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District Court of Appeal, Second District, Division 2, California.


Cr. 4714.

Decided: March 21, 1952

Lawrence William Steinberg, Beverly Hills, for appellant. Edmund G. Brown, Atty. Gen., Stanford D. Herlick, Deputy Atty. Gen., for respondent.

Defendant appeals from the judgment convicting him of receiving stolen property in violation of section 496bb of the Penal Code,1 and from the order denying his motion for a new trial. He challenges the judgment on the ground of the insufficiency of the evidence to support it.

The articles involved in this charge are a lady's handbag which had been stolen from Virginia Haralson, and a mink coat, a lady's handbag, and a watch which had been stolen from the North Hollywood home of Mr. and Mrs. Frost on the evening of November 23, 1950. On the day following the Frost robbery one Mel Furlong, whom appellant had known for some time in a business way, came to his apartment seeking to dispose of a fur coat which turned out to be the one stolen from the Frost home. Furlong had previously taken this coat to his wife, who was in the hospital, and offered it to her as a present. She had, however, declined it because she wanted a car. In an effort to dispose of the coat appellant contacted Joe Paladino, a bar and cafe owner, about the coat, after which he and Furlong went to the home of Paladino, between 8:00 and 9:00 o'clock in the evening. Appellant had known Paladino about two and a half years. After Mrs. Paladino had inspected and tried on the coat and indicated she would like to have it, her husband bought it for $1,500 cash. Furlong remained outside in his automobile. He died the next day. Mr. Frost had purchased the coat in August, 1949, for about $5,000 including taxes.

Appellant was living with a woman by the name of Pressler to whom he was not married. They had bungalow No. 6 at a motel near Arcadia. The officers found some of their luggage there containing wearing apparel. In one of the smaller suitcases which police released to Pressler they found women's clothing and the Haralson and Frost purses. Pressler testified she had bought these purses on the day after Thanksgiving, along with some others, from one Calvert who had occupied bungalow No. 7 in this motel. Appellant is not shown to have had any other connection with the purses.

The area around the Arcadia motal was searched and under some leaves beneath a bush they discovered a plastic bag containing numerous items of jewelry among which was the watch stolen from the Frost house. The bush was located behind a ledge near a wall about 35 to 40 feet from appellant's bungalow. It was about 150 feet from bungalow No. 7, which had been occupied by the Calverts. A search of appellant's luggage brought to light a plastic bag similar to the one found under the bush. Appellant denied any knowledge of the jewelry in this plastic container. Concerning the presence of the plastic bag in his possession he and Pressler gave the explanation that Calvert, who had many, had given them two in which to keep golf balls. In this connection the husband of the owner of the motel testified that the man who occupied bungalow No. 7 (Calvert) had offered to sell him a set of earrings and a brooch made of yellow gold and stones which he took out of a bag similar to the one produced in court.

The elements of the offense created by the Code are as follows:

1. That the property found in the possession of the defendant was acquired by acts constituting theft or extortion;

2. That the defendant received, concealed or withheld the property from the owners; and

3. That defendant knew the property was stolen. People v. Rossi, 15 Cal.App.2d 180, 181, 59 P.2d 206.

As to the fur coat the evidence is insufficient to sustain the conviction. Possession of stolen property is not of itself sufficient evidence to support an implied finding that the possessor knew it had been stolen. People v. Juehling, 10 Cal.App.2d 527, 531, 52 P.2d 520. There must be other circumstances that point to guilt. People v. McClain, 115 Cal.App. 512, 514, 1 P.2d 1023. We find none in this case. Appellant's temporary possession of the coat was explained. He was not a purchaser but was merely trying to help a business acquaintance dispose of a coat which his own wife had rejected because she preferred an automobile. Furlong is not shown to have been a person of bad reputation. The disposition of the coat to a business man appellant had known for some time is not a suspicious circumstance. Appellant does not appear to have profited by the transaction. It is true that the coat was sold at a substantial discount but it is not shown that appellant had any knowledge of or familiarity with the prices of furs or their quality, and since he was not purchasing the coat there was no reason for him to make inquiry concerning its value. The fact that Furlong remained outside in his car while appellant went in and displayed the coat to Mr. and Mrs. Paladino and made the sale, is not a circumstance necessarily pointing to guilt. It may well be that knowing the Paladinos as he did, appellant thought he alone could make the sale more readily. It is also pointed out that the transaction took place between 8:00 and 9:00 o'clock at night, according to the testimony of Paladino. This, of course, is not a late hour, particularly for one engaged in the bar and cafe business. In any event a previous appointment appears to have been made by telephone. Presumably it was at such a time as would meet the convenience of the Paladinos.

In order to sustain the conviction based on the circumstances involving the two ladies' purses it is necessary that the evidence disclose appellant had either actual or constructive possession of them. People v. Beck, 71 Cal.App.2d 637, 640, 163 P.2d 41. This it fails to do. The purses were found in his paramour's luggage. She claims to have purchased them less than a week prior to appellant's arrest. There is no evidence to show that appellant ever saw these purses or knew that she had them. This phase of the case is governed in principle by People v. Jolley, 35 Cal.App.2d 159, 94 P.2d 1011. In the Jolley case defendant was in the used tire business, principally regrooving smooth tires. He conducted a shop at a down town location, but he stored old tires in the garage at his home. He also used the garage for storing tools and household goods but did not use it for housing his automobile. Defendant's brother and a former employee took a couple of stolen cars there, removed the tires and replaced them with tires taken from the stock in the garage and left the tires removed from the stolen vehicles. Defendant knew nothing of these escapades and had not been inside his garage while the stolen tires were there. It was held the proof of possession was insufficient to sustain the judgment of receiving stolen property.

The circumstances surrounding the recovery of the stolen watch are also insufficient to show possession in appellant. Neither the watch nor the plastic sack containing it and other jewelry was ever shown to have been in his possession. The sole basis for attempting to connect appellant with the watch is the fact that it had been hidden not far from his apartment in a plastic sack similar to one he had in his possession when arrested. It must be remembered, however, that a similar plastic bag had been seen by the husband of the motel proprietor in Calvert's possession when he tried to sell him a set of earrings and a brooch, and that the bag containing the jewelry was also only a few feet from Calvert's living quarters. Further, a reasonable explanation was given of appellant's possession of a similar bag.

The judgment and order are reversed.


1.  The section was amended in 1951 and renumbered section 496, Penal Code.

FOX, Justice.

MOORE, P. J., and McCOMB, J., concur.