People v. Taylor

WILLIS, J., pro tem. Appellant was found guilty by the court below, William S. Baird, judge presiding, sitting without a jury, of the crime of knowingly and feloniously having in his possession a certain cartridge containing and capable of emitting tear gas, contrary to the provisions of Act 2955, Leering’s General Laws (vol. 1, p. 1423). Prom the judgment entered by Thomas P. White, judge presiding, this appeal is taken, appellant relying upon two contentions: (1) insufficiency of evidence to establish the fact that he knew the cartridges in his possession contained and were capable of emitting the substance known as tear gas, and (2) error in admission of evidence over his objection.

On March 13, 1934, appellant was taken into custody by officers, who searched his person and in an outside coat pocket found three loaded and unexploded cartridges containing the substance known as tear gas and capable of emitting such substance by a firing of the cartridge from a .38 caliber special revolver, a billy club or a fountain pen gun. Being asked if he knew what the cartridges contained he stated that he was not sure—that he had not used them yet. The officers searched his person and clothing, his automobile and his apartment and found no revolver, no billy club or fountain pen gun, nor any instrument by which such cartridges could be readily exploded or fired.

On behalf of defendant a witness, M. D. Knott, who resided with defendant, testified that on March 11, 1934, he saw the latter at his automobile with the seat upside down, and that defendant showed him these cartridges and said, “Do you know anything about them?” and “What are they?”; that the witness replied, “They look like blank cartridges.” Defendant testified that on March 11, 1934, he found these three cartridges lying in a crack back of the seat of his automobile; that he showed them to Knott and asked him if he knew what they were or who left them there; .that he had loaned the auto the night before to his brother Aubrey, and that he- asked his brother if he had left them there or knew anything about them and that he said he did not. He testified that he thought they were blank cartridges and that he had never had a fountain pen gun that would discharge such cartridges. Aubrey Taylor testified [222]that defendant showed him the cartridges on March 11th and asked him if he had left them in the auto.

In rebuttal the district attorney called as a witness one Jack Poe, and asked him if he had ever seen defendant in possession of a fountain pen that would shoot tear gas shells, to which the witness answered, “Not that I know of.” He testified he might have seen him with a fountain pen. He was then asked if he did not make a statement to an officer to the effect that defendant did have a fountain pen that would shoot these tear gas shells, to which he answered “No.” Over defendant’s objection the court then permitted the district attorney to ask the witness if he had not told certain officers that defendant had a pen that would discharge tear gas shells, and the court also denied a motion to strike such testimony, based on the ground that it was an attempt by the prosecuting attorney to impeach his own witness. The district attorney did not claim surprise in respect to the witness’ first answers, but the court overruled the objections and' denied the motion on the assumption that the prosecutor was taken by surprise or he would not be asking the question. Thereupon the district attorney called three officers in succession, who were permitted to testify over defendant’s objection that on March 13, 1934, they were present at a conversation with the witness Jack Poe, defendant not being present, in which Poe stated that defendant had had a fountain pen which would shoot tear gas shells.