Felker v. State, 5815

Decision Date09 April 1973
Docket NumberNo. 5815,5815
PartiesRussell FELKER and Frank Engel, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Sam Robinson, Little Rock, Charles E. Davis, Springdale, for appellants.

Jim Guy Tucker, Atty. Gen., by Gene O'Daniel, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

This is a case of first impression in this state. Appellants, Russell Felker and Frank Engel, were convicted in the Washington County Circuit Court of receiving stolen property, such property consisting of musical tapes and a tape player. The jury fixed the punishment of each at eighteen years confinement in the Arkansas Department of Correction. From the judgment entered in accordance with the verdict, appellants bring this appeal. For reversal, three points are asserted, but since we find Point Three to be dispositive of the case, there is no need to discuss the first two points. Appellants' third point is that the evidence shows conclusively that no crime was committed by either defendant.

To understand the contention, it is necessary that we review the evidence. Gary Sidman, twenty-three years of age, testified that he broke into a Firebird automobile on the Wal-Mart parking lot in Springdale and took from the automobile a tape player and some tapes. He testified that this was his own idea, but he needed money and he knew he could sell the tapes at the Trade Winds Motel in Springdale to Frank Engel, further testifying that he had sold 'other stuff' to that appellant. Sidman then testified:

'Well, Frank told me that I could sell them this stuff on Saturday and this was the first of the week. Between the first of the week and Friday, I was arrested and when I told Sgt. Swearingen what I--you know, what my intentions were--anyway it worked around to that the highway patrolman was to go with me on Saturday. We went down Saturday morning, and Mr. Engel said he didn't have the cash to buy all the stuff.'

This testimony had reference to the fact that after Sidman was arrested, admitted the theft, and the property had been recovered by the police, arrangements were made by the police department for a state trooper, Larry Imboden, who was stationed at Lonoke, to go to Springdale and act in an 'undercover' capacity. Accordingly, Imboden went to the Springdale Police Department on the morning of December 12, 1970, met Sidman, and the two shortly before 2:00 P.M., went to the Trade Winds Motel, Imboden being in plain clothes. After drinking beer, and sitting around in the lounge for a while, they went into the kitchen area and met Engel. The officer then testified:

'We was to sell him some tape players 1 that we had in a sack in a vehicle outside. We priced them and told him that we had the tape players and that the price, which was agreed on prior, which was $15.00 a tape player, I believe, something like that, and he said he didn't have the money at the time. He said he'd offer me $10.00 as down payment on them and get the money later and I refused to take the $10.00 at the time because we didn't figure it was enough for us. He said if we would come back later--approximately three o'clock, he would have someone who would probably give a hundred dollars for the whole merchandise, so we left--came back around two-fifty. He told us to go to Room 126 in the Trade Winds and that the man there would buy the merchandise from us. We went to the room and knocked on the door. Mr. Felker came to the door. I told him that we had the stolen merchandise, stolen tape players, in the back of the car, and he told me to bring them inside and I did, and set them down by the mirror on the dresser. He pulled out a hundred dollar bill and gave it to me, and I, in turn, pulled my pistol on him and pulled my identification out at the same time, and I placed him under arrest, put him against the wall and searched him for weapons.'

The officer testified that both men were told that the property was stolen property and this testimony was corroborated by Sidman.

The purchase was admitted by appellants, Engel testifying that Sidman had been 'hanging around' the Trade Winds, stating that he (Sidman) was very much in need of money and that he owned a couple of tape players and some tapes that he would like to sell. Engel said that on the Saturday afternoon when Sidman and Imboden came to the Trade Winds, the two stated that the property had not been stolen and when Felker later came in, he (Engel) asked if the former would like to buy them and Felker replied, 'If you are sure they are not stolen.' Engel said that Felker said he would give $100.00 for them. Thereafter, Engel sent the two to Felker's room.

Felker testified that he had told Engel that if the equipment was the right price, not stolen, and in good shape, he would purchase same and Engel replied, 'Well, they tell me they are not stolen'; he went on to his room and later the telephone rang, answered by his wife, and she turned to Felker and said, 'Frank said to give the boy $100.00.' The purchase was then made.

Appellants argue that due to the fact that the property had been recovered by the police 2 before it was sold, such property had lost its character as stolen property, and they accordingly could not be guilty of the offense of which they were convicted. This argument must be sustained. The question has been passed upon in several jurisdictions, and the unanimous holding is that, under the circumstances we have set forth, one cannot be guilty of receiving stolen property. In fact, the Attorney General cites no cases to the contrary and our own research has produced none. One of the earliest cases that dealt with this subject was the 1906 New York case of People v. Jaffe, 185 N.Y. 497, 78 N.E. 169. Although the case deals with the actual offense of attempting to receive stolen property, a portion of the discussion deals with the substantive offense. In its discussion, the court said:

'In passing upon the question here presented for our determination, it is important to bear in mind precisely what it was that the defendant attempted to do. He simply made an effort to purchase certain specific pieces of cloth. He believed the cloth to be stolen property, but it was not such in fact. The purchase, therefore, if it had been completely effected, could not constitute the crime of receiving stolen property, knowing it to be stolen, since there could be no such thing as knowledge on the part of the defendant of a nonexistent fact, although there might be a belief on his part that the fact existed.'

In the 1935 case of Farzley v. State, 231 Ala. 60, 163 So. 394, 395, the Supreme Court of Alabama stated:

'But it is essential to the crime here charged that the goods received by defendant were stolen and retained that status until they were delivered to defendant. If they were stolen, they continued to be stolen goods until they were recovered by their owner or some one for him.'

There is a lucid discussion by the United States Court of Appeals (Third Circuit) of the subject in the 1958 case of United States of America v. Cawley, 3 Cir., 255 F.2d 338. There, Cawley was convicted of buying parcel post packages stolen from the United States mail, knowing that they were stolen, and of possession of the stolen packages. The conviction was appealed and the opinion sets out the facts upon which Cawley was convicted, and the holding of the court, as follows:

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6 cases
  • State v. Hageman, 206A82
    • United States
    • North Carolina Supreme Court
    • 3 d3 Novembro d3 1982
    ...Accord, United States v. Monasterski, 567 F.2d 677 (6th Cir.1977); United States v. Dove, 629 F.2d 325 (4th Cir.1980); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); Bandy v. State, 575 S.W.2d 278 (Tenn.1979); Booth v. State, 398 P.2d 863 (Okl.Cr.1964); State v. Vitale, 23 Ariz.App. ......
  • People v. Dabrowski
    • United States
    • United States Appellate Court of Illinois
    • 20 d5 Novembro d5 1987
    ...results in that property losing its status as stolen. (See United States v. Cawley (3d Cir.1958), 255 F.2d 338; Felker v. State (1973), 254 Ark. 185, 492 S.W.2d 442; State v. Niehuser (1975), 21 Or.App. 33, 533 P.2d 834; Bandy v. State (Tenn.1979), 575 S.W.2d 278.) In each of these cases, t......
  • Ex parte Walls
    • United States
    • Alabama Supreme Court
    • 14 d5 Novembro d5 1997
    ...despite their actual recovery by law enforcement officers.2 See State v. Vitale, 23 Ariz.App. 37, 530 P.2d 394 (1975); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); People v. Rojas, 55 Cal.2d 252, 358 P.2d 921, 10 Cal.Rptr. 465 (1961); People v. Dabrowski, 162 Ill.App.3d 684, 515 N.......
  • State v. Murphy, 16412
    • United States
    • Utah Supreme Court
    • 9 d2 Setembro d2 1980
    ...address it.3 This requirement is fundamental to the offense. See Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); State v. Niehuser, 21 Or.App. 33, 533 P.2d 834 (1975); see generally 66 Am.Jur.2d, Receiving Stolen Property, Sec. 7, p.......
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