People v. Conover

• Decision Date: 22 June 1966
• Docket Number: Cr. 5299
• Citation: 243 Cal.App.2d 38,52 Cal.Rptr. 172
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Robert CONOVER, Defendant and Appellant.

Page 172

52 Cal.Rptr. 172

243 Cal.App.2d 38

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Robert CONOVER, Defendant and Appellant.

Cr. 5299.

District Court of Appeal, First District,

Division 1, California.

June 22, 1966.

Pelletreau, Gowen, Moses & Porlier, William P. Moses, San Pablo, on appeal only, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

A jury found defendant guilty of receiving stolen property (Pen.Code § 496). He appeals ¹ from the judgment of conviction.

In the early part of 1964 Gorman Rose, who was employed as a driver of a cement mixer, accidentally met defendant with whom he had first become acquainted seven to nine years before. They stopped to talk and in the course of the conversation the subject of 'chain saws' arose. Defendant told Rose that he 'frequently' had the opportunity to obtain such saws and asked him 'if I do (obtain them), would you be interested in some?' Rose replied that he would be interested because he wanted to cut down some trees in back of his house and also because one of his coworkers was looking for some. Hearing Rose's interest, defendant said that 'if I get hold of any, I'll give you a ring.' Rose then gave defendant his telephone number and the men parted.

About two weeks later defendant telephoned Rose and informed the latter that he had some used chain saws to sell and asked if Rose would be interested in buying them. Rose declined, stating that he was interested only in new saws.

On April 24, 1964 the place of business of Edwin G. Baird, a chain saw dealer in Amador County was burglarized. Taken in that burglary were six chain saws, a Mite-E-Lite generator, some chains and some cutter bars, along with the cash register and some cash. The wholesale value of the items taken was $1,761.61. The cutter bars were in cardboard containers which, when received by Baird from the supplier, had labels on them.

On April 25, 1964, a Saturday, the day after the burglary, Rose received a telephone call from defendant who told him that he had five chain saws and gave the latter the medel numbers. On the following Monday or Tuesday defendant telephoned Rose again, saying that he had another prospective purchaser and was interested in getting rid of the saws. Rose thereupon talked to LeBouef and Dougherty, contractors, who had a yard behind his place of employment and who he thought might be interested in buying the saws. On Wednesday evening defendant again called Rose, asking him if he was 'interested in the chain saws.' Rose replied that he was, 'if they are not hot.' Assured that they were not, Rose told defendant that 'LeBouef and Dougherty would like to purchase them.' Under the terms of the transaction each item (saws and generator) was $100, with Rose to meet defendant and pick up the goods at 5300 Garvin Street in Richmond on Thursday evening.

On the next day, Thursday, Rose drove to the last mentioned address which was occupied by Nancy Hagerty, defendant's fiancee and later his wife. Defendant arrived at about the same time. According to Rose's story defendant told him to come in, that the saws had not yet arrived but that the man delivering them should be on his way over.

While waiting, defendant and Rose were sitting in the living room when, at defendant's suggestion, they made a brief tour of the garage apparently looking at a mirror, and then returned into the house. About fifteen minutes later a green 1956 Mercury drove up. Rose started out of the house to accompany defendant to this car but was told by defendant to 'wait a minute,' that he wanted to talk to the men in the car. Rose remained in the house talking to defendant's fiancee for about five minutes when defendant came back in and informed Rose that 'your chain saws are around in the garage. Just back up and get them in your pickup.' Rose did as he was told.

Upon entering the garage Rose observed 'five or six chain saws, a generator and some chain bars,' none of which had been there on his prior brief visit to the garage. The cutter bars (except one) were in cardboard containers, each bearing a name plate type of label. Defendant remarked that he would 'like to take this name off because I wouldn't want the fellow to know where I get my merchandise.' They thus took a tire iron, the screwdriver-like end of which they imbedded into the cardboard and 'ripped the name plate off.' The goods were then loaded onto the back of Rose's truck. The agreed price of $100 per item remained fixed ² and arrangements were made for Rose to pay defendant the next afternoon (Friday). Rose then departed.

