People v. Scaggs

• Decision Date: 20 August 1957
• Docket Number: Cr. 3289
• Citation: 153 Cal.App.2d 339,314 P.2d 793
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Pleas SCAGGS, Defendant and Appellant.

Page 793

314 P.2d 793

153 Cal.App.2d 339

The PEOPLE of the State of California, Plaintiff and Respondent, v. Pleas SCAGGS, Defendant and Appellant.

Cr. 3289.

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

Aug. 20, 1957.

Hearing Denied Oct. 16, 1957.

Howard F. McKissick, Jr., San Francisco, Springer & McKissick, Reno, Nev., for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

By indictment Pleas Scaggs and Emil Jones were charged with receipt of property stolen from Daniel Levin in violation of section 496 of the Penal Code. The two were tried together. The jury acquitted Jones, but found Scaggs guilty as charged. Scaggs' motions for a new trial and for probation were denied. ¹ From the judgment of conviction, and from the order denying his motion for a new trial, Scaggs appeals. The main contention of appellant is that the evidence, as a matter of law, is insufficient, it being contended that the prosecution's chief witness--George Randolph, the confessed thief--was completely discredited and so impeached that his testimony must be disregarded. It is also urged that Randolph was not competent to testify; that the prosecutor was guilty of prejudicial misconduct; that certain prejudicial evidence was erroneously admitted, and that certain instructions should have been given by the trial court.

The stolen property here involved was a 'box' or 'package' containing over 1200 diamonds, costing, at wholesale, about $24,000, and belonging to Daniel Levin, a wholesale dealer in diamonds. The confessed thief was George Randolph, a jeweler and business acquaintance of Levin. Emil Jones, the codefendant, was a part-time chauffeur for Randolph. Scaggs, who owned and operated a hotel in San Francisco, was a friend of Jones and Randolph, and was known to Levin.

Levin testified that he had known and dealt professionally with Randolph since 1948, and that Randolph called at his office in the Phelan Building about once a week. On Saturday, October 1, 1955, shortly after 2 p. m., Randolph visited him in his office. Levin was working on some diamonds and continued to do so while talking to Randolph. At this time there was a package of diamonds in the open safe and another package on the desk. ² Several times during the afternoon Levin left Randolph alone in the office, and around 3:30 p. m. Randolph left the office for about twenty-five minutes. About 4:30 p. m. Levin decided to depart. Randolph was still present. Levin then discovered that a package of diamonds was missing. He and Randolph searched the office, then locked it, and went down to Randolph's automobile, then parked near the front of the building. Jones was in the driver's seat. Levin looked into the car and opened the glove compartment, but the diamonds were not there. Levin stated that Randolph told Jones that Levin was 'missing' a 'package of diamonds,' and that he, Randolph, was going back to Levin's office, and that Jones was to wait. Levin and Randolph then went back to Levin's office, and the police were called.

Officer Wilson, later joined by two other officers, responded to the call. Wilson accompanied Randolph to his car. Wilson asked Jones how long he had been there, and Jones told him for two or three hours, that he had driven Randolph to the Phelan Building at 2 p. m., then drove around until he found a parking space, and had never left the area after that. Shortly thereafter Wilson and one of the other two officers made a thorough search of Randolph's car, but no gems were found.

George Randolph was the next important witness called by the prosecution. He testified that he had known Levin for about 20 years and Scaggs for about six, and had introduced both Jones and Scaggs to Levin. He admitted that on the afternoon of October 1, 1955, he 'took' a box of diamonds from Levin's desk without Levin's consent, and then took the box down to Jones, and told him to take the box to his hotel. He testified that he thought he told Jones that jewelry was in the box, and was quite clear that he told Jones that the contents were stolen.

After the police had searched Randolph and his car, Randolph and Jones had dinner together, and Randolph dropped Jones off at Scaggs' hotel where Jones lived, and then drove home to Millbrae. The next day, October 2, 1955, Randolph got the package of gems from Jones, and then drove back to Millbrae, and sorted them.

