People v. Watso

DRAPER, P. J. A jury found appellant and four others guilty of conspiracy (Pen. Code, § 182) to commit petty theft (Pen Code, §§ 484, 488). As to each, the crime was determined to be a misdemeanor. All were admitted to probation, Watso for three years on condition that he serve 60 days in county jail and make restitution of $798. Only he appeals.

The essence of the charged conspiracy was the return to the San Francisco Examiner, for credit, of unsold papers for which credit was not allowable. Appellant and four other defendants were “street men” or “wholesalers”—drivers who delivered papers to individual vendors and stocked sidewalk racks from which passers-by bought papers on a self-serve basis. They were charged at the rate of 7% cents per copy for such papers. Credit in like amounts was allowed for unsold copies returned. Defendant Hartman was an “ over-the-road ” driver who delivered papers to distribution points as distant as Sacramento. Papers delivered by him could not be returned for credit, since the rate charged the out of town distributors was lower to accommodate for losses and unsold copies. Except in unusual circumstances, such drivers were not permitted to carry papers in their trucks returning to San Francisco. Hartman, nonetheless, did return such papers, transferring them from the company truck to his own automobile before leaving the truck at the company garage. A number of such copies were marked with fluorescent crayon, and were later returned by the other defendants, including appellant, who received credit of 7% cents per copy therefor. The publisher, having already credited the distant distributors for these copies by reducing the rate charged them, thus was mulcted of the 7% cents per copy credited to defendant street men. There was evidence that gifts of money and liquor were made to Hartman by the other defendants.

The marked copies returned by appellant established that he sought and received credits to which he was not entitled, and doubtless account for his failure to urge insufficiency of the evidence.

[775]The prosecution, however, offered some evidence of a rule requiring that returns by street men be made within three days to be entitled to credit. On cross-examination, it was shown that this rule had not been published to the driver employees generally. Defendants’ knowledge of the rule could be inferred, however, from evidence that old issues returned by them were sandwiched inside bundles of returned papers. The “rule” was used largely as the basis for testimony of an accountant estimating the total loss to the newspaper. The charge, however, was conspiracy to commit petty theft, and the total taken is of little significance.