People v. Kefry

• Decision Date: 16 December 1958
• Docket Number: Cr. 3412
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred KEFRY, Defendant and Appellant.

Page 848

332 P.2d 848

166 Cal.App.2d 179

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred KEFRY, Defendant and Appellant.

Cr. 3412.

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

Dec. 16, 1958.

Hearing Denied Feb. 11, 1959.

Gregory S. Stout, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., City and County of San Francisco, Walter H. Giubbini, Deputy Dist. Atty., San Francisco, for respondent.

BRAY, Justice.

Defendant Kefry, Robert Graham and Richard Hacker were convicted by a jury of five counts of felony, three of burglary (second degree), one of receiving stolen property, and one of conspiracy. Defendant Kefry was sentenced to the state prison, all terms to run concurrently. Defendant Kefry alone appeals from the judgment and the order denying new trial.

Questions Presented.

1. Sufficiency of evidence (a) conspiracy; (b) burglaries; (c) possession of stolen goods.

2. Alleged inconvictions.

3. Alleged error in admission of evidence.

4. Alleged error in an instruction.

5. Alleged misconduct of the district attorney.

Evidence.

The story commences about a week prior to October 4, 1956, when defendant, a regular customer of one Sharp who operated a Union service station, approached Sharp with an offer to sell him some spark plugs at 35 cents each. The prevailing price was 53 cents. Sharp declined. Defendant denied offering to sell spark plugs or quoting a price. He testified that what he told Sharp was 'that a man walked in with some tools and spark plugs. He wanted to sell them and I also told him I would go down and see the man at the station where I trade.' Defendant then stated that the man, who he claimed was a stranger to him, did not have the spark plugs when he came to defendant's saloon and talked to defendant. The man never came back to learn the result of defendant's visit to Sharp.

On October 4 Sharp's station was burglarized. Taken therefrom were boxes of spark plugs and an adding machine. ¹ Either on the night of October 9 or the morning of October 10 a small wooden office building located on the lot of the Auto Leasing Company, managed by Ned Nelson, was broken into. (Count II of the indictment.) Taken were a typewriter and an adding machine. Also taken from the lot was a '53 Ford. About the same time a Mobil service station operated by Oma Jennings was burglarized. (Count I.) Taken were spark plugs, an adding machine and an impact wrench. On the morning of the Nelson burglary, John Herold, manager of a motel adjacent to the Union Oil station operated by Harry Hillary, observed Hacker force the door to the lubrication room of the station. (Count III.) Herold called the police and watched Hacker enter and proceed to the station's office where he attempted to pry open the safe. He then carried several meters, a buffer, an electric drill and an electrical timing device from the building to the motel's parking area where he placed them between two automobiles. Graham stayed in the automobile during this procedure. (The automobile was the one stolen from the Nelson lot.) The police on arrival found Graham crouched down in the front seat, on which were two severed locks from the Jennings station. The automobile trunk contained the impact wrench, spark plugs and adding machine stolen from that station. Graham told the police that he was a hitch-hiker picked up by the driver of the car, that he did not know the driver's name, and that the driver had just stopped the automobile there and said that he would be back in a minute. Hacker was apprehended a short distance from the gas station. He was perspiring and breathing heavily. There were chalk marks on the palms of his hand and on his pants. There was a white fence nearby. He denied complicity, said he was walking and lived down the street but could give no address. He also denied knowing Graham and anything about the automobile. Probation Officer Jenkins testified that in 1954 both Hacker and Graham told him they had been acquainted with each other ever since their junior high school days.

On the morning of the Hillary burglary Inspector Casciani and Officer Masio started to watch Hacker's home. About 11:15 a. m. defendant drove up and backed his car in the driveway. Also in the car were Hacker's wife and two children. On alighting defendant opened the car trunk. He entered Hacker's garage and carried out an item which he placed in the trunk. Again entering the garage he returned with another item which he also placed in the trunk. Defendant and Mrs. Hacker then went into the house. About five minutes later defendant emerged carrying a cardboard carton which he placed on the car's front seat. He then entered the car. At this point the officers identified themselves. Inspector Casciani looked into the box and saw that it contained spark plugs. He then looked at defendant. Defendant then said "I have no use for that kind of stuff. That stuff will ruin me." When asked what he had placed in the trunk he said that he was just doing a favor for a friend who had called him up that morning stating that he was in jail for old traffic tickets and asked defendant to bring the caller's wife down to see an attorney; that the wife stated they were going to move and asked defendant to take the stuff and "* * * so I'm just going to hold it for a couple of days until I see what they want me to do with it." The box in the front of the car contained the spark plugs and adding machine stolen from the Sharp service station. In the trunk were the adding machine and typewriter stolen from the Nelson property.

