People v. Patterson, Cr. 2241

• Decision Date: 06 March 1951
• Docket Number: Cr. 2241
• Citation: 228 P.2d 51,102 Cal.App.2d 675
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. PATTERSON.

Page 51

228 P.2d 51

102 Cal.App.2d 675

PEOPLE v. PATTERSON.

Cr. 2241.

District Court of Appeal, Third District, California.

March 6, 1951.

Oscar A. Kistle, Public Defender, Sacramento, for appellant.

Gail A. Strader, Deputy Atty. Gen., for respondent.

PEEK, Justice.

Following a trial by jury, appellant was found not guilty of the crime of assault with a deadly weapon with the intent to murder, and guilty of a violation of section 4502 of the Penal Code, possession of a deadly weapon by a prison inmate. A codefendant, Mullen, who was charged with a like violation of said section 4502, was found not guilty. Patterson alone appeals from his judgment of conviction and from the order of the court denying his motion for a new trial.

A short summary of the evidence (the sufficiency of which is not attacked) shows that for approximately two years prior to the alleged act appellant Patterson and defendant Mullen had been threatened by the complaining witness Johnson, and that on the morning of the alleged offense Johnson stated to another inmate, from whom he endeavored to obtain a knife, that he was having trouble with Patterson. Some time thereafter as the inmates were standing in the noon hour chow line, an inmate, whom Patterson refused to identify, shoved something into his pocket, saying as he did so, 'You had better take this, that guy [Johnson] is behind you and he is looking for trouble.' Almost immediately thereafter Johnson attacked appellant who reached into his pocket, saw the point of a knife sticking out, pulled it out and told Johnson to drop the knife he was holding. In the ensuing fight Patterson admittedly cut Johnson with the knife he had so obtained.

Appellant contended throughout the course of the trial, which lasted seven days, that he had no knowledge of what the other inmate thrust into his pocket until the attack by Johnson. The record discloses no evidence to the contrary other than that of Johnson, who testified that he did not see Patterson or Mullen in the chow line; that he had had no arguments with either of the two defendants; that he had no conversation with any one on the morning of the fight concerning the defendants, and that he did not know who stabbed him.

Following the instructions by the court, the jury retired at 11 o'clock a. m. At 3:15 p. m. it returned requesting further 'information on what constitutes self defense', whereupon the court discussed and re-read the instructions previously given on that phase of the case. At 4:45 p. m. it again returned requesting that certain testimony be re-read, and that the instructions on self defense be re-read. The court did so, and during the course of the re-reading of such instructions, gave further extemporaneous explanations thereof. At 5:55 p. m. when the jury again returned, the foreman stated:

'We would like a little more explanation of the section 4502 in the Criminal Code.

'The Court: As to the second count and the third count, is that right?

'Foreman Nilsson: Second count.

'The Court: All right, I will read it to you. Section 4502, and as far as pertinent to this case is as follows:'

"Every prisoner committed to a State prison who while at such prison', or any other State prison, that is any person in a State prison, 'possesses or carries upon his person or has under his custody or control any instrument or weapon of any kind commonly known as a blackjack, slingshot, billy, sand club, sandbar or metal knuckles or any explosive substance or any dirk or dagger or sharp instrument is guilty of a public offense.'

After so reading, the court stated: 'Now, I will read it to you again:'

Following the second reading of the quoted portion, the court, turning to Mrs. Ludwigsen, a member of the jury, said: 'If you want to ask a question, you may ask it.

Juror Ludwigsen: Your Honor, I would like to know if there is any further definition of the term 'possession'. And under control, under his control.'

In response to this query the court then stated as follows: 'Well, if it is in his possession, that would be on his person. In this case the question for you to determine is as to whether or not these defendants or either of them had in their or in his possession a knife, and of course, you would have to, all twelve of you, would have to agree upon which knife he possessed, whether it is People's Exhibit 6 or People's Exhibit 7. Now, under his control means to have control of it, but to have in his possession means to be on his person, in his hand or on his person or in his pocket; that is having it in his possession. Now, do you think that makes it plain?

'Juror Ludwigson: Yes, Your Honor.' (Italics ours.)

The sole contention of appellant is that the error of the trial court in omitting to give a formal instruction or definition of the term 'possession' became all the more prejudicial by failure to include any mention of the element of knowledge in the oral instruction above quoted, since by that instruction the jury was, in effect, told that whether or not appellant had knowledge of the presence of the knife was immaterial because the fact of having the knife in his pocket constituted the crime.

In support of his contention appellant particularly relies upon People v. Gory, 28 Cal.2d 450, 170 P.2d 433, 436. In that case guards at a County Honor Farm found particles of marijuana in a locker located at the foot of defendant's bed which, although under his control, was by regulation always kept...