PEOPLE v. SMITH

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District Court of Appeal, Second District, Division 3, California.

PEOPLE v. SMITH.*

Cr. 3837.

Decided: January 24, 1945

Morris Lavine, of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and Carl S. Kegley, Deputy Atty. Gen., for respondent.

Defendant was charged with five offenses of buying and receiving stolen property, consisting of a gun and five radios which had been stolen from cars. On a trial without a jury he was convicted of three offenses of receiving stolen radios. Upon his appeal he urges insufficiency of the evidence to prove that he received the property or had knowledge that it had been stolen, and relies upon certain alleged errors of law. He also contends that the radios were brought into his shop in a single transaction and that this could not be split up into several offenses.

One Stepzinski stole six radios out of cars and took them to defendant's radio shop. Outside the shop he held a brief conversation with defendant, carried two radios into the shop and placed them on the floor or counter, returned to his car and brought in two more and placed these on the floor. Defendant took two of them and placed them on the floor behind the counter. Officers entered the store immediately behind Stepzinski and arrested the two men. Seven radios were taken from the shop by the officers; three of them which were brought in by Stepzinski were identified at the trial by the owners as having been stolen from their cars. This evidence, alone, was sufficient to call for an explanation by defendant of the circumstances under which the radios were brought to his shop. He was in the business of repairing and selling car radios. He had known Stepzinski for some two years; about a week before his arrest Stepzinski had come to his shop and proposed that he bring defendant some radios. Stepzinski testified that he asked defendant if he needed any radios and defendant answered that he did; that he told defendant that he could get some—that he would take them out of cars, and defendant answered, ‘Bring them around.’ Nothing was said as to what defendant would pay for them. Stepzinski testified that defendant had not purchased them. Defendant admitted having told Stepzinski to bring in some radios but testified that they were to be brought in for repairs and that he had no intention of purchasing them. The statement of the evidence in defendant's brief and which he contends was insufficient goes no further than the above recital. We shall carry it further, for there was much else in defendant's conduct and statements which bore directly upon his knowledge, motives and intentions. The officers asked Stepzinski in the presence of defendant, prior to the arrest, if he had brought in some radios and he answered that he had not. Defendant said nothing. After the arrest they asked defendant if he had other radios and he said he had only three, the ones the officers had not taken from the shop. He told one of the officers that he had told Stepzinski that if he wanted to bring in some auto radios and they were of a usable type he would buy a few. The officers located a room and garage rented by defendant at a location other than where he lived. Here they found a .22 Colt automatic, a holster and clip, and in the garage 32 car radios of various makes. When questioned about them defendant said he had purchased them from an ex-convict, Dave Wagner, including the gun holster and clip, for which he had paid Wagner $10. He stated that he had purchased not more than 50 radios from Wagner, and when an officer asked him how long he had been buying ‘hot radios' from Wagner he said he had been buying radios from him for a year or so. When asked whether he knew the radios had been stolen he replied, ‘No, I couldn't say that I knew definitely they were stolen radios.’ He was asked whether he ‘suspicioned’ they were stolen and replied, ‘Not necessarily, because the radios were always clean and no wires were cut’; and he testified that if a radio was brought into his shop with the lead wires cut he would say that it was stolen or taken out of a car by some one that was careless or reckless. He testified that he might have told the officers that the radios he had bought from Wagner were a little ‘off color’ and that he knew Wagner had done ‘time.’ Upon the stand he testified that he did not know a Dave Wagner but had made up the name in order to satisfy the officers, that he had purchased most of the radios from various people, whom he did not name, and that a few were radios that had been repaired and not called for; also, that all of his purchases were for each and that he had no checking account. It was stipulated that defendant had sold many secondhand radios and held no city license for that business.

