People v. Eddington

• Citation: 201 Cal.App.2d 574,20 Cal.Rptr. 122
• Decision Date: 19 March 1962
• Docket Number: Cr. 7870
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gerald Lee EDDINGTON, Defendant and Appellant.

Page 122

20 Cal.Rptr. 122

201 Cal.App.2d 574

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gerald Lee EDDINGTON, Defendant and Appellant.

Cr. 7870.

District Court of Appeal, Second District, Division 2, California.

March 19, 1962.

John L. Carr, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Carlos F. Borja, Jr., Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of violating section 504a of the Penal Code. ¹ He has appealed.

The information charged that on or about January 10, 1961, defendant willfully and fraudulently removed, concealed and disposed of a Hi-Fidelity radio, phonograph and cabinet which was in defendant's possession under a written contract of purchase which had not been fulfilled; that defendant had concealed and disposed of said Hi-Fidelity set with the intent to injure and defraud the House of Sight and Sound and the California Bank.

In October 1960, defendant bought a Hi-Fidelity set from the House of Sight and Sound for $600.00. He made a $70.00 down payment with a Bankamericard and financed the balance through the California Bank. Salesman Holmes prepared invoice No. 3347 and a draft for $70.00 against the Bankamericard and a conditional sales contract with the California Bank. Defendant gave instructions to deliver the set to his office at 8701 Sunland Boulevard, Apartment A, and not to deliver it to his home because the set was to be a surprise gift to his wife on their anniversary which was October 18. The set was delivered to defendant's office as per his instructions by an employee of the seller, named Wayman. Defendant told Wayman that the set would not remain at his office but would later be moved to his home.

Theodore M. Patterson, lending officer for the California Bank (Van Nuys branch) testified that no payment had been made by defendant on the conditional sales contract up to that time (April 28, 1961), even though the defendant had been contacted and demand for payment had been made upon him; that the bank therefore looked to the House of Sight and Sound to make good on the contract. In December 1960, the House of Sight and Sound sent their employee, Wayman, to locate the set. He discovered that defendant had moved out of the office to which the set had been delivered. Wayman attempted to locate the Hi-Fi at defendant's residence but was unable to find it there. On January 10, 1961, Wayman and Stanford K. Peabody, a vice president of the seller, contacted defendant at his home. Defendant told them, 'I am not going to pay for it' (the set); 'I gave it to a friend.' When asked how the Hi-Fi could be found, defendant replied, 'That's up to you. You'll have to just find it yourself.' Peabody testified that defendant had not been given permission to retain the set and that it had not been returned to the store.

Robert E. Ambrose, assistant cashier for the Bank of America at the Bankamericard Center in Pasadena, testified that no payment had ever been made by defendant on the $70.00 credit card charge.

Defendant admitted that he had bought the set as described in the documents that were in evidence for $600.00; that he took possession when it was delivered to his office in Sun Valley; that he did not pay the Bank of America charge of $70.00; that the first monthly payment was due on November 15, 1960; that on that date he moved from his office in Sun Valley to an office at 10526 Burbank Boulevard; that he did not make any payments to the seller nor did he make any arrangement for an extension of time with the California Bank; and that he did not tell the seller where the set was. When defendant was asked by the trial court where the set was stored, he replied that it was 'in a shed on a lot' that he owned in Sunland; '* * * There is no address. It's just a vacant half-acre lot that we own. It's on Clybourne Street.' Defendant told the arresting officer, Riegel, that it was none of his business where the set was located and that it was up to the House of Sight and Sound to find it. In response to the inquiry, did he intend to pay for the set, defendant stated that he would pay for it 'when he got around to it.' Defendant asked the investigating officer, Guldner, if he was a repossessor for the seller. When asked whether he had anything to say regarding the charges made against him, defendant replied, 'I don't believe that that's any of your business.' Officer Guldner testified that there was no such address as 10526 Burbank Boulevard, the location to which defendant claimed to have moved his office on November 15.

Defendant took the stand in his own defense. He said that the reason he could not pay for the set was that the corporation in which he had an interest, known as Leco Equipment Rentals, Inc., went bankrupt when it did not get paid for the last job it did. However, upon cross-examination, defendant stated that he had not taken any action to collect for this last job and that the corporation had not filed bankruptcy proceedings. Defendant testified that he told Wayman and Peabody at the meeting of January 10, 1961 that the reason he could not pay for the set was because he did not have a job or the money to make the payments; and that they threatened to turn him over to the sheriff or marshal. This testimony was corroborated by a workman named Strunk who overheard the conversation.

Defendant questions the sufficiency of the evidence to find him guilty of theft by embezzlement. In sum, he argues that his acts were merely a frustration of repossession by the conditional seller rather than a concealment with intent to defraud.

The word 'conceal' is defined by Webster's New International Dictionary, 2d edition: 'To hide or withdraw from observation; to cover or keep from sight; to prevent the discovery of.' This definition was quoted with approval in People v. One 1940 Oldsmobile Club Coupe, 80 Cal.App.2d 372, 376, 181 P.2d 950. People v. McGinnis, 55 Cal.App.2d 931, 936, 132 P.2d 30, is in accord. In Mitchell v. Locurto, 79 Cal.App.2d 507 p. 514, 179 P.2d 848, p. 851, the court stated that: 'The word 'conceal' pertains to affirmative action likely to prevent or intended to prevent knowledge of a fact [citations]. It has reference to some advantage to the concealing party or a disadvantage to some interested party from whom the fact is withheld.'

The evidence here shows that defendant admitted removing the Hi-Fi set from his office to another place on the very day that the...