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District Court of Appeal, Third District, California.

PEOPLE of State of California, Plaintiff and Respondent, v. Reno ORLANDI and Emerick Sepic, Defendants and Appellants.

PEOPLE of State of California, Plaintiff and Respondent, v. Anthony SEPIC, Jr., Defendant and Appellant.*

Cr. 2992.

Decided: October 28, 1959

Mathews & Traverse, Eureka, for appellants Sepic. Falk & Falk, Eureka, for appellant Orlandi. The Attorney General, by Doris H. Maier and Raymond M. Momboisse, Deputy Attys. Gen., for respondent.

We have here three appeals from convictions of receiving stolen property. Reno Orlandi and Emerick Sepic, along with one Petty, were indicted by the grand jury of Humboldt County. Anthony Sepic, Jr., was informed against. The two cases were tried together. Petty turned State's evidence and the charge against him was dismissed.

In May of 1958, he Eureka Supermarket purchased 100 cases of liquor. Each of these cases when shipped had stenciled on its top the invoice number, which was also the shipping number. On June 6, 1958, two seventeen-year old boys entered the store after closing time and stole 12 or 13 cases of hard liquor of various brands. They placed the cases in a car they had parked outside the market and proceeded to deliver them to one Peeples. About one month later the boys again entered the market, using the same procedure and this time took 15 cases of liquor. Before taking any of the liquor the boys had made arrangements with Peeples to sell it to him. For the first cases they received a 1954 automobile engine worth about $250. The liquor was worth wholesale from $37 to $50 a case. For the last cases the boys were to have received $100, but actually did not receive anything. The wholesale value of the last group of cases was about $550. Shortly after receiving the first 12 or 13 cases, Peeples contacted Petty, who at that time was a salesman for a second-hand automobile concern partly owned by Anthony Sepic. Peeples offered to sell 10 or 12 cases of whiskey to Petty, but Petty did not want to buy. Peeples asked him if he knew anyone who might buy and Petty asked if the whiskey was ‘hot’. Peeples assured him it was not and asked Petty to inquire around and see if any among his acquaintances would buy. Petty talked to appellant Orlandi and to appellant Anthony Sepic, the latter being a licensed liquor dealer. He told them of Peeples' offer to sell liquor. Anthony Sepic asked him to ascertain the price. Petty contacted Peeples and a price ranging from $2.50 to $3.50 per fifth was set. Orlandi agreed to purchase the liquor and Peeples brought the liquor in his car to the used car lot where Orlandi conducted his business. Peeples left his car on the lot with the whiskey inside the trunk. Shortly after he left, Orlandi arrived in a panel delivery truck. He parked this truck beside Peeples' car. When the trunk of Peeples' car was opened, Anthony Sepic, Reno Orlandi and Petty were present. The liquor was not in the original cases, but was stacked loosely in the trunk of the car. All three men took part in transferring the whiskey from Peeples' car to Orlandi's truck. Orlandi did not have enough money with him to pay for the whiskey and Petty advanced $80 towards the total amount, which he later received back. Appellant Anthony Sepic also advanced some money. Petty took the money to Peeples and was given by Peeples a case of vodka. Petty contacted the police and informed them of the transfer that had been made and asked whether or not any whiskey had been stolen. Several days later the officers told him they had no record of any whiskey having been stolen and that as far as they knew the whiskey he had dealt with was not stolen. Shortly after July 4, 1958, Orlandi asked Petty if there was any more liquor available. Soon thereafter Peeples told Petty that he did have more whiskey available for sale and Petty told Peeples that Orlandi had inquired and was interested in purchasing more. Petty then told Orlandi that Peeples had more whiskey and the same arrangements were made for its transfer as had been used in the first transaction. This time there were between 13 and 15 cases involved. Peeples borrowed an old sedan from the used car lot, loaded it with the liquor and brought it back to the same place where he had left the first quantity of liquor. Orlandi came in his panel truck, and the liquor, which was in cases this time, was transferred to it. None of the cases had any identifying marks on them. Peeples was paid about $300 for this second lot. Orlandi paid Petty and Petty turned the money over to Peeples and received two cases of whiskey for his own use. After this second transaction Petty again contacted the police and told them about the transfer. Several days later Peeples again contacted Petty and told him that he had two more cases of whiskey that he wanted to get rid of in a hurry. Petty told Anthony Sepic of this and Sepic gave Petty $40 to make the purchase which was about one-half the wholesale price of the liquor. Petty took the money back to Peeples and gave him $30, keeping $10. This time when the trunk of Peeples' car, which was again used to deliver the liquor, had been opened, Petty observed that ‘Eureka Supermarket’ was stenciled on the two cases. He remarked ‘This whiskey is from the Eureka Supermarket.’ Peeples ripped the identification off the cases, then drove his car to a shed on the used car lot, and put off the two cases of whiskey at that point. About 30 to 45 minutes later, Anthony Sepic took this liquor in his automobile. Again Petty told the police about what had occurred. Up to this time appellant Emerick Sepic had not been known in the transactions so far as the record shows. But around October 9, 1958, while officers were searching for a mental patient who had escaped from a hospital, they entered the barn of Frances Sepic. She is the mother of Emerick Sepic and Emerick was living with her. In the barn the officers discovered two cases of whiskey concealed under a pile of hay. The identification marks had been removed from the cases. On the following day they returned to the Frances Sepic residence and talked to her. After leaving they parked their car in a position where they could observe the barn. They saw Emerick Sepic run from the back of the house to the barn and as they approached they heard the rattle of bottles. Emerick Sepic was discovered carrying a case containing whiskey and when asked what he had, said, ‘Here, take it’. He then told the officers that there was more whiskey ‘over by the stalls.’ He told confusing stories to the officers as to how he had obtained the liquor, claiming at one time that it had been given to him by a friend and another that he had just found the liquor behind his place of business.

