People v. Arends, Cr. 5730

• Decision Date: 26 November 1957
• Docket Number: Cr. 5730
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles L. ARENDS and Andrew P. Stiller, Defendants, Charles L. Arends, Defendant and Appellant.

Page 532

318 P.2d 532

155 Cal.App.2d 496

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles L. ARENDS and Andrew P. Stiller, Defendants, Charles L. Arends, Defendant and Appellant.

Cr. 5730.

District Court of Appeal, Second District, Division 1, California.

Nov. 26, 1957.

Hearing Denied Jan. 23, 1958.

D. LaVelle Nickerson, Inglewood, and Ann Ruth Grant, Bell Gardens, by D. LaVelle Nickerson, Inglewood, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County containing seven counts, defendants were accused in each count of the crime of grand theft of money from California Rubber Products, Inc., a corporation. Defendants pleaded not guilty as to each count. Defendant Arends' motion to dismiss under Penal Code Section 1382 was denied, as was his motion for a severance of his trial from that of his codefendant. Trial by jury resulted in verdicts finding defendant Stiller not guilty on each count, and defendant Arends guilty on all counts. The latter's motion for a new trial was denied, as was his application for probation, and he was sentenced to State Prison on each count, the sentences to run concurrently. From the judgment of conviction, the order denying his motion for a new trial, and from the 'imposition of sentence', defendant Arends prosecutes this appeal.

With regard to the factual background surrounding this prosecution the record reveals that California Rubber Products, Inc. was a corporation engaged in the manufacture of rubber products from various raw materials, including crude rubber and other synthetics, but not a product called GNA Neoprene, a synthetic rubber substance manufactured by E. I. duPont de Nemours & Co. (hereinafter referred to as duPont Company). This latter product was purchased from purveyors thereof.

William E. Shawger was President and General Manager of California Rubber Products, Inc., in 1954 and 1955. Miss Viola Burger was Secretary and Treasurer of the corporation, worked in the office thereof and handled the purchase orders. Appellant Arends was the factory Superintendent of the rubber shop and in complete charge of the rubber manufacturing. Ordinarily, in handling the purchase orders Miss Burger would receive information from the shop superintendent (appellant) on a requisition sheet, that certain crude materials were needed. From the information on the requisition she would prepare a purchase order, each of which was numbered, and put the number of the purchase order on the requisition. Then she would telephone to the purveyors of the crude material and give them the purchase order number, send them the confirming order, and put a copy of the order on Mr. Shawger's desk. After the material had been picked up or shipped, along with a bill of lading, the purveyors would send a bill to California Rubber Products. The bills were checked with the bills of lading which had accompanied the materials, and when the amounts were verified, the bills would be put aside to be paid. At the time they were paid, Miss Burger would make out a check on a California Rubber Products form, and sign it. The checks, along with the bills for which they were payment, would be put on Mr. Shawger's desk for his signature. After he signed them, always without looking at the invoices, Miss Burger would send them to the appropriate purveyor. Mr. Shawger had no recollection of having seen a purchase order for GNA Neoprene go across his desk during the six years preceding February 27, 1956, and he used none during that period. There were times when the appellant would call Miss Burger and ask her for a purchase order number, saying that he had the supplier on the telephone and wanted to give him the order number. In those instances Miss Burger would give him a number, put aside the purchase order form carrying that number, and when the requisition came to her she would type up the purchaser order and mail a confirming order. She would not make out a pick-up slip for the California Rubber Products truck driver to get the material in those cases, as she usually did.

Mr. Shawger was acquainted with defendant Stiller, and saw him at California Rubber Products occasionally when he came to visit with the appellant. Mr. Shawger never gave Stiller permission to take any raw material or any products of the California Rubber Products for his own use, or to buy or receive any crude material from the suppliers to the California Rubber Products Company and have the materials charged to the California Rubber Products Company. Specifically, he did not give Stiller permission on or about December 15, 1954, January 19, 1955, February 21, 1955, March 15, 1955, April 6, 1955, May 27, 1955, or August 5, 1955, the dates charged in the information, or any time at all, to receive from the duPont Company 3,000 pounds of GNA Neoprene and charge it to the California Rubber Products Company. He never gave one Albus, hereinafter referred to, permission to go to any of his suppliers of material and receive from them any material and have that material charged to the California Rubber Products Company. Mr. Shawger did not on or about December 15, 1954, January 19, 1955, February 21, 1955, March 15, 1955, April 6, 1955, May 27, 1955 or August 5, 1955, give the appellant permission or authority to order, charge to California Rubber Products Company, or receive, 3,000 pounds of GNA Neoprene from duPont for his own personal use.

