People v. Burness

SCHAUER, P. J.

Defendant, upon trial by jury, was found guilty of the crime of receiving stolen property. His motion for new trial was denied and from this ruling, as well as from the judgment pronounced on the verdict, he appeals. Three points are urged: (1) that the information does not state a public offense; (2) that defendant was convicted on the uncorroborated testimony of an accomplice; and (3) that the trial court erred, to the prejudice of the defendant, in admitting over objection evidence tending to show a separate offense. Neither of the first two points is tenable but the third one presents an error which requires a new trial.

Material Facts

For all of the evidence tending directly to establish the commission of the offense and defendant’s connection therewith the plaintiff relies on the testimony of admitted thieves. The witness Boyle testified that prior to his arrest (some months before defendant’s trial) he had been regularly engaged in stealing automobiles and disposing of the parts and accessories; that he had stolen a “few hundred;” that on the night of February 27, 1941, he stole a 1941 Chevrolet coupe (identified by stipulation as the property of one Melvin L. Williams). On the same night he removed from that car five green-painted wheels, together with their mounted U. S. Royal tires and tubes, and, by prearrangement with one Estes, placed such wheels and tires “in a garage in the 1700 block on Magnolia in the alley.” He stated that in or about the month of February, 1941, and on one or more other occasions he had accompanied Estes to defendant’s place of business, denominated the Broken Drum Wrecking Company, located on San Fernando Boulevard in Los Angeles County. While there, on the first occasion, he heard Estes ask defendant “how many tires he wanted the next time and whether he

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would want any generators or anything else and how soon he could use some more.” Defendant said he wanted some but the witness did not recall how many or what was ordered. Such witness further stated that on the occasion in February, 1941, he and Estes ‘‘delivered some tires and wheels.”

The witness Estes testified in substance that he had been engaged for about twenty months in either stealing automobiles or in receiving and disposing of the parts and accessories of stolen cars. He said that he had made “twelve to fifteen hundred” sales of his “merchandise” and of that number that thirty-five or forty had been transactions with the defendant. He stated that his first deal with defendant w.as in June or July, 1939, concerning which time, speaking of tires and wheels, he testified, “I told him what I had and he asked me how hot they were and I said ‘they are hot from two or three days back’ and he said ‘All right, bring them out and I will take a look at them. ’ ’ ’ From then on, he said,' until the witness’ arrest in March, 1941, he saw the defendant “every week or ten days” and on each occasion either sold or delivered merchandise to him or collected for it or discussed proposed deals. He testified specifically that on the morning of February 28, 1941, he took from the “garage in the 1700 block Magnolia Street” five Chevrolet wheels with tires and tubes, and sold and delivered them to the defendant; that the wheels were painted green and the tires were U. S. Royal Cords, size 16-600; that the defendant paid him $25 for the merchandise. He described the transaction as follows: “I got out and went in and seen him. He said ‘What have you got this time?’ And I said ‘Tires and wheels.’ ... He said ‘Bring them in’ and then he said ‘Put them in that tire shed right there. ’ . . . He says ‘I guess you want $5.00 each for these the same as yesterday?’ And I said ‘Yes, sir.’ ... He gave me $10.00 . . . said he would give me the rest of the money in about a week or ten days.”