State v. Salle, 30830.

• Decision Date: 21 July 1949
• Docket Number: 30830.
• Citation: 34 Wn.2d 183,208 P.2d 872
• Court: Washington Supreme Court
• Parties: STATE v. SALLE.

208 P.2d 872

34 Wn.2d 183

STATE v. SALLE.

No. 30830.

Supreme Court of Washington

July 21, 1949

Department 1

James J. Salle was convicted of grand larceny and he appeals.

Appeal from Superior Court, King County; William J. Wilkins, judge.

Warner, Pierce and Peden, Herbert Danz, Seattle for appellant.

Charles O. Carroll, Robert B. Allison, Stuart G. Oles, Seattle, for respondent.

STEINERT Justice.

Defendant was charged, in each of three counts of an amended information, with the crime of grand larceny. The jury Before which he was tried returned verdicts of guilty upon the first and third counts, and a verdict of not guilty upon the second count. From the judgment of conviction and sentence upon the two verdicts of guilty defendant appealed.

All of the evidence in the case was adduced by the state, and the facts established thereby, as the jury coule have found them are substantially as we shall here relate them.

First, with respect to count one: On or about December 31, 1947, a comptometer of the value of $525 was stolen from the office of a manufacturer's sales and service agency in the city of Seattle. The loss was promptly reported to the local police department. However, the identity of the thief has never been definitely determined. About the middle of January, 1948, one Frank Fry, who was then in possession of the machine, sold it to the appellant herein, James J. Salle, for the sum of $25. Appellant knew at the time he bought it that it was stolen property. Shortly thereafter, appellant sold the comptometer for the sum of $20 to one Albert R. Merrill, who conducted a wholesale and retail surplus business in Seattle. About a week later, Merrill delivered the machine, for resale, to one Scaggs, a gasoline station attendant, and Scaggs in turn disposed of it to one Dittebrand, a real estate salesman, in whose possession the machine was found by Seattle detectives on or about February 9, 1948.

Next, with respect to count two: Sometime prior to September 10, 1947, a .22 automatic Winchester rifle, valued at $57.50 was stolen from a hardware store in Seattle. The theft was immediately reported to the police, but the thief has never been apprehended. About that same time, however, an individual known as Lefty McKee, having come into possession of the rifle, sold it to appellant for the sum of $30. Appellant retained the gun in his possession, keeping it in a closet in his home, where it was found by the detectives in February, 1948.

Next, with respect to count three: On or about October 27, 1947, an electric calculating machine was stolen from the office of a tank and welding concern in Seattle. The machine had been purchased in 1945 at a price of $378.53. The theft was at once reported to the police department. Although the identity of the thief was never fully determined by the authorities, appellant, by his own admission, had reason to believe that the machine was stolen property at the time he bought it from one Gowers, sometime after January 1, 1948, paying $25 therefor. About a week later, appellant sold, or offered to sell, the calculating machine to one Holmes for the sum of $40. Holmes took charge of the contrivance and kept it in the basement of his home until the early part of February, 1948, at which time he turned it over to the police, who