People v. Chester

[2]

DESMOND, J.,

pro

tem.

In this case appellant was charged with having violated the terms of his probation and upon a hearing the court made an order revoking probation and remanding defendant to the state prison at San Quentin. Prom this order defendant appeals claiming that it is contrary to law and unsupported by the evidence and that it constitutes an abuse of the discretion vested in the court in probation matters. It appeared upon the hearing that defendant, convicted of second degree burglary, was granted probation, the term of probation being fixed at ten years, conditions of probation including a period of eighteen months’ incarceration in the county jail. After his release from custody, November 1, 1932, and while still on probation the defendant was arrested shortly after midnight on January 13, 1933, in an automobile in which two other men were riding. These two men had police records, one of many items extending over a period of years, the other a juvenile record, and in the car at the time of arrest were two revolvers, one a Smith & Wesson .32, the other a German 765 automatic, together with six .32-20 cartridges and eight .32 automatic shells, all of which were found together by the arresting officer on the floor of the car immediately under a seat that tipped forward or back where defendant was sitting. One of defendant’s companions, who at the time of arrest was driving the car, entered a plea of guilty to violating the Deadly Weapon Act and was sentenced to six months in jail. He appeared as a witness for appellant at the hearing upon the violation and stated that the weapons belonged to two men who frequented a club where he was employed, and that he intended to deliver them to the owners, whose names he did not know, that night when the other men, the defendant and the third man whose sister owned the automobile in which the three were riding should have taken him to the club. This witness did not know whether or not the revolvers were loaded, not having examined them when he received them from the owners, nor when he put them in the car for the purpose of returning

them.

The defendant claimed that he had no knowledge of the criminal records of his associates, including, besides his two companions at the time of arrest, another witness who appeared for him and who also had a lengthy rec