All appellants contend that the evidence is insufficient to sustain the several convictions because of lack of proof that the whiskey received by them had been stolen. There is no merit to this contention as to any of the appellants. One of the juvenile thieves, in testifying, described the procedure followed by them in taking the liquor from the market and delivering it to Peeples, who was not engaged in the sale of alcoholic beverages and had neither a wholesale nor retail liquor license. The quantities taken from the market were large and the quantities sold by Peeples were large and altogether the three sales practically accounted for the amount of liquor taken from the market. There is, of course, no question as to the fact that the boys stole whiskey from the market. The evidence on this is direct and undisputed. There is also the manner in which the liquor was handled by Peeples and by the appellants Anthony Sepic and Reno Orlandi, which strongly indicates that the latter two suspected the liquor was not legally owned by Peeples. The elaborate regulations, both federal and state, by which the storage, transportation and sale of whiskey are required to be handled from the manufacturers to the retail seller and into the hands of the retail consumer where package sales are involved all furnish a reasonable explanation as to why Peeples, Orlandi and Anthony Sepic handled the liquor in the secretive way in which they did. There was also the fact that on the first delivery the bottles had been taken from the cases and were delivered loose in the trunk of Peeples' car. Also there was the fact that the last large lot, although delivered in cases, was in cases bearing no identification. There is also the disparity in the price of the liquor between the price paid to Peeples and the market price which exceeded that price even at wholesale, and finally there was the third transaction in which Peeples, in the presence of Petty, ripped the identification marks off the two cases which bore the marks of the market. Coming now to appellant Emerick Sepic and the whiskey which he was surreptitiously removing from the barn after the officers came and questioned his mother, we find he had possession temporarily, at least, and his attempt to take the liquor out of the barn, his relationship to Anthony, his apparent knowledge that the whiskey was being illegally and secretly held, and his knowledge of the place of its concealment, all indicate strongly that the liquor he attempted to carry away was stolen and that he knew it and had taken part in its receipt, possession and concealment. There is nothing to the claim that the status of the liquor was not that of stolen liquor.

As to all defendants the trial court gave the following instruction: ‘If you find that the witness Petty was an accomplice of the defendants Reno Orlandi and Anthony Sepic Jr. then you will return a verdict of not guilty concerning these two defendants. If you find that the witness Petty was an accomplice of the defendant Emerick Sepic, then you will consider whether the testimony of the witness Petty has been corroborated in accordance with my instructions. If however you find that the witness Petty was not an accomplice as to any party to this action, then the rule that his testimony be corroborated does not apply and you will judge the case from all of the evidence and the instructions which I give you.’ This instruction was erroneous as to appellant Emerick Sepic. There is no evidence at all from which it could be found that Petty was his accomplice. The only evidence against him was with relation to the two cases of whiskey found under the hay in his mother's barn on the farm where Emerick lived. Petty's testimony in no way involved Emerick. For the court to tell the jury that the evidence was such they could find that Petty was an accomplice of Emerick could only tend to confuse them and in addition it suggested to them that the case against Emerick was far stronger than it was in fact. Emerick was not shown in any way to have had anything to do with the purchase of the liquor by his brother and all that he did may have been done only because he knew where his brother had hidden the liquor and was acting in his brother's defense without ever having in any sense been a receiver.

As to the other two appellants, Orlandi and Anthony Sepic, they argue that Petty was an accomplice as a matter of law and, therefore, it was error to tell the jury that it was for them to decide whether he was or was not an accomplice. We cannot agree with this contention. From the facts we have recited we think it was a question of fact for the jury to resolve as to whether or not Petty was an accomplice. We think the court properly told the jury that if they should find he was an accomplice of Orlandi and Anthony then they must return a verdict of not guilty as to them since as a matter of law there was no corroboration of the testimony of Petty as to their guilty conduct.

The court instructed the jury as follows: ‘It is settled that the thief and the one knowingly receiving stolen property from him are guilty of distinct and separate substantive offenses and are not accomplices of each other.’ The court further instructed the jury as follows:

‘One, who under the direction of an officer of the law or of any other person, or upon his own initiative, and without criminal intent, feigns complicity in the commission of a crime merely for the purpose of detecting the perpetrator thereof, with a view to prosecution for the offense, is not an accomplice in law, and his testimony need not be corroborated. * * *’

‘The law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement; and where a crime is committed as a consequence of such entrapment, no conviction may be had of the person so entrapped as his acts do not constitute a crime.’

‘If the intent to commit the crime did not originate with the defendant and he was not carrying out his own criminal purpose, but the crime was suggested by another person acting with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed.’

There was no evidence in the record which justified the court in telling the jury that they could find Petty was not an accomplice because he was feigning complicity. The fact that he reported sales to an officer would not support a finding of feigned complicity. The instruction wrongfully gave to the jury an alternative in their consideration of the status of Petty as an accomplice. Had the instruction on feigned complicity not been given, the jury might well have found from the evidence that Petty was an accomplice and in that event they would have obeyed the trial court's admonition that in such case they must find a verdict of not guilty as to Orlandi and Anthony. But the jury were by the feigned complicity instruction given an opportunity to avoid a finding of complicity upon the theory that what Petty did could be explained away because he was merely feigning complicity and therefore that his testimony did not have to be corroborated.

The judgments are reversed as to all appellants.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.