PEOPLE v. SIMPSON

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District Court of Appeal, Third District, California.

PEOPLE v. SIMPSON et al.†

Cr. 1616.

Decided: April 12, 1938

John R. Cronin, of Stockton, for appellants. U. S. Webb, Atty. Gen., Gordon S. Hughes, Deputy Atty. Gen., and F. C. Clowdsley, Dist. Atty., and Maxwell M. Willens, Deputy Dist. Atty., both of Stockton, for the People.

On the 20th day of December, 1937, the district attorney of the county of San Joaquin filed an information charging the defendants with the crime of grand theft, in that they did, in said county, steal and carry away twelve magnetos of the value of $300, lawful money of the United States, the personal property of the California Tractor & Equipment Corporation. Upon the trial following the filing of said information the defendants were found guilty as charged, to wit, of a felony, in that the property stolen was over the value of $200.

Upon this appeal it is urged that the value of the property was not of the sum of $200, lawful money of the United States, but was of a lesser value, and that the defendants should have been convicted of the crime of petit larceny, rather than of the crime of grand theft, which would have resulted in a sentence to the county jail instead of to state prison.

It is also urged as a ground for reversal that the court committed prejudicial error in permitting some evidence to be introduced as to the cost of reinstalling the magnetos upon the machines from which they were taken.

A motion was made for a new trial after the rendition of the verdict on the grounds that the evidence was not sufficient to sustain the verdict. This motion, after consideration by the trial court, was denied, and sentence pronounced upon the defendants.

The principal contention made by the appellants is to the effect that the property is not shown to have been of the value of $200. An examination of the record shows that the People called five witnesses, all of whom testified that the value of the magnetos was considerably in excess of the sum of $200; the values being placed by the different witnesses at from $25 to $40 apiece, depending upon the character and manufacture of the various magnetos, some of which were of American manufacture and some of German manufacture.

The defendants, for the purpose of controverting the People's witnesses as to the value of the magnetos, called five witnesses. These witnesses testified that the value of the twelve magnetos was less than the sum of $200.

An examination of the qualifications of the various witnesses shows that the witnesses called by the People were engaged in a business which gave them an understanding of the value of magnetos, while the evidence on the part of the defendants, with the exception of one, showed that they were simply employees of wrecking companies, and were not engaged in a line of business which would give them knowledge of the value of magnetos.

Mr. C. B. Rohn, the owner and manager of the California Tractor & Equipment Corporation, after describing the various magnetos, and where they were manufactured, testified that the American magnetos were worth at least $25 apiece, and the Robert Bosch magnetos were worth $35 apiece; that the six–cylinder Bosch magnetos were worth $35 apiece; that the “I. H. C.” magneto is worth $35. A calculation of this testimony fixes the value of the twelve magnetos much in excess of $200. The testimony of Mr. Rohn also shows that they were in a usable condition. This witness later testified as to what it would cost to replace the magnetos upon the machines from which they were taken. This testimony we will consider later on. Mr. Rohn also testified that he had been familiar with the value of magnetos and handled machines so equipped for a number of years. A witness by the name of Neil Guyman testified to the same effect.

Mr. Boyce, a witness for the plaintiff, testified that he had been handling magnetos and repairing the same for about ten years; that he had been in the employ of a Mr. Grimsley during that time, and was familiar with the different kinds of magnetos. His testimony was to the effect that they would range in value from $20 to $35 apiece, depending upon their manufacture. His testimony was to the effect, also, that he was familiar with the market price.

A witness by the name of Cooper testified that he had been engaged in business for about five years, which gave him knowledge of the value of magnetos; that he was familiar with the market value thereof; and that the value of the magnetos in question would range from $20 to $35, depending upon where the same were manufactured.

A witness by the name of Grissel testified that he had been in business for nineteen years; that he was the proprietor of a tractor company, and was familiar with the value of magnetos. This witness placed the value from $25 to $40, depending upon the manufacture; the greatest value being placed upon the German Bosch magnetos. We may here add that the magnetos taken were taken from the tractors.

It was for the jury to determine the effect and value of the evidence upon which they were called upon to pass, and if they believed the testimony to which we have referred, there is abundant evidence in the record to establish the market value of the twelve magnetos much in excess of the sum of $200. It was for the jury to determine whether witnesses who had been handling magnetos and who were familiar with the market value thereof, was in any way overcome by the testimony of witnesses who were simply engaged as employees in wrecking automobiles.

As to the testimony of the one witness who had had some experience in handling magnetos, it was likewise for the jury to determine whether his testimony bore the stamp of credence, or whether it was of such a nature as not to militate against the testimony of the witnesses to which we have referred. Likewise, it was a question for the trial court to determine upon the motion for a new trial.

Section 484 of the Penal Code, as amended by St.1935, p. 2194 specifies that in determining the value of the property taken, the reasonable and fair market value shall be the test. As to the testimony relating to the cost of reinstalling the magnetos, we are of the opinion that the court was in error in admitting such testimony. However, an instruction given by the court clearly shows the basis upon which the jury should determine the value of the property. That instruction is in the following words: “You are instructed, for the purpose of this case, in determining the value of the property stolen, if it has been stolen, the reasonable and fair market value thereof, in the condition and in the place where it was at the moment such property was stolen, is the proper test of its value.” This instruction is based upon the case of People v. Ciani, 104 Cal.App. 596, 286 P. 459. We do not need to quote from this latter opinion, but just simply refer to it and to the authorities there cited, as amply supporting the instruction given by the court in this case.

There being testimony amply sufficient to support the conclusion of the jury that the property was worth more than $200, the testimony to the effect that it would cost so much to reinstall the magnetos could not be prejudicial, and thus the provisions of section 4 1/2 of article 6 of the Constitution applies, and we would not be warranted in reversing the judgment of the trial court on account of the admission of such testimony.

The defendants did ask the court to give an instruction to disregard the testimony as to the cost of reinstalling the magnetos. This requested instruction was denied, and is assigned as prejudicial error. In view of the fact that the court gave the jury a correct instruction as to how they should determine the value of the property, limited to the fair market value thereof, we think that no prejudice resulted from refusing to give an instruction relative to excluded testimony as to the cost of reinstallation of the magnetos.

It further appears that the district attorney in his argument to the jury did refer to the cost of installation. However, the record fails to show that the defendants took any exception to the arguments of the district attorney. No question is raised as to the fact of the defendants having stolen the twelve magnetos, and from what we have set forth, we think there is sufficient testimony in the record to justify the verdict of the jury, and that the defendants have suffered no prejudice by reason of any errors committed by the trial court.

The judgment and order are affirmed.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.

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