’s intentions and purposes in possessing a deadly weapon in violation of section 4502 of the Penal Code are wholly irrelevant. That section “absolutely prohibits all prisoners in any state prison, without qualification, from possessing or carrying on their persons certain designated deadly weapons. The intention with which the weapon is carried on the person is not an element of the offense.”

(People

v.

Wells,

68 Cal.App.2d 476, 481 [156 P.2d 979] ;

People

v.

Marcus,

120 Cal.App.2d 347, 348 [260 P.2d 1051].) There was no need of proof of evil motivation. Appellant’s admission that he possessed a sharp knife or instrument while he was imprisoned at Folsom established the three violations of section 4502 of the Penal Code.

Appellant’s intent was an essential element in the proof of his guilt of the assault charge.

(People