Opinion
Cr. 972
11-4-1954
The PEOPLE of the State of California, Plaintiff and Respondent, v. William E. RAVEN, Defendant and Appellant.
J. Frederick Rosen, Los Angeles, and William W. Shaw, Riverside, for appellant. Edmund G. Brown, Atty. Gen., W. B. Thayer, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
William E. RAVEN, Defendant and Appellant.
Nov. 4, 1954.
Rehearing Denied Nov. 17, 1954.
Hearing Granted Dec. 3, 1954.
J. Frederick Rosen, Los Angeles, and William W. Shaw, Riverside, for appellant.
Edmund G. Brown, Atty. Gen., W. B. Thayer, Deputy Atty. Gen., for respondent.
GRIFFIN, Justice.
Defendant and appellant was charged with and convicted by a jury of the crime of violating section 496 of the Penal Code (receiving stolen property) in one count, i. e., that on September 22, 1953, he wilfully and unlawfully bought two 700X15 Jeep tires stolen from Cecil Head, knowing the same to have been stolen; and in the second count that on October 1, 1953, he likewise bought certain other described personal property in violation of said section. Defendant was placed on probation for five years. He was a used-merchandise dealer. Defendant and a one-armed automobile mechanic named Diggs were drinking together. The mechanic sold the items above described to defendant at about 14 per cent of their market value. They were stolen from the mechanic's employer, Cecil Head, by Diggs. According to the testimony of the mechanic Diggs these facts were communicated to defendant at the time of the purchase. Head discovered the loss of the articles upon the termination of Diggs's employment with him, and notified the police.
At the trial it was defendant's defense that he did not know, at the time he purchased the articles, that they were stolen. It appears from the evidence that Diggs had previously three times been convicted of felonies and had known defendant over a period of two years, had bought and sold certain items from him on other occasions; and that defendant had always obtained signed receipts for them at the time. Three of these receipts, showing Diggs's signature, were received in evidence.
Diggs testified that he and defendant were drinking and talked about some Jeep tires; that he went to Head's shop, obtained two new Jeep tires and tubes which were covered with dust that had accumulated thereon over a period of time, and returned to the defendant's store; that both men rolled the tires from Diggs's car into defendant's office; that he told defendant they were stolen but did not tell him from whom they were stolen; that defendant stated he could tell they were stolen because of the dust on them since it appeared to him that 'they have been buried in the desert'. He then testified that defendant was not interested in Jeep tires when he first mentioned them but when he told him he could have them for $10 or $15, defendant said to go and get them. As to the power tools he testified he and defendant were drinking in defendant's home and defendant told him of his financial embarrassment and that Diggs told defendant he could obtain some stolen power tools and that at defendant's request Diggs went to obtain them and secured them from his employer's shop, returned with them and defendant paid him $10; that Diggs asked the defendant for a receipt and defendant said he wondered 'if he thought he was nuts to give him a receipt for stolen property'. He testified he did not tell the defendant from whom or where these items were stolen but did tell him they were stolen and that before he could accept the money he would have to check with those who actually stole them to see if defendant's offered price was right. He said defendant told him he would take them to Los Angeles and dispose of them there. He then testified that he was apprehended by the officers when he was about to leave town and that he phoned defendant and told him he was being questioned about the missing tools, etc., and to keep them under cover; that defendant replied: 'Don't worry about it', and said that if he (Diggs) had to go to jail he would see that he would get cigarettes. Defendant admitted the phone call and said Diggs told him to get rid of everything because it was 'all hot'.
Defendant testified that he usually obtained a receipt from the vendors of such goods, made out in their own handwriting, so he would have a record of all articles purchased from them, but that this was not done on these two occasions because of his reluctance to write and because his wife, who usually prepared such receipts, was out of town at the time and because the vendor refused to execute one. He stated that he did not usually inquire concerning the ownership of articles purchased by him but that Diggs volunteered the information that some of the tools were left over from a prior garage business he had operated and that the tires were received by him in payment for work-he had done on a certain man's car.
An officer testified he learned from another source, 28 days after the items were stolen, that defendant had them, and that he went to his place of business and it was then when defendant turned the goods over to the police. According to an expert witness, the market value of the tools and tires amounted to $249.71 and defendant paid Diggs $37 for them.
It appears that defendant did turn over every item he purchased from Diggs, some of which were not identified as being stolen property. Defendant testified he had previously purchased items from Diggs, and when he purchased the items in question Diggs did not inform him they were stolen, and that they remained in his store, in plain sight and unconcealed at all times. He then testified that Diggs had never told him of Diggs's prior convictions.
Defendant, on appeal, now claims that the trial court erred in refusing to give his proferred instruction that the testimony of Diggs could not be believed unless it was corroborated by other good and sufficient evidence since, under the evidence, Diggs was an accomplice to the crime charged, citing section 1111, Penal Code. We see no merit to this argument. There is no substantial evidence that defendant aided Diggs in stealing these articles. In fact, the defendant's testimony dispels any such contention for he denied that he had knowledge that they were stolen. An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. The facts would not support such a finding as to defendant. People v. Yates, 71 Cal.App. 788, 236 P. 185; People v. Howell, 69 Cal.App. 239, 230 P. 991; In re Morton, 179 Cal. 510, 177 P. 453; 22 Cal.Jur. p. 562, sec. 8.
The court instructed the jury on the rule of reasonable doubt in the language of section 1096 of the Penal Code. Complaint is made because the court refused defendant's proffered instruction to the effect that any fact necessary to the defense only needs to be established sufficiently to create a reasonable doubt of defendant's guilt. The statutory definition sufficiently covered the rule. Sec. 1096a, Penal Code.
It is further contended that since the main question before the jury was as to defendant's knowledge of the fact that the goods were stolen, at the time he purchased them, the trial court prejudicially erred in the admission and rejection of certain evidence. On the question of knowledge the court gave instructions in the language of section 496, subdivisions 1 and 2 of the Penal Code, and further instructed it as follows: 'Whether the defendant knew that the goods were stolen is to be determined by all the facts of the case. Such knowledge may be inferred from the surrounding conditions and circumstances, as for instance, that the goods were acquired from a person of questionable character, or the manner in which he claims to have acquired such property.'
It is contended that since the jury was told that Diggs had been three times convicted of felonies it might reasonably be said that he was a person of questionable character, and that since defendant purchased the items from him an inference might arise that defendant knew the goods were stolen, when in fact the defendant did not know of such felony convictions. Some proferred evidence of defendants, bearing on the unlikelihood of defendant having knowledge of this fact, was allowed and some disallowed. Without setting it forth, suffice it to say that we have examined the entire transcript on the subject matter and find no prejudicial error.
After the people rested their case defendant's counsel concluded that he had not laid the proper foundation for the impeachment of the State's witness Diggs in relation to some alleged statement he claimed Diggs made to his wife, while in jail, to the effect that defendant did not know the items were stolen. The court refused counsel the right to further cross-examine the witness at that time because the people had rested, whereupon defendant called the witness as his own. An objection of the district attorney was sustained to questions bearing upon that subject upon the ground that a party may not impeach his own witness. No application was made to reopen the case for further cross-examination of the witness. The granting of such an order would be discretionary.
It does not appear that any prejudicial error resulted. Reed v. Clark, 47 Cal. 194, 202; People v. Oxnam, 170 Cal. 211, 149 P. 165; People v. Shaw, 111 Cal. 171, 43 P. 593.
Judgment and order denying a new trial affirmed.
BARNARD, P. J., concurs.