People v. Makovsky

CURTIS, J.

A hearing was granted in this case after decision by the District Court of Appeal, First District, First Division. We hereby adopt the following portion of the opinion rendered by said court in said case as a proper statement of facts and determination of certain of the issues involved herein:

“Appellant was charged in an information containing two counts, one of which alleged the unlawful selling of blackjacks and the other the unlawful selling of billies, both contrary to the statute. (Stats, of 1923, p. 695, amended May 22, 1925, Stats, of 1925, p. 542.) Count one was dis

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missed. Defendant was found guilty upon the second count. This is an appeal from the judgment and from an order denying a motion for a new trial. Two main grounds are urged for a reversal of the judgment and order.

“Appellant first complains that there was no evidence to show the instruments sold were billies. There is no merit in this contention. The instruments were produced at the trial and there is ample evidence in the record to show that they were commonly known as billies. Moreover, there is, according to the testimony, little if any difference between a billy and a blackjack, and the possession of either instrument is denounced by the statute.

“Appellant next complains that the count upon which he was convicted does not state facts sufficient to charge a public offense, in that it did not charge the sale of an instrument

‘commonly known’

as a billy. The information charged the violation of a particular statute which was referred to, and it also stated the type of instrument which was unlawfully sold. The language employed was sufficient to enable a person of common understanding to know what was intended. (Pen. Code, sec. 950.) The information was therefore sufficient within the provisions of section 951 of the Penal Code.

“ And, finally, appellant claims the evidence establishes that a trap was deliberately set by police officers who caused his arrest and conviction. Upon this subject it appeared in evidence that in September, 1933, a man named Ports was working in the police department in the city of Oakland. He was not a regular officer but was paid so much for each case in which he procured arrests for offenses. In the present case he received the sum of $7.50 for his services. On the day in question Ports, acting under instructions from the department, went to the defendant's place of business and told defendant that he was working on a certain boat; that a friend of Ms had informed him he could procure blackjacks from defendant. Forts stated he wanted a dozen. Defendant informed Ports that he did not have such instruments, but that he would try to procure them for him. Ports then left defendant’s store and later returned and received from defendant three billies which defendant had in the meantime procured from a wholesale house. Ports paid defendant $1.50 apiece for the articles, and later turned