People v. Smith

SPENCE, J.

Defendant was charged in five counts with receiving stolen property, consisting of a gun and five radios. The cause was tried by the court sitting without a jury. The uncontradicted evidence showed that the three radios referred to respectively in counts 2, 4 and 5 had been stolen at various times by one Stepzinski from the automobiles of the respective owners named in said counts, and that these three radios, together with a fourth radio, had been received by defendant from Stepzinski in one transaction at defendant’s radio shop on November 10, 1943. The trial court found defendant guilty on counts 2, 4 and 5, and not guilty on counts 1 and 3. Three separate "judgments were entered. In the first judg

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ment, relating to count 2, defendant was sentenced to six months in the county jail. In the second judgment, relating to count 4, defendant was sentenced to six months in the county jail, which sentence was ordered to run consecutively with the sentence relating to count 2. In the third judgment; relating to count 5, defendant was sentenced to six months in the county jail, which sentence was ordered to run consecutively with the sentence relating to count 2 and concurrently with the sentence relating to count 4. Defendant appeals from the judgments of conviction.

Defendant contends that the evidence was insufficient to sustain his conviction. He stresses the fact that there was no evidence of “buying

and

receiving” stolen property, as alleged in the information, as it was not shown that he had paid anything to Stepzinski. It was not necessary, however, to show that any payment had been made as section 496 of the Penal Code reads in the alternative and the offense therein defined is committed when a person either “buys

or

receives any personal property, knowing the same to have been stolen. ” (Italics ours.) We therefore pass to defendant’s main argument under this heading, which is that there was no evidence to show that defendant received the property from Stepzinski “with guilty knowledge.”

There was direct evidence showing such guilty knowledge in the testimony of Stepzinski who testified for the prosecution. The evidence showed that defendant was in the business of repairing and selling car radios, although it was conceded that he had no license permitting him to engage in such sales. He had known Stepzinski for about two years. Stepzinski testified that about a week before November 10, 1943, he called at defendant’s shop and proposed that he bring defendant some radios; that upon inquiring of defendant “if he needed any radios,” defendant answered, “Yes”; that he told defendant that he could get some—that he “would take them out of cars”—and defendant answered, “Bring them around. ’ ’