People v. Kot

• Decision Date: 01 June 1959
• Docket Number: Cr. 3510
• Citation: 171 Cal.App.2d 9,339 P.2d 899
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Henry KOT, Defendant and Appellant.

Page 899

339 P.2d 899

171 Cal.App.2d 9

PEOPLE of State of California, Plaintiff and Respondent, v. Henry KOT, Defendant and Appellant.

Cr. 3510.

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

June 1, 1959.

Edward L. Cragen, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Convicted of receiving stolen property (Pen.Code, § 496), defendant asserts in support of his appeal from the judgment and the order denying a new trial (1) insufficiency of the evidence and (2) error in the refusal of certain instructions requested by defendant.

(1) The claim of insufficiency of the evidence is predicated upon the asserted lack of evidence of the circumstances under which defendant obtained the stolen property; i. e., whether he obtained it by theft from the owner or from some other person after the theft had been accomplished. He cites three cases in support of this thesis.

In People v. Jacobs, 73 Cal.App. 334, 238 P. 770, (hearing by Supreme Court denied) the court was considering what inferences might be drawn from the fact that stolen property is found in the possession of a person immediately or soon after the property was stolen, and reviewed the case law of other states. It observed that in some states such facts would warrant an inference of guilt of larceny but not of receiving stolen goods; in some, that such possession when attended by suspicious circumstances will justify a conviction of receiving stolen property; and in others that such possession when not satisfactorily explained will support a conviction of receiving stolen goods.

The court then formulated and declared for California a rule that recent 'possession of the stolen property, with attending suspicious circumstances, is evidence of larceny, and not evidence upon the charge of stolen goods' unless 'there is evidence that the property charged to have been feloniously received was stolen by some person other than the individual charged with illicitly receiving it.' 73 Cal.App. at page 341, 238 P. at page 773. It found in defendant's evidence proof that he was not at the scene of the theft at the time of its occurrence and in evidence which pointed to a certain other person as the thief, support for an implied finding of the jury that the property was stolen by some other person than the defendant, and affirmed the judgment of conviction.

In People v. Bausell, 18 Cal.App.2d 15, 62 P.2d 774, the court approved and similarly applied the rule enunciated in the Jacobs case. Three dresses had been stolen from a certain department store. They had been shown to three women, prospective customers, at 2:30 p. m. Between that hour and 4 p. m. of the same day, when the dresses were found in defendant's possession upon a street near the store, the sales clerk who exhibited the dresses was continuously on duty. She did not see defendant in the department concerned at any time during that period. The court held this was 'some evidence that tends to prove that some person other than appellant stole the dresses' (18 Cal.App.2d at page 19, 62 P.2d at page 776), which satisfied the rule laid down in the Jacobs case.

People v. Foogert, 85 Cal.App.2d 290, 193 P.2d 14, involved a charge of unlawful concealment of an automobile (Pen.Code, § 496bb, now § 496). Defendant complained of an instruction which would have permitted the jury to find him guilty of the charge even if he were the thief. The court deemed it unnecessary to decide whether the rule of the Jacobs case applies to a concealment case. It found 'in statements by defendant to police officers that he purchased the motor from a Los Angeles dealer; that the car was his; that he bought it from a veteran, and [in] his statement to the owner of the garage where it was stored that the car belonged to his brother,' proof 'which more than satisfies the evidentiary requirement as stated in' the Jacobs case. 85 Cal.App.2d at page 300, 193 P.2d at page 20.

In our case also there is evidence that satisifies the requirement of the Jacobs case. A 1956 motorcycle belonging to Edwin Olson was stolen from him on November 8, 1956. On May 2, 1957, the engine which was attached to and a part of the Olson motorcycle at the time of the theft was found in the possession of defendant Kot. It had been installed in a 1950 motorcycle which he had bought in March of 1956. It had been substituted for the engine which was in that cycle when purchased by defendant. The number of the replaced engine had been stamped over the number of the stolen engine. This evidence would support an inference that defendant knew that the engine now in his motorcycle was stolen. 'Possession of stolen property, accompanied by suspicious circumstances [such as alteration of stolen property to prevent identification], will justify an inference that the property was received with knowledge that it had been stolen.' People v. Malouf, 135 Cal.App.2d 697, 706, 287 P.2d 834, 839, (hearing by Supreme Court denied), citing People v. Lopez, 126 Cal.App.2d 274, 278, 271 P.2d 874. This prima facie showing that the stolen engine was received with knowledge that it was stolen 'is all that is required as a foundation for the introduction in evidence of extrajudicial statements of defendant; and the order of proof is discretionary.' People v. Malouf, supra, 135 Cal.App.2d at page 706, 287 P.2d at page 839. Thus, by evidence independent of defendant's statements, just as in the Malouf case, the corpus delicti was established.

In his statements to the police officers defendant at first denied owning or driving the motorcycle and then admitted driving it. Later, he said the motorcycle was not stolen. He would not account for the altered engine number. He refused to state whether the engine now in the motorcycle was there when he purchased it. His declaration that the motorcycle was not stolen was some evidence that the engine in it was not stolen by him, thus making way for an inference that he 'received' the engine, did not himself steal it.

In addition, defendant failed to take the witness stand. 'It was within his power to deny or explain the evidence against him. His failure to deny or explain such evidence could be considered by the trial judge 'as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.' People v. Adamson, 27 Cal.2d 478, 488-489, 165 P.2d 3, 9; People v....