Randolph testified to an event that he said occurred on October 5th or 6th, but which, if it did occur, probably must have occurred later. ³ He said that on this occasion Jones and Scaggs arrived at his Millbrae residence. Jones was very excited and did most of the talking. He said to Randolph 'Now, my friend, you got diamonds here. * * * Now, I want $8,000 for them. * * * I want $8,000.' Randolph replied that he didn't have $8,000, and that he didn't think the diamonds were worth that much. Jones then picked up a loaded revolver belonging to Randolph that was lying on the table, removed the cartridges and pointed it at Randolph. Scaggs took the gun away from Jones and told him not to point it at Randolph but 'he sided in with the conversation of Mr. Jones,' and told Randolph they wanted $8,000; that '$8,000 isn't much. The newspapers said they were worth $35,000.' During the conversation Randolph told Scaggs that he 'got,' that is, 'took them' from Levin. Jones and Scaggs then left, taking the diamonds and the gun with them.

Between the Millbrae incident and October 17, 1955, Randolph spent several days in the hospital, and also saw Scaggs twice at the latter's hotel. On at least one of these occasions they discussed the value of the diamonds, Randolph stating that they 'haven't got such value,' and Scaggs stating: 'Yes they have. In the papers it was marked $35,000.' On October 17, 1955, Scaggs and Randolph flew to Seattle. Scaggs was still in possession of the diamonds. In Seattle they visited three diamond merchants to whom Randolph tried unsuccessfully to sell some of the stones. Randolph, in Scaggs' presence, told one of these dealers that Scaggs was his 'driver,' and that the two had just arrived from New York. After being unsuccessful in selling the gems, Scaggs, in his own name, pawned one of the diamonds to get plane fare back to San Francisco.

On October 20, 1955, Randolph again entered the hospital. He telephoned Scaggs twice in reference to the diamonds, telling him to bring the diamonds to the hospital because he had a buyer. On the 21st Scaggs visited Randolph in the hospital three separate times. He did not have the diamonds with him on the first visit, but had some of them on his second visit. Randolph objected that all the diamonds had not been returned, but Scaggs said that was all he had received, and added that he had been unable to sell them. Later that same day Scaggs returned for a third visit. This time Jones was present. Jones, too, denied knowing that any of the stones were missing from the package that Scaggs had returned. Later Randolph turned the gems thus recovered over to his attorney, who turned them over to the police. Ultimately, about $13,000 out of the $24,000 worth of diamonds stolen were recovered.

Two sons of Randolph also testified to some of the events at the hospital on October 21st. They were only present in their father's room during Scaggs' third visit. They did testify that after Scaggs left the second time there were diamonds in the room, which the attorney removed, and that their father, during the third visit, stated to all that Scaggs and Jones were the ones 'who had the diamonds.' Scaggs admitted that he had returned a package to Randolph, but said that the latter had given it to him for safe keeping, and that he did not know what the package contained.

We next pick up the story with the testimony of John Johnson, who, in October of 1955, was a jewelry polisher. Johnson had known Scaggs for about 10 years. He testified that, on October 8, 1955, in response to a call from Scaggs, he visited Scaggs at the latter's hotel and that Scaggs told him that 'a merchant seaman had left something with him. He wanted me to look at it.' Scaggs then went out and returned with Jones who had a vial of diamonds. Scaggs asked the value of the diamonds. Johnson replied that before the stones could be valued they would have to be sorted. Scaggs asked Johnson if he would perform this service for a fee. Johnson agreed to do so and returned the next day (October 9th) and sorted the gems. Johnson asked for his pay and Scaggs told him that 'I'd have to wait until he and his friend made the deal, else I could take a stone. I told him I'd take a stone,' and did so. Then Scaggs wanted to know if Johnson could get the stones weighed. Johnson said that he would ask his foreman, Steve Lokario. The next day (October 10th) he told Scaggs that Lokario would weigh 5 or 6 stones and Scaggs could then estimate the weight of the remainder. Lokario took 5 or 6 diamonds with him and Lokario weighed them and Johnson then returned the stones to Scaggs. The latter expressed his appreciation by offering Johnson and Lokario some of the diamonds 'at a good price.' Johnson did not have the funds to take advantage of the offer, but Lokario was interested. Johnson then selected 12 or 15 'baguettes,' totalling about two carats, and delivered them to Lokario who paid Scaggs $150 for them. This was October the 18th. Scaggs then again asked Johnson if Lokario could get the stones weighed and, upon Johnson asking Lokario, the latter agreed to take some of the stones out of town and get them weighed over the week end. This was a Wednesday. Johnson took about 90 stones to Lokario for this purpose.

On Saturday, October 22nd, Scaggs telephoned Johnson, and told him not to come to see Scaggs as had previously been agreed. Scaggs said: 'Don't come, don't call,' that he would...