People v. Mulherin

DESMOND, J. Defendant was found guilty by a jury of “Violation Chapter 339, Laws of 1923, as amended, sec. 1, Act 1970, Deering’s General Laws, Deadly Weapons Act, a felony, as charged in Count II of the information.” His motion for a new trial was ordered denied and the appeal is from the judgment and order.

The information charged in count II that violation of the above-mentioned law was committed in this: that defendant “did wilfully, unlawfully and feloniously have in his possession what is commonly known as a ‘black-jack’ ”. The defendant upon his trial admitted ownership of the instrument which the prosecution claims was properly described as a black-jack, 'but he contended at the trial and now contends that it is not a black-jack, and that the verdict therefore is contrary to and unsupported by the evidence and contrary to law.

Quoting from appellant’s brief: “The instrument in question consists of a large number of metal washers strung upon a rawhide leather thong. The washers form two parallel masses, each approximately 3 inches long, with the rawhide strung through one mass and back through the other, and then knotted. The excess length of the rawhide forms a loop on the opposite side of the knot from the washers.” The attorney-general in his brief has described the instrument as follows: “It is a collection of fifty-six metal washers, one inch in diameter, threaded upon two parallel narrow strips of leather or rawhide. The ends of the strip of leather or rawhide are then brought together and tied in a knot as close to the washers as possible, thus causing the washers to form a compact loop of metal of [214]considerable weight. The four ends of the rawhide or leather strips extend for seven and one-half inches behind the knot, forming a convenient and flexible handle. This handle is so tied that it can be looped over the wrist like the ordinary ‘sap’ or ‘black-jack’.”

It will be seen from the above descriptions that the instrument consists of “a mass of metal, fixed on a flexible handle, strap or the like”, which brings it within the definition of a “slung-shot” given in Webster’s International Dictionary. A slung-shot, be it noted here, is not to be confused with a “sling-shot”, i. e., a boy’s toy or catapult. Reference to the case of People v. Williams, 100 Cal. App. 149 [279 Pac. 1040], also indicates that the article in question might properly be described as a slung-shot. In that case, there was found in the pocket of defendant an instrument which the jury impliedly determined was a slung-shot, described in the opinion as follows: “A flat steel wrench about six inches in length and weighing approximately five ounces. In the same pocket was found a looped leather strap about twelve inches long, so contrived by means of wire and leather thongs as to allow the wrench to be placed in a pocket at one end, while the end forming the loop could be slipped over the wrist of the user and held in the hand.” A black-jack is defined by Webster as “a small leather-covered club or billy, weighted at the head and having an elastic shaft”.