From 5300 Garvin Street, Rose drove to LeBouef's contracting yard, where he delivered to LeBouef five chain saws ³ and five cutter bars. That left Rose with one chain saw and the generator, both of which he took to his residence. LeBouef, meanwhile, put the saws in his warehouse and then 'called the manufacturer to find out if they were stolen or anything.' A man was sent over who determined that the saws and bars had been stolen from Sacramento. LeBouef then called Sergeant Baroni of the Richmond Police Department who, after arriving at LeBouef and Dougherty's yard and ascertaining that they were the stolen items, took possession of the saws.

In the afternoon of Friday, May 1, 1964, Richmond Police Officer Baroni and Sergeant Ritz, ⁴ interviewed Rose at his place of employment, informed him that he was in possession of stolen property and placed him under arrest. Rose was released the next day and was never prosecuted on any charge. On Friday evening defendant went to Rose's place of employment looking for him. He was told that Rose might be in the restaurant across the street. Madeline Mullins, the proprietress of the restaurant, testified that between 7 and 8 p.m. defendant came into the restaurant and asked for Rose.

Sergeant Ritz and Officer Franklin, having obtained Miss Hagerty's address during the course of their interview with Rose, thereafter obtained a warrant for the search of the Garvin Street premises. They were joined there by Richmond Police Officer Redding, an 'ID technician.' The search uncovered pieces of labels in a garbage can on the premises. These labels were identified by Mr. Baird as the identical type of label which was on the cutter bar containers when he first received them.

The case in defense presented substantially the same facts with one marked difference: according to the defense's theory of case it was Rose who attempted to Sell the merchandise to defendant. Defendant, taking the stand in his own behalf, admitted the initial accidental meeting and discussion with Rose about chain saws, admitted that at said time Rose told him that he, Rose, was desirous of Buying a chain saw and admitted that thereafter he, defendant, telephoned Rose and asked the latter if he wanted to buy a used chain saw. Defendant then testified that in April Rose telephoned defendant and 'asked me if I was still interested in chain saws and I said well, I am interested in motors * * *. He told me that he had access to some new ones. I said well, it really didn't matter to me whether they were new or used, that I just needed them for these hydrocarts and go-carts.' According to defendant, Rose stated he would like to meet defendant at which time he would show defendant the saws and discuss price. Arrangements were made to meet at Nancy Hagerty's house. When defendant arrived, one Howard Hundley, who was interested in buying defendant's automobile, was already there. Rose arrived at about the same time. After defendant and Hundley concluded their business, Rose, according to defendant, backed his truck into the garage and showed him some motors lying on the bed of the truck, offering all of them to defendant for $50 each. Hundley was in the garage during part of this conversation. Defendant told Rose he was not interested. At about this point, Rose stated that he did not want anyone to know from whom he was getting the motors because he was 'selling them below his price.' Rose asked defendant for 'a scraper or something' and then asked Hundley for a knife. Defendant testified that he then went into the house; that when he left Rose was tearing off some of the labels; that defendant did not remove any labels; that he never took or had possession of the motors at any time; that he told Rose he needed some cement whereupon the latter promised to bring him some; and that when Rose did not bring the cement the next day, defendant went to Rose's place of employment and then to the nearby restaurant looking for him.

Howard Hundley testified that he was present at Nancy Hagerty's house on the last mentioned occasion to buy defendant's automobile, that he saw Rose back his truck up to the garage and saw 'some new looking motors' in the truckbed, that Rose was trying to sell the motors to defendant and that Rose asked him 'for a pocket knife to take off some kind of labels.'

Nancy Conover, defendant's wife, formerly Nancy Hagerty, testified as to the arrival of defendant, Rose and Hundley; that defendant and Rose came into the house while Hundley remained outside; that defendant went outside again and she and Rose 'talked for a minute,' that Rose pulled his pick-up truck into the garage; and that the next day she 'saw a mess in the garage,' swept it up and put it in the garbage can.

Defendant raises no question as to the sufficiency of the evidence to support the judgment. His sole contention on appeal is that the prosecuting attorney committed prejudicial misconduct on a number of occasions. However the record shows, and defendant concedes, that defendant did not at any time make an assignment of misconduct or object to the alleged misconduct in any way and that the jury was not on any occasion admonished to disregard it.

Defendant now urges the following five...