People v. Washington

SHINN, P. J. Defendant was accused of violating the Dangerous Weapons Control Law (Pen. Code, § 12021) in that he willfully, unlawfully and feloniously had in his possession and under his custody and control, a .38 Special Smith & Wesson chrome-plated revolver, capable of being concealed upon the person. He had previously been convicted of assault with intent to ravish, a felony, in Alabama, and is still on parole for that offense. The trial was to a jury and after a verdict of guilty the court suspended proceedings and granted probation for a period of five years, the first two years to be spent in the county jail. Defendant appeals from the judgment (Pen. Code, § 1237) and the order denying him a new trial. The sole contention raised on the appeal is that the court erred prejudicially in making certain remarks to the jury after it had reported its inability to agree upon a verdict.

Roosevelt Harper, a witness for the People, testified that he had been at defendant’s home during the early morning hours of June 18, 1955 and returned there about 5:30 a. m. to get a camera which he had left by mistake. He then walked to his own home and as he passed from 'the rear to the front of his house he saw defendant sitting in his own car nearby. Defendant called him over to the car. Defendant accused him of stealing $65 which he denied. He testified that he saw a revolver in a holster on the seat and that defendant picked up the gun and held it in his hand. Harper then told defendant that he would ask his wife if she would write a check for the $65, went into his house and called the police. After telephoning he returned to the ear and told defendant to get rid of the gun. Defendant said “what gun” and suggested that Harper was drunk. The police officers who answered Harper’s call searched both men, but found no gun. They told Harper that he may have been mistaken and defendant started to drive away.

Officer Bignell testified that he and his partner, Officer Chapman, arrived at about 6 a. m. They searched the men and the car but did not find the gun; that shortly after defendant began to drive away, he looked in the bushes on the [343]west side of Harper’s house and found the gun and holster. He then stopped defendant and placed him under arrest.

Officer Chapman stated that he had a conversation with defendant at the police station and that defendant admitted hiding the gun in' the bushes. Detective Inspector Harvey testified to a similar conversation. A fingerprint expert testified that a fingerprint pattern found on the gun was the same as one taken from defendant two days after the arrest. It was stipulated that the gun belonged to a George Grey, who resided in the same house as defendant.