People v. Pope

• Decision Date: 13 March 1959
• Docket Number: Cr. 3560
• Citation: 168 Cal.App.2d 666,336 P.2d 236
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Andrew Emmette POPE, Defendant and Appellant.

Page 236

336 P.2d 236

168 Cal.App.2d 666

PEOPLE of the State of California, Plaintiff and Respondent, v. Andrew Emmette POPE, Defendant and Appellant.

Cr. 3560.

District Court of Appeal, First District, Division 1, California.

March 13, 1959.

Rehearing Denied April 10, 1959.

Hearing Denied May 6, 1959.

David Henry Gill, Pacific Grove, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant was convicted of a violation of section 4502 of the Penal Code in that, while an inmate of a state prison, he was in the unlawful possession of a knife.

There can be no doubt that on the date in question, March 20, 1958, defendant was in possession of a knife. The knife was found in his cell. Defendant makes no contention to the contrary. It is his contention that there is no substantial evidence that he had the requisite knowledge of the fact that the knife was in his cell; in fact, he contends that the evidence is to the contrary. An examination of the record shows that, on this basic issue, the evidence was in conflict.

The defendant admitted three prior felony convictions, including the one for which he was serving time in Soledad Prison in March of 1958. The judgment here appealed from provides that the sentence shall run consecutively with the sentence defendant was serving when the offense here involved was committed.

On March 20, 1958, the prison officials conducted a routine search of the prisoners and their cells at Soledad. A correctional officer, Jones by name, searched defendant and his cell. Defendant was the sole occupant of that cell. Jones testified that there was a stack of papers laying on defendant's bunk, and that inside these papers he discovered the knife. At the very instant of discovery, and before Jones had examined the balance of the papers, defendant stated: 'You found all there is to find.' The next day, on March 21, 1958, a discipline committee hearing was held at the prison. One Burnett, an associate warden, read a report of the discovery of the knife to defendant and asked him how he pleaded. Defendant replied that his plea was 'not guilty.' When Burnett asked defendant if he had ever seen the knife before '[h]e said that he had seen it in his cell, that one of the fellows had passed it to him to admire the good workmanship on this knife * * * while he was looking at this knife in his cell, he said someone came by, some unidentified inmate and said, 'The goon squad is coming. Give it back.'' The witness also testified that defendant then stated that he told this unidentified inmate "To hell with you,' or words to that effect, and threw the knife on his bed.' The knife was actually hidden in the newspapers.

It is true that the version of the incident given by defendant and his fellow prisoner witnesses at the trial differed materially from that of the witnesses for the prosecution. One prisoner, Munroe by name, testified that during the serving of breakfast on the morning in question, he handed to defendant a bunch of newspapers that another unidentified inmate had given him to deliver to defendant, and that defendant placed the papers on his bed without looking at them. A minute or so later the prison officials arrived to make the search that revealed the knife. This same witness testified that after defendant's clothing was searched, defendant did not remain in or in front of his cell, but went up to another tier of cells. This was corroborated by another prisoner witness. Another prisoner testified that on the morning of the search he had sent a bundle of newspapers to defendant via Munroe, and that he had secured these newspapers from various places, including 'from a fellow downstairs.'

Defendant's testimony was to the effect that he had been handed some newspapers which he had just placed on his bunk when the search was made. After his clothing had been searched he went upstairs and did not know that the knife was discovered until one of the officiers called him downstairs. He specifically denied making either of the admissions about the knife testified to by the officers.

There was substantial evidence from several prison officials to the effect that, after defendant was personally searched, he did not go upstairs but, at all pertinent times, remained directly in front of his cell. Other prison officials testified...