Illustrative of the methods used by appellant in the transactions upon which the charges contained in the seven counts were grounded is the following resume of the evidentiary features of Count I of the information. On December 15, 1954, Miss Burger received from the appellant a requisition calling for 3,000 pounds of 'GN.A NeoP'. It had the signature of the appellant in the space marked 'Approved', 'duPont' in the corner, and '7849' in the appellant's writing in the space for the 'P.O. No.'. Miss Burger made up a purchase order No. 7849, referred to on the requisition, dated it December 20, 1954, signed it, and put 'confirmed' on it, indicating that the order had been telephoned to duPont.

DuPont issued a bill of lading, which would accompany the delivery of the product which had been purchased from duPont addressed to California Rubber Products Company, on which appeared 'Customer Order No. 7849', the purchase order of California Rubber Products Company. An invoice was received by the California Rubber Products Company from duPont, and it included on it the notation that it was for 'Customer Order No. 7849', for Neoprene type GNA, for $1299.60. The amount of this invoice was included in a check to duPont from the California Rubber Products Company dated January 31, 1955.

Paul Albus, who worked for the Montebello Rubber Company, and worked sometimes for Custom Rubber Products, which was owned by Stiller and the appellant, was given a purchase order number by Stiller, who said that it covered 3,000 pounds of GNA billed to California, and was told by him to go to duPont, pick up the Neoprene, and deliver it not to California, but to Custom. Albus got a truck which was available and went to duPont, where he gave them the purchase order number which he had been given, and got the GNA Neoprene and a bill of lading. He then took it to Custom and unloaded it. It stayed there for a few days.

In December of 1954, Mr. Snow, secretary of the Fullerton Manufacturing Corporation, manufacturers of molded rubber products primarily for the oil fields, received a telephone call from defendant Stiller, who had been connected with that company, in which Stiller asked him if he was using Neoprene. Mr. Snow said that he was, and Stiller said that he had some on hand, and asked if Mr. Snow could take it off his hands. Mr. Snow told him that he could if it was fresh. Stiller told him to send the driver up and he would give him a sample bag. Mr. Snow did, and found the material to be good, so he bought it. The company had theretofore bought GNA Neoprene from duPont for 44 cents a pound, and defendant Stiller sold it for 40 cents a pound. One or two days after the conversation, Mr. Snow sent his truck driver, Roy Todd, along with a check for $1,230 made payable to Stiller, to pick up the GNA Neoprene. Todd went to Custom Rubber, gave the check to Albus, who had been told by Stiller that Fullerton Manufacturing would pick up the Neoprene and leave a check, and took the Neoprene back to the Fullerton Manufacturing Company. Albus gave the check to Stiller.

Markings on the check showed that it was endorsed with the name of A. P. Stiller and cashed on December 21st, by the same person at the Eastern-Sheila Branch of the Citizens National Bank. The records of the Hawthorne Branch of the Bank of America showed that on December 23, 1954, a deposit of $500 in fifty dollar bills was deposited in that bank to the account of C. L. Arends, appellant herein.

Except for dates and amounts of money involved, the foregoing may be regarded as a fair epitome of the factual situation prevailing at to Counts II, III, IV, V and VI.

Since the facts upon which Count VII was based led to the apprehension of both defendants, we shall here narrate them in detail. Mr. Jordan, an employee of duPont, and Mr. Shawger, president and General Manager of California Rubber Rpoducts met at a social gathering on July 19, 1955. Mr. Shawger mentioned that Miss Burger, his purchasing agent, was no longer with him because of irregularities that were found. Mr. Jordan asked Mr. Shawger what he was doing with all of the GNA Neoprene. Mr. Shawger told im that they didn't use any. Mr. Jordan then said that Mr. Shawger had used 18,000 pounds in the last six months. The next morning Mr. Shawger starged to check into it at California Rubber, and thereafter notified the District Attorney's office....