People v. McKibben

GRIFFIN, J. Defendants W. E. McKibben and Addison B. Carter, partners in the Downey Rabbit and Poultry Company, together with defendants and appellants Walter Broekie, Frank Harms and Donovan Ritz, were indicted and charged in count one with theft of chickens from one Ernest Smith; in count two, with theft of turkeys from Frank Browning; in count three, with theft of turkeys from Jack Davis, all exceeding $50 in value; and in count four, with conspiracy to commit the crime of theft in carrying away the chickens of Smith, as charged in count one. Each defendant pleaded not guilty. At the conclusion of the People’s case, upon motion of the district attorney, the charges against defendant Carter were dismissed. A directed verdict of not guilty followed as to defendant McKibben. The remaining defendants and appellants herein were found guilty on counts one and four, and not guilty on the remaining counts. Motions for new trial were denied, and defendants were committed to state’s prison. Subsequently the order was vacated as to appellant Ritz and he was committed to the California Youth Authority.

On February 24, 1955, Smith, owner of a poultry ranch at Kingsburg, was approached by a feed salesman in reference to the sale of some chickens, and Smith agreed to the sale. That night a truck belonging to the poultry company above mentioned, arrived at the public scales in Kingsburg and Smith drove from his ranch, which was about 3 miles distant, and met it there, as per agreement. The supposedly empty truck was weighed. Smith preceded it in his car and the two truck drivers, one identified as appellant Broekie, drove to Smith’s ranch, loaded the truck with chickens and returned to the scales with Smith, who preceded him. The loaded truck was again weighed. The system agreed upon was to weigh the truck in, unloaded, and weigh it out again loaded and pay Smith the difference in weight, as representing the weight of the chickens, and the poultry company would then pay for the chickens at the rate of 29 cents per pound, the fair market value. The weight slip showed the truck weighed 17,600 pounds loaded and 10,530 pounds supposedly empty. Arrangements were made for another delivery, as a part of [481]that sale, on the night of February 27th, and Smith was to meet them at the scales about 7 p. m. On Smith’s return to his ranch on the night of February 24th, he saw a large rock (about 8 or 10 inches in diameter) in the road, which was foreign to that part of the valley and which was not there when he preceded the truck to the scales that evening. He then drove down the road slowly and saw additional rocks similar in character and weight, strewn alongside of the road. He called the officers and together they picked up three of the larger rocks. These parties, together with the officers of the Department of Weights and Measures, then laid a plan to observe the truck driver who was to arrive on February 27th for the remaining chickens for which they had previously bargained. That evening they observed a Chevrolet truck and a GMC truck parked near a café in Kingsburg. The occupants of the trucks entered the café. The officers examined the trucks and nothing unusual was found in respect to the Chevrolet but behind the seat of the GMC truck, in a space 18 inches wide and extending across the width of the truck were rocks piled up about even with the seat. This space was ordinarily occupied by a seat tank for gasoline. There were 12 or 14 such rocks measuring 6 to 12 inches in diameter, which were covered with a pair of overalls. Appellant Ritz came out of the café and asked one of the officers what was going on, and the officer remarked to Ritz that he had parked too near a fire plug. He was asked about the ownership of the truck and Ritz said he was not the driver nor the owner but the driver was in the café and would move it. Three men came out, got in the trucks and went to the scales without removing the rocks. Smith acted as weighmaster, weighed the respective trucks, and preceded them to his ranch. The Chevrolet followed immediately behind the Smith car. Officers were concealed along the road. As one truck went by one of the officers a big rock came out of the window and struck the ground near him. The forms of the two men were seen in the GMC truck and another rock was thrown from it out of the window at another, point on the road. Photographs were immediately taken of the rocks and the officers again took up their same positions. Smith and the trucks returned in the same formation to the scales. They were weighed and weight slips were given to Smith. The occupants of the truck started to leave but were detained by the officers. Appellant Ritz was, at that time, driving