People v. McGinnis

CONLEY, P. J.

The defendant, Amos McGinnis, was charged with assault with a deadly weapon upon Joseph Palermo in count 1 of the information, and in count 2 with violation of section 12021 of the Penal Code (possession of a forbidden firearm by a convicted felon). After a three-day trial, the jury found the defendant guilty of simple assault, an included offense under count 1, and guilty of a violation of section 12021 of the Penal Code as charged in count 2.

Count No. 2 of the amended information reads as follows: “Por a further and separate cause of action, being a different offense from, but connected in its commission with the charge set forth in Count One hereof, Amos McGinnis is accused by the District Attorney of said County of Sacramento, by this amended information of the crime of

Violation of Section 12021 of the Penal Code of the State of California (Ex-Convict with Qun)

committed as follows: That the said Amos McGinnis on the 31st day of July, A.D. 1965, in the said County of Sacramento, in the said State of California, and before the filing of this amended information, did then and there willfully and unlawfully and feloniously own and have in his possession and under his custody and control a certain firearm, to wit, a 7.65 calibre automatic pistol, Czechoslovakian, Serial

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602556, capable of being concealed upon the person having a barrel less than twelve inches in length, the said Amos McGinnis having theretofore been duly and legally convicted of a felony, to wit, the crime of Assault and Battery with a Dangerous Weapon with Intent to Kill, on the 20th day of November, 1943, by and before the District Court of the State of Oklahoma, in and for the County of MeCurtain.”

[615]

The court, after conviction, came to the same conclusion as the probation officer, namely, that probation should be denied, and the defendant was, consequently, sentenced to the state prison on the second count. In view of the fact that simple assault is a misdemeanor, no sentence was imposed by the court on the conviction of the included offense charged in count 1.

The evidence was ample to convict the defendant. At about 3:30 p.m., on July 31,1965, at the corner of Second and “J” Streets in Sacramento, Amos McGinnis approached a somewhat slighter man of Indian descent, who was just leaving a liquor store; appellant demanded that the Indian give him a “pint” and, when he refused, appellant grabbed the bottle of wine from the man’s hands. The slighter man then started a struggle for his bottle, and appellant thrust his hand into one of the pockets of the other man’s jeans and took several bills from him. During the fight, appellant broke one of his crutches over the other man’s head, thereby knocking him to the ground; McGinnis then jumped upon him and, producing a dagger-like knife, was apparently about to stab him in the chest when Joseph Palermo, a newspaper distributor, who had just driven up to the corner and who saw the appellant beating the victim with his crutch and pulling a knife with which to stab him, took an automatic pistol, for which he had a permit, out of his glove compartment, got out of his car, and approached the appellant. Palermo told appellant, “Don’t cut that man,” and McGinnis backed away from his opponent. Thinking that he had salvaged the situation, Palermo put the safety catch on his automatic, turned his back on McGinnis and was about to get into his automobile when appellant made an unexpected lunge for Palermo’s back pocket and took the gun away. McGinnis aimed the automatic at Palermo and pulled the trigger twice, but the pistol did not go off; the appellant then struck Palermo on the side of the head with the gun, causing a severe bleeding gash as a result. The appellant then went down Second street with the gun in his hand, entered Brownie’s bar, and asked the bartender to watch the automatic for him. Within 10 minutes, McGinnis reentered the bar, said, “Give me the gun” and left with Palermo’s automatic; he then got into an automobile driven by others and placed the weapon on, or behind, the back seat of the car.