People v. Desmond

BURNETT, J.

The information under which defendant 'was convicted charged that “on or about the 11th day of February, A. D. 1913, he did willfully and unlawfully and feloniously bring, and aid and abet in bringing into the county jail of the county of Santa Clara, a certain firearm, to wit, a loaded revolver, and that the said defendant was not then or there or at all authorized by law so to do.” The accusation was brought under section 171a of the Penal Code which makes it a felony for “any person, not authorized by law” to bring “into any state prison, jail, or reformatory in this state . . . any firearms, weapons or explosives of any kind. ’ ’ It is apparent, therefore, that the information sets forth an offense condemned by the statute. It is true that some redundancy is manifest but this does not invalidate the information nor affect its sufficiency. For instance, the expression “and aid and abet in bringing” and the following term, “loaded,” were unnecessary. “All persons concerned in the commission of a crime . . . and whether they directly commit the act constituting the offense or aid and abet in its

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commission, or, not being present have advised and encouraged its commission . . . are principals in any crime so committed” (Pen. Code, see. 31), and the distinction between an accessory before the fact and a principal in cases of felony has been abrogated and both may be charged as principals. (Pen. Code, sec. 971;

People

v.

Nolan,

144 Cal. 75, [77 Pac. 774].) In other words, having charged the defendant as principal, it was open to the district attorney to prove that the former actually committed the offense or that he aided and abetted in its commission, or advised and encouraged its commission. It is also apparent that the statute does not require the weapon to be “loaded.” In considering this case we may therefore disregard these superfluous features of the information.

The claim is made seriously that the evidence is insufficient to support the verdict. More specifically, it resolves itself into the contention that there is not sufficient corroboration of the testimony of witness J. J. Savage, who was admittedly an accomplice. In this we think appellant is in error. Savage and one Frank Cody had been arrested and committed to the county jail for an offense at Gilroy and they" were taken back to that place and sentenced to the county jail for petit larceny and again returned to the custody of the sheriff on February 11, 1913. They were not searched at the time they were so returned. Subsequently, Deputy Sheriff Buffing-ton discovered in the sewer in the jail a pistol loaded with five shells. Savage testified that prior to said February 11 he had a conversation with defendant and that “Desmond asked me about a gun; said that if he had a gun he could smoke his way out of the jail; he expected to get the cookhouse job when the cook went out. . . . "Why he told me that he would like to have the gun. I told him the gun would be worth some money. He said, ‘how much?’ I said, ‘three or four dollars.’ He said, ‘bring it up, that is priceless.’ So I went back to Gilroy, brought the gun up. . . . Q. And to whom did you deliver it? A. I delivered it to Desmond.’’ The record contains two statements made voluntarily by the defendant, one to Buffington and the other to the sheriff and the district attorney. In the former he admitted that he had the weapon in his possession for some days and, in reply to the statement of Buffington: “Bill, what in the world was