People v. Marcus

• Decision Date: 13 June 1955
• Docket Number: Cr. 2498
• Citation: 284 P.2d 848,133 Cal.App.2d 579
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank MARCUS, Defendant and Appellant.

Page 848

284 P.2d 848

133 Cal.App.2d 579

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank MARCUS, Defendant and Appellant.

Cr. 2498.

District Court of Appeal, Third District, California.

June 13, 1955.

Hearing Denied July 13, 1955.

Richard M. Grossberg, Sacramento, for appellant.

Edmund G. Brown, Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from an order denying a new trial and from a judgment entered upon a jury's verdict which convicted appellant of an assault with a deadly weapon upon one Richard Smith, and of three counts of possessing a sharp instrument or knife while he was an inmate of a state prison. Penal Code, secs. 4500 and 4502. He was acquitted upon a fifth count charging him with an assault with a deadly weapon upon one George Heck.

Appellant has been imprisoned at Folsom Prison since 1949. The victim of the assault of which he was found guilty was a fellow inmate. Appellant challenges the sufficiency of the evidence and also contends that as to all the offenses of which he was convicted he acted without criminal intent and for the sole purpose of being brought to trial so that he could testify to the cruel and inhuman treatment to which he has been subjected at the prison.

Appellant's intentions and purposes in possessing a deadly weapon in violation of Section 4502 of the Penal Code are wholly irrelevant. That section 'absolutely prohibits all prisoners in any state prison, without qualification, from possessing or carrying on their persons certain designated deadly weapons. The intention with which the weapon is carried on the person is not made an element of the offense.' People v. Wells, 68 Cal.App.2d 476, 481, 156 P.2d 979, 981; People v. Marcus, 120 Cal.App.2d 347, 348, 260 P.2d 1051. There was no need of proof of evil motivation. Appellant's admission that he possessed a sharp knife or instrument while he was imprisoned at Folsom established the three violations of Section 4502 of the Penal Code.

Appellant's intent was an essential element in the proof of his guilt of the assault charge. People v. Wells, 33 Cal.2d 330, 346, 202 P.2d 53. The trial court admitted evidence of the mental state of the appellant at the time of the commission of the overt acts. Appellant testified in his own behalf and was permitted to narrate at length as to how he had schemed to be charged with some offense for which he would be brought to trial so that he could thereat expose the bestial treatment to which he claimed the inmates at Folsom Prison were subjected. Twelve fellow inmates, the prison physician, and a priest testified that appellant had frequently declared that he intended to get caught doing something for which he would be brought to court where he could denounce the prison officials. Into this matter of intent he was allowed to go fully. But he complains that his court-appointed counsel failed to call witnesses who would testify as to the facts of mistreatment, such as that he had been left in a cell for forty hours without a drink of water. Such evidence would have been at most cumulative on the issue of intent and immaterial for any other purpose. Moreover, the record does not show that the court refused to subpoena any witnesses requested by the appellant. George Heck, a victim of one of the charged assaults, was brought from Folsom to attend the trial. He testified that the assault committed upon him was feigned and done pursuant to a prearranged plan between him and appellant and in furtherance of appellant's desire to do something for which he would be brought to trial so that he could testify to the conditions that prevailed at Folsom. The jury obviously afforded credence to this explanation as appellant was acquitted of the charged assault upon George Heck. However, no such excuse for the assault upon Smith was asserted. Appellant admitted that a fist fight started between the two and that after the officers separated them, he deliberately scratched Smith with a knife. He said he did so in such manner that no serious injury could be caused thereby. He disavowed any intent to do more than he did, that is, nick or scratch Smith. The prison physician, who examined Smith immediately after the incident, testified that he found a superficial scapular wound which penetrated the outer surface of the skin and which amounted to no more than a scratch. The doctor further testified that this could not have been done by 'a direct pressure against one point in the skin. It had to be scuffed one way or the other from the point of entrance to cause that type of wound' and it appeared 'that there was a limited amount of force, or it certainly would have gone through the skin.'

There is no direct evidence that appellant struck Smith with sufficient strength 'to commit a violent injury', Penal Code, sec. 240, or that he wielded the blow with such force as could cause great bodily harm. However, the jury's implied finding that appellant so did must be upheld. Two guards testified that after they overpowered and disarmed appellant, he threatened to kill Smith. Appellant admitted that prior to the altercation he had had 'an argument' with Smith and told him 'if we have to fight, we are going to fight'. From that evidence the jury could infer that, due to animosity, appellant intended to and did strike Smith with sufficient force 'to commit a violent injury'. Penal Code, sec. 240.

Appellant argues that at the time he assaulted Smith he was not ...