San Diego

The jury in the Sagon Penn trial asked the judge Friday whether they should treat as a crime the fact that Penn ran over a wounded policeman--a charge that Penn was acquitted of in his first trial.

Superior Court Judge J. Morgan Lester told jurors that they could not consider the incident involving Police Agent Donovan Jacobs as a crime because the first jury had acquitted Penn of that offense. He told them that the first jury found no intent to kill on that count.

However, the judge told them that, while they can’t treat the incident as a crime, they can discuss it because the incident was submitted as evidence in his current trial.

“You may consider it or not consider it. There is no charge involving it,” Lester told jurors, who were in their eighth day of deliberations.

The note from jury foreman Howard McDowell that was passed to the judge read:

“During the trial there was testimony regarding Penn leaving the scene in Jacobs’ car, and Jacobs was run over by the car. A question came up regarding Penn’s state of mind regarding running over Jacobs while leaving the scene.

“We would like to have some clarification on this issue during our deliberating process. Can this issue be considered or not?”

Penn, 25, was acquitted of attempted murder for running over Jacobs following the Mar. 31, 1985, shootings that left Police Agent Thomas Riggs dead and Jacobs and civilian ride-along Sarah Pina-Ruiz wounded.

Before Lester advised the jury, Deputy Dist. Atty. Mike Carpenter told Lester that the incident was relevant because it showed Penn was leaving a crime scene.

Penn’s attorney, Milt Silverman, asked Lester to tell the jury that Penn was acquitted of the offense and that no intent to kill Jacobs was established.

Penn, who is free on $25,000 bail, showed up to hear the jury’s question and the judge’s answer.