People v. Davenport

SHINN, P. J.—

Defendant Gene Gordon Davenport appeals in propria persona from a judgment of conviction in a jury trial under section 12021 of the Penal Code (Deadly Weapons Control Law). and from an order denying his motion for a new trial.1

[337]

An information was filed on January 17, 1961, by the District Attorney' of Los Angeles County which stated that defendant did have in his possession and under his custody and control a .38 caliber revolver, capable of being concealed upon the person and having a barrel less than twelve inches in length, the said Davenport having theretofore been con7 vieted of the felony of forgery on March 25, 1953, in the Superior Court of the County of Los Angeles.

The trial disclosed the following facts: on July 23, 1960, Davenport" and three men named Stabler, Luna and Lopez, after dining at a restaurant, left together and drove back toward their apartment, when Stabler discovered he had left a satchel in the restaurant. During this time the restaurant owner discovered what was in the satchel and notified the police. Defendant and his companions returned to the restaurant to pick up the satchel, which contained a thousand dollars, the wooden stock of a'Browning pistol, some shells for a .38 pistol and some tools. When they arrived at the restaurant in a car which Luna was driving, the car was stationed in front of the restaurant and the men got out, leaving the doors open and the motor running. Stabler went inside, where he drew a gun and was arrested by the waiting officers after a struggle. Luna and Davenport went part way to the door of the restaurant. When two of the officers came from the restaurant Luna and Davenport ran away. They were overtaken by the officers, Davenport was subdued by force, and both men were arrested. The officers took from the right trousers pocket of Davenport a loaded .38 caliber pistol with a two inch barrel, and from another pocket some live .38 cartridges.

Defendant testified that as they got out of the ear Stabler handed him the gun and some shells; he protested to Stabler that he did not want the gun, but he took it and the shells and put the gun in his pocket. Stabler, returned from prison on court order, as defendant’s witness, testified that he owned and was carrying three guns; he shoved one gun and some shells toward Luna, stuck another gun in defendant’s pocket and gave him some shells; defendant protested that he did not want the gun. Defendant testified that he and Stabler had been together in Mexico and had been used to carrying guns. Stabler did not threaten or frighten defendant or force him to take, the gun, nor did defendant endeavor to get rid of it, although he had ample opportunity to do so.