That afternoon defendant told Inspector Casciani that he had known Hacker and Graham for two and five years respectively and that they were in his bar on the evening of October 9. (The Nelson burglary was either that night or the next morning.) He stated that on receiving a phone message from Hacker he brought Mrs. Hacker to the jail. After her visit with her husband she told defendant that Hacker was being held for old traffic tickets. Defendant then drove her home. Just before he was going to leave the house she asked him to take the property found in the car as a favor and to hold it until she and Hacker moved. Inspector Casciani then informed defendant they had observed him put some of the property into the car before defendant went into the house. Defendant then admitted that this was correct. On being asked as to the inconsistency in his statement defendant said 'I wouldn't be positive when she asked me to take the things or when we got them. I wouldn't be positive to that.' Defendant denied knowing that the articles were stolen. At the trial defendant testified that Mrs. Hacker had asked both before arriving at the house and again in the house that he hold the property.

Defendant testified that he knew Hacker for five years as a customer of his bar and that Mrs. Hacker made sandwiches for sale to defendant's customers. He also knew Graham as a customer at his bar for about two years. Both Graham and Hacker were in the bar that night between 9:30 and 10.

Sharp testified that several days prior to the burglary at his station defendant and Hacker had been in together to gas defendant's car. Defendant admitted this visit, explaining that he had gassed his car prior to going to the race track with Hacker and others for a day of racing.

1. Sufficiency of Evidence.

(a) Conspiracy.

In spite of defendant's contention to the contrary, there is ample evidence to prove that defendant conspired with the others to obtain and sell stolen property. A conspiracy exists where it is established that there was an unlawful agreement to commit a crime between two or more persons, accompanied by an overt act in furtherance of such agreement. People v. Buffum, 1953, 40 Cal.2d 709, 715, 256 P.2d 317; People v. Campbell, 132 Cal.App.2d 262, 267, 281 P.2d 912. In proving the agreement it is not necessary to show that the parties met and actually agreed to undertake an unlawful act or that they previously arranged a detailed plan. Generally a conspiracy can only be established by circumstantial evidence because the essence of a conspiracy--the unlawful design--can usually be proved only by the establishment of independent facts, bearing more or less closely upon the common design. People v. Steccone, 1950, 36 Cal.2d 234, 238, 233 P.2d 17. Thus, a conspiracy may be proved by indirect evidence and inferences justified by the circumstances. People v. Bennett, 1955, 132 Cal.App.2d 569, 576, 282 P.2d 590; People v. Califro, 1953, 120 Cal.App.2d 504, 512, 261 P.2d 332. 'If in their endeavors to achieve the same end, the defendants pursued a common purpose by their several, respective acts, each contributing his part, the jury is warranted in concluding that all were involved in a conspiracy to effect a common object.' People v. Fratianno, 1955, 132 Cal.App.2d 610, 625, 282 P.2d 1002, 1009.

Here there is evidence beyond mere association, which was admitted, to connect defendant with the crimes even before they were committed by Hacker and Graham. The connecting evidence is the offer to sell spark plugs to Sharp below the market price. This would support a reasonable inference either that defendant was looking for a place to dispose of possible stolen items or that he was attempting to discover whether Sharp had such objects on hand so that they might be taken subsequently. The fact that the prosecution dnd not establish the market value of used plugs would seem to be immaterial in view of the fact that defendant's explanation for the offer was that he was just acting as a middleman for a stranger in his bar. Of course, that explanation need not be believed by the trier of fact.

At the time of his arrest, defendant had in his possession stolen property from both Sharp and the Auto Leasing Company. While this possession could have been innocent,...