It is unnecessary to go into greater detail as to the admissions and contradictory statements made by defendant and which tended to prove his guilt. Stepzinski had approached him in the manner of a thief and had, in effect, declared himself to be one. Defendant received from him what he should have expected and no doubt did expect—stolen property. His guilty knowledge was proven by the testimony of Stepzinski and by his own failure to give a convincing explanation of the suspicious circumstances. The evidence was sufficient to meet the requirements of law in a prosecution for the offense of receiving stolen property. People v. Cox, 1931, 117 Cal.App. 254, 3 P.2d 581; People v. Juehling, 1935, 10 Cal.App.2d 527, 52 P.2d 520; People v. Jacobs, 1925, 73 Cal.App. 334, 238 P. 770.

We are of the opinion that defendant was properly convicted of three offenses. The crime of receiving stolen property consists of either buying or taking possession of the property of another with knowledge that it has been stolen. Penal Code, sec. 496. A single transaction may contain the elements of one or of several offenses. If two stolen articles were received, with knowledge that one had been stolen but with no guilty knowledge as to the other, there would be but one offense; guilty knowledge must exist as an independent element of each offense. If several articles were received at one time from one person, with knowledge that they had been stolen, but without knowledge that they had been stolen from different owners at different times, only one offense would have been committed. Such is the clear import of the holding in People v. Willard, 1891, 92 Cal. 482, 28 P. 585. Defendant contends that the case is authority for the proposition that where a person receives goods from another, upon a single occasion, but with knowledge that they have been taken from several persons, by separate thefts, only one offense is committed. In the Willard case the court was not considering the precise question which is before us, namely, whether several offenses are committed if the property received is known to have been stolen from several different owners. If the one receiving the property knows that part of it has been stolen from A and part from B, all of the elements of two distinct crimes are present. The receipt of the property under such circumstances takes on a multiple character, because of the guilty knowledge, for the property of one owner might be accepted and that of the other rejected. There was evidence, consisting in part of the admissions of defendant, that he and Stepzinski entered into an arrangement for Stepzinski to steal the radios and sell and deliver them to defendant. If this were true, defendant would have been an accomplice in each theft. People v. Lima, 1944, Cal., 154 P.2d 698. It would be illogical to say, under these circumstances, that he was guilty of but a single offense of buying or receiving stolen property. Vol. 2, Wharton's Criminal Law, 12th Ed., p. 1563, sec. 1256. A single act or continuous series of acts may constitute two separate offenses where the elements of each offense exist. People v. Case, 1926, 77 Cal.App. 477, 246 P. 1083; People v. Brannon, 1924, 70 Cal.App. 225, 233 P. 88; People v. Werner, 1938, 29 Cal.App.2d 126, 84 P.2d 168; People v. McIlvain, 1942, 55 Cal.App.2d 322, 130 P.2d 131.

There was sufficient evidence to prove knowledge that the radios which defendant received had been taken in separate thefts. He had been told by Stepzinski that they would be taken out of cars. When they were brought into defendant's shop they had pieces of wire attached which had been cut when they were removed from the cars. Defendant testified that he did not examine them for wires but the court could have believed that he could not have picked the instruments up and placed them behind the counter without seeing the wires. And the wires, he testified, would have caused him to suspect that the instruments had been stolen. The same evidence which proved that defendant knew he was dealing in stolen property proved that he knew it was the property of several owners, taken from their respective cars. Each theft was a crime separate from the others but there would have been three offenses of theft if the property of three owners had been taken at one time and from a single location. We think there is no reason in law, and certainly no suggestion of injustice or oppression, which would compel or even justify the merger of defendant's three offenses into one. He committed wrongs against three persons when he took possession of their stolen property; he should not be allowed to escape full responsibility for no better reason than that he operated upon a large scale.

During the cross-examination of Stepzinski an objection was sustained to the question: ‘In other words you expect something out of this, don't you?’ The ruling is assigned as error. The witness had been questioned fully along this line. He had testified on cross-examination that he had not told the officers what his testimony would be, that they had promised him nothing, and that he had not been led to believe that he would receive any leniency because of the testimony which he had given. The right of cross-examination was not unduly restricted.

The judgment as to each count and the order denying motion for new trial are affirmed.

SHINN, Justice.

DESMOND, P. J., and PARKER WOOD, J., concur.

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