Felker v. State, 5815
Decision Date | 09 April 1973 |
Docket Number | No. 5815,5815 |
Parties | Russell FELKER and Frank Engel, Appellant, v. STATE of Arkansas, Appellee. |
Court | Arkansas 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.
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:
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:
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 the 1935 case of Farzley v. State, 231 Ala. 60, 163 So. 394, 395, the Supreme Court of Alabama stated:
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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