PEOPLE v. BEVINS

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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Mary Ann BEVINS, Defendant and Appellant.*

Cr. 1194.

Decided: October 16, 1959

Jacobs, Jacobs, Hayden & Nelson, Santa Ana, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for respondent.

Appellant was charged in count one of an information with a violation of section 4574 of the Penal Code, a felony, in that on or about the 8th day of February, 1958, she did wilfully, unlawfully and feloniously attempt to bring into a jail, to wit, the Orange County Jail, a firearm and deadly weapon, to wit, a .38 caliber revolver and six live shells. In a second count appellant was charged with a violation of section 4534 of the Penal Code, a felony (assisting a prisoner to escape). And in a third count she was charged with a violation of section 4535 of the Penal Code, a felony (attempt to carry and send into the Orange County Jail a thing useful to aid a person in making his escape, with intent to facilitate the prisoner's escape). A jury found appellant guilty of the offenses charged in the three counts of the information. Her motion for a new trial on counts two and three was granted and counts two and three were dismissed on motion of the district attorney. Probation was denied and appellant was sentenced on count one to the California State Institution for Women at Corona for the time prescribed by law. She appeals from the judgment on count one.

On February 8, 1958, Thomas V. Warren, a trusty in the Orange County Jail, met the appellant at the jail and wrote a pass for her to see her husband, George Bevins, who was a prisoner confined in the jail. Warren asked appellant if she had a package that he was to take in to her husband and appellant stated that she did; that she would have to leave and would be back in about a half an hour. When appellant returned Warren motioned her to the rear of the jail where she gave him a package and ‘two or five’ dollars. The package was about 10 or 12 inches long and 5 or 6 inches wide and in brown wrapping paper. Warren testified that he had no conversation with appellant at that time as to what the package contained and did not know what was in it. After Warren received the package he placed it outside underneath the trash dock, and about an hour later he returned and took it inside to his cell where he opened it and found that it contained a Smith & Wesson .38 caliber revolver and 5 or 6 bullets. The gun and the bullets were wrapped in a pair of shorts and all were in a Southern Comfort Whiskey box wrapped in brown wrapping paper. Warren exhibited the gun to Frank Davis, a fellow prisoner, and then took it outside and put it underneath the trash dock, from whence it was later taken by a police sergeant and the District Attorney and sent to the crime laboratory. David testified that he was a trusty in the Orange County Jail on or about February 8, 1958, and had occasion to go to Warren's cell, where he (Davis) observed a gun and some bullets; that the weapon was a .38 caliber revolver; that after he saw the weapon he told Warren, ‘Let's get this out of here’; that he and Warren then took the gun back out of the jail and Warren took the gun to the trash rack; that on the afternoon of February 23, 1958, he saw the appellant in the alley adjoining the jail and asked her ‘if she was the one that had the package and had given it to Tommie and she said ‘Yes”; that he then said ‘Well, it is still here’; that he asked appellant what she wanted to do and she said ‘that she would like to get it to him, but I would have to see him’, that ‘He is the boss'. The gun was found by the District Attorney of Orange County, under the trash can behind the jail on February 20, 1958, and appellant was questioned by a representative of the District Attorney's office on February 23, 1958, at which time she at first stated that she knew nothing about the gun. Later she stated that she had brought the gun to the jail on a visiting day; that she wrapped the gun and shells in a pair of her husband's shorts, making a package of a liquor carton; that she contacted a trusty at the jail and gave him all the change she had in her purse; that she thought she had given him about four or five dollars and that it was all her own idea; that she had talked to her husband about it and the reason she did it was because she wanted her husband home. When asked whether Warren had been told that the package was a gun when she handed it to him she said ‘No’ that it was wrapped in a whiskey container or box and that Warren thought it was whiskey.

Appellant first contends that prejudicial error was committed by the trial court in its failure to instruct the jury that it must determine if any witness was an accomplice and if so that their testimony must be viewed with distrust and corroborated by other evidence that will tend to connect the defendant with the commission of the offense.

An accomplice has been defined as one who knowingly, voluntarily and with common intent with the principal offender unites in the commission of the crime (People v. Lima, 25 Cal.2d 573, 578, 154 P.2d 698). In our case the record shows that appellant gave Warren a package to take to her husband in jail. She stated that she did not tell Warren that the package contained a gun when she gave it to him; and that he thought it was whiskey; that the gun was wrapped in a pair of her husband's shorts, in a liquor container, and wrapped in brown paper. Warren testified that he did not know that the gun was in the package until he examined it in the jail, and the evidence shows that when he found out that the gun was in the package he showed it to another prisoner and they took it outside where Warren placed it under a trash can. While a witness (Lester G. Rich) testified that Warren offered to sell him a pistol for $50, while they were fellow prisoners, his testimony does not show that Warren referred to the gun involved or that he knowingly, voluntarily and with common intent with appellant united in the commission of the crime charged. Under these circumstances no reversible error was committed by the trial court in failing to instruct on its own motion relative to accomplices and corroboration of their testimony.

Appellant's next argument is that prejudicial error was committed by the trial court in its failure to instruct the jury on the effect of the court's rulings on counsel's objections to the admissibility of evidence. We are not in accord with this argument. Counsel for appellant did not request or offer any instructions to the jury at the trial herein. In People v. Williams, 153 Cal.App.2d 5, 9, 314 P.2d 161, it is held that while the court must, in all cases, inform the jury that they are exclusive judges of all questions of fact submitted to them, it is an established rule that instructions as to specific matters must be requested. See also People v. Fowler, 178 Cal. 657, 663, 174 P. 892, and People v. Holbrook, 45 Cal.2d 228, 233, 288 P.2d 1, 4, where the court said: ‘It is true that in some situations a court must, of its own motion, instruct upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence (citations), but the court, in the absence of a request, was not required to give an instruction limiting the purposes for which the evidence could be considered (citations).’

Appellant further claims that prejudicial error was committed by the trial court in its failure to instruct the jury that each count set forth in the information charges a separate and distinct offense and that they must consider the evidence applicable to each offense separately, uninfluenced by the fact that their verdict as to any other count was in favor of or against the defendant. This contention is likewise without merit. The record shows that appellant was ultimately convicted and sentenced only as to the charged alleged in the first count of the information, to wit, that of attempting to unlawfully bring a firearm (.38 caliber revolver and 6 live shells) into the Orange County Jail. The other two counts in the information were dismissed after a motion for a new trial had been granted. The failure of the trial judge to give, on his own motion, an instruction as to the separateness of the offenses charged was not prejudicial error when no such instruction was offered or suggested by appellant (48 Cal.Jur.2d sec. 462, pages 472 and 473).

It is next claimed that prejudicial error was committed by the trial court in its failure to instruct the jury, on its own motion, that it must determine whether the defendant's confession was voluntary or involuntary and if involuntary that they must disregard it. In the instant case appellant admitted giving the confession but claimed that she was under duress at the time. The trial court instructed the jury in this connection as follows:

‘The law of this state requires that you view with caution any evidence that purports to relate an oral admission of the defendant or an oral confession by him.’

Here again appellant was not prejudiced by the failure to give a further instruction on the subject since no further specific instruction was requested by appellant in the trial court. People v. Mahoney, 146 Cal.App.2d 485, 497, 304 P.2d 73.

Finally, appellant claims that the evidence was insufficient to establish a violation of section 4574 of the Penal Code. That section provides that:

‘Any person, who brings into any State prison or prison road camp or prison forestry camp, or other prison camp or prison farm or any other place where prisoners of the State prison are located under the custody of prison officials, officers or employees, or any jail or any county road camp in this State, or within the grounds belonging or adjacent to any such institution, any firearms, deadly weapons or explosives is guilty of a felony and punishable by imprisonment in the State prison for not less than one year.’

The evidence discloses that appellant gave the gun to Warren, who was a trusty and a prisoner occupying a cell in the Orange County Jail. The witness Davis saw the gun and talked with appellant about her purpose in giving the gun to Warren and she stated to him that she was the one who had given the gun to Warren and that she would like to get the package in to the ‘boss'. The package was given to Warren outside in the alley, within the grounds adjacent to the jail. While appellant did not personally take the gun into the jail, the evidence shows that she delivered it to Warren for that purpose. In People v. Waid, 127 Cal.App.2d 614, 274 P.2d 217, 219, appellant was convicted under section 4573.5 of the Penal Code, forbidding a person to ‘bring’ specified drugs into a State prison; and because he was shown to have sent the drugs by mail from Los Angeles to the Chino Prison in San Bernardino County, he contended that he could not be guilty of violating the statute. The court there said:

‘Looking to the intent of the legislature, it must be conceded that its intent was to prevent such drugs from getting into a prison. A person can effect such purpose by either bringing the drugs in his own hands or by placing the drugs in the possession of an efficient agent for delivery into the prison.’

In the case at bar it is apparent that the intent of the legislature, by enacting section 4574 of the Penal Code, was to prevent the bringing of any firearms, deadly weapons or explosives into jails.

The evidence is sufficient herein to sustain the conviction of appellant of the offense charged in count one of the information.

Judgment affirmed.

MUSSELL, Justice.

GRIFFIN, P. J., and SHEPARD, J., concur.