People v. Baker
| Decision Date | 11 August 1955 |
| Docket Number | Cr. 1033 |
| Citation | 135 Cal.App.2d 1,286 P.2d 510 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Vance BAKER, Defendant and Appellant. |
Vance Baker, in pro. per.
Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.
Defendant was charged with the crime of possession of a firearm capable of being concealed upon the person by one previously convicted of a felony, Penal Code, § 12021, and it was further alleged in the information that the defendant had previously suffered six felony convictions for which he had served terms of imprisonment in state prisons. Defendant admitted the six prior convictions and after trial by jury, a verdict was returned finding him guilty of the offense charged. His motion for a new trial was denied and he was sentenced to imprisonment in the state prison for the term prescribed by law. He appeals from the judgment and from the order denying his motion for a new trial and contends that the gun received in evidence was obtained illegally and therefore was inadmissible; that false testimony was received in evidence; that certain hearsay evidence was introduced; that the trial court erred; and that his attorney did not protect his rights.
On January 3, 1955, at approximately 8:15 P. M., state highway patrol officer Shannon and chief petty officer Cattlidge were traveling west on state route 78 at the intersection into Vista (San Diego county) when they observed a Ford automobile which pulled out from one side of the street and proceeded in front of the officers. Shannon testified that ; that the defendant smelled strongly of liquor and was more or less belligerent; that 'I had seen him drive the automobile and in my opinion he was under the influence of intoxicating liquor, so I arrested him for 502'; that he called a tow car and defendant's automobile was taken to a garage in Vista; that they took the defendant to the Oceanside jail and he, Shannon, returned to the garage in about forty-five minutes and found a loaded .38 caliber revolver under the front seat of defendant's car on the driver's side. This gun was taken to the office in San Diego and was thereafter identified in court as People's exhibit 1.
H. D. Thurtle testified that on January 3, 1955, at about 7:00 or 8:00 P.M., the defendant came to his house; that he showed signs of having been drinking and talked rather loudly; that he used abusive language and then went out; that he drove his car into a ditch and when he backed out he threatened to shoot Thurtle's son and said he was also going to shoot his (defendant's) wife and daughter.
Frank Lovell testified that he bought the revolver (People's exhibit 1) at a store in Ocean Beach; that on the evening of January 1, 1955, at about 11:00 P.M. he and the defendant went to Lovell's house and got the gun; that they then went to the residence of a Mrs. Burkhalter in Vista and Lovell there took the shells out of the gun and put it in a desk drawer; that after the defendant had been released on bail he asked Lovell to tell the authorities that he (Lovell) left the gun in the car 'because it would help the situation'; that after the gun was discovered defendant asked him to say that he (Lovell) had accidentally left the gun in the car; that on the day defendant was released on bail he stated to Lovell that the reason he happened to have the gun in his possession was that Danny Burrell gave it to him to take back to Mrs. Burkhalter's house.
Mary Burkhalter testified that she saw the gun in the possession of Danny Burrell on the morning of January 2, 1955; that he took it out of a desk drawer in her house and put it in his waistband and that the defendant was standing by the door.
Mary Durbin (Burrell's sister) testified that in the afternoon of January 3rd her brother borrowed the defendant's automobile to go from her home to the grocery store; that the defendant was at the house at the time; that before leaving, her brother gave her the revolver involved and she put it in a closet; that she and her brother then went to the store and when they returned the gun and the defendant were gone and she did not see the gun again.
On January 4, when questioned by the officers concerning his possession of the revolver, defendant stated he knew nothing of it and further stated that he was the only one who had driven his car on January 3rd. He testified in his own behalf at the...
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