Opinion
Rehearing Denied July 21, 1964.
Michael F. Perrett, Ventura, (by appointment of the District Court of Appeal), for appellant.
Stanley Mosk, Atty. Gen., Willaim E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., Ventura, Edwin M. Osborne, Chief Criminal Deputy, Edwin L. Laing, Deputy Dist. Atty., for respondent.
ROTH, Justice.
Appellant was convicted of violating Penal Code, section 12020, to wit: possession of an instrument or weapon of the kind commonly known as a billy.
On the night of March 25, 1963, two sheriff's deputies noticed an unlighted unoccupied car, parked facing the wrong way and protruding two feet onto Las Posas Road, a street in Ventura County. The traffic hazard thus created caused the deputies to investigate. One checked by radio to see if the car was a stolen vehicle, while the other looked through the windows for a registration slip. Finding none on the steering column or sun visor, the deputy entered the car, looked for the slip and during the course of such search, discovered an object that had been a baseball bat. The object was twenty inches long. It was apparent that its original handle had been broken off. The bat thus shortened was taped at the end which had become the improvised handle. The instrument described was put into the patrol car and the deputies proceeded to a nearby gas station to call for a detective.
Appellant was arrested at the gas station after he identified the parked car as his. When he was queried about the bat, he denied knowledge of it.
Detective Murphy testified that when he interviewed appellant the next day in the presence of detective McCarty, appellant admitted that he owned the bat and that he had possessed it for two years during which two year period he had carried the bat in other vehicles and that on at least two occasions he had used it to strike people.
Detective McCarty testified that at the interview above detailed, appellant admitted having used the bat for self-defense on a number of occasions in the Tenderloin area of San Francisco; and that appellant referred to the instrument as a billy.
The testimony of the detectives was received for the limited purpose of showing what appellant considered the instrument to be in terms of appellant's possession. The jury was so instructed.
Appellant took the stand and testified that the 'majority' of the testimony of the detectives was true. On cross he admitted possession of the bat but denied he considered it a billy and described it as 'a baseball bat with a broken handle'. Over objection, appellant was asked whether he had been previously arrested * * * 'for possession of an instrument * * * in the nature of a billy?' Appellant answered affirmatively, but on re-cross he asserted that the object involved in the prior arrest was an ice crusher, five and a half inches long.
Penal Code, section 12020 provides that 'Any person in this State who * * * possesses any instrument or weapon of the kind commonly known as a blackjack, slung shot, billy, sandclub, sandbag, or metal knuckles, * * * is guilty of a felony, * * *.' It has been held in this jurisdiction that the intent of the legislature in passing this statute was to outlaw instruments ordinarily used for criminal and unlawful purposes and not to limit its coverage to the exact articles listed therein, but to include those which may not conform rigidly to the definition of those mentioned People v. Mulherin,
People v. Canales, State v. Witcher,In Canales, supra, the court 12 Cal.App.2d at page 217, 55 P.2d at page 290 described the object in question as follows:
'* * * [A] club 15 1/4 inches long, thicker at one end than the other, with nails driven into the larger end and covered with tape. The other was a straight, smooth piece of wood about the thickness of a pick handle, eighteen inches long.'
Referring to both objects, the court said 12 Cal.App.2d at page 218, 55 P.2d at page 290:
'So appellant would have us say that the two exhibits received in evidence are not the kind of instruments prohibited by the statute because of their shape and size, and particularly because the instruments offered in the instant case are too long to be concealed upon the person. In the first place, we cannot say as a matter of law that a club of the diameter of a pick handle, 18 inches in length, cannot be concealed upon the person, but would be inclined to take judicial knowledge of the fact that such an instrument can be concealed upon the person. However, we do not believe that the element is a governing quantity in such a weapon. Appellant attempts to read into the statute and apply to instruments of a kind commonly known as black-jacks or billies, the ability to conceal upon the person, but in the title to the act and in the text itself the question of concealment on the person is applicable only to pistols, revolvers, explosive substances, dirks, and daggers.'
However, in People v. Golden, 76 Cal.App.2d 769, at page 771, 174 P.2d 32, at page 33, the court in referring to an object said the following:
'It is evident from a reading of the foregoing statute that the possession of a 'monkey fist' is not made illegal by such act nor is a 'monkey fist' commonly known as a black-jack, slungshot, billy, sand-club, sandbag or metal knuckle. Hence it is clear that there is a total absence of any evidence to sustain defendant's conviction of a violation of the aforementioned law.'
In Golden, the object looked like a blackjack or slungshot, but it actually was a monkey fist. A monkey fist '* * * is a weight attached to the end of a line so that when a line is heaved or thrown it will reach the dock.' (Golden, supra, 76 Cal.App.2d page 770, 174 P.2d page 33.)
People v. Visarities, 220 A.D. 657, 222 N.Y.S. 401 appears to be on all fours with the case before us. At page 402 of 222 N.Y.S. the court says:
'The instrument found in the possession of the defendant was an iron bar about twenty inches long and three-eighths to a half inch in diameter. The question presented is whether the defendant was possessed of an 'instrument and weapon commonly know as a bludgeon.''
In Visarities the information charged defendant with the violation of section 1897 of the New York Penal Code which was almost identical to section 12020 of our Penal Code before its repeal in 1963.
The court said 222 N.Y.S. at page 403:
'To base a conviction on mere possession, it must clearly appear that the thing possessed answers the description of one of the prohibited instruments or weapons. We are The court continues 222 N.Y.S. on page 403:
'As mere possession constitutes the offense, it would follow, if the people's contention is sound, that one in possession of a piece of crowbar, heavy wrench, hammer, or other similar piece of iron or heavy material capable of use as a weapon could be convicted of a violation of that portion of the statute now under consideration. Such a result was never within the contemplation of the Legislature.'
There was no evidence in the New York case such as was admitted in the case at bar, but the factual circumstances in the New York case which were at least as implicating, are discussed by the court 222 N.Y.S. at page 403, where it said:
'* * * The fact that the defendant was on a strike and had the iron bar partly concealed under his coat when arrested might be regarded as some evidence of his intent to use. However, we are not called upon to pass upon this question, in view of the form of the information.'
The information charged possession which is all that could be charged under the California Penal Code section. In New York the numbered section referred to permitted charge of possession of a dangerous weapon (any weapon) with intent to use.
The New York court indicated that it was not unmindful of the fact that conformity to an exact definition of the object described in the statutes is not required, thus it said 222 N.Y.S. at page 403:
'We are referred by the district attorney to the case of People v. Kennedy, 164 N.Y. 449, 58 N.E. 652, where a lead pipe some thirteen inches in length was referred to as a bludgeon. However, it is to be observed in that case that an iron rod had been inserted in the pipe and it was wound at one end with tape. Obviously there is a clear distinction between such an instrument, which bore evidence of special preparation for use, and the iron bar found upon this defendant.'
Webster's New International Dictionary, Second Edition, defines 'billy' as 'a bludgeon; a club; esp., a policeman's club.' Words and Phrases, Permanent Edition, defines 'billy' as a bludgeon carried in pocket, or policeman's club. (People v. Mulherin, supra and State v. Witcher, supra.) The trial court gave the following instruction to the jury: 'A billy is defined as a bludgeon; a club; especially a policeman's club. A bludgeon is defined as a short stick, with one end loaded, or thicker and heavier than the other, used as an offensive weapon: hence any clublike weapon.' (Emphasis added.)
We believe that the instruction is prejudicial error and that the nature of the object and whether it is included in the statute is a matter of law and should have been decided by the court.
In Golden it is clearly held by the court that possession of a 'monkey fist' which looks as much like a blackjack or a sandbag as those very articles is not within the statute. An aborted bat is not made illegal by the statute any more than is a child's bat which latter could also be used with lethal effect, nor is an aborted bat or The decisions in this state appear to support affirmance or reversal. We think, however, that the Visarities and Golden cases most closely parallel the situation in the case at bar and should be decisive.
The judgment is reversed.
FOX, P.J., and HERNDON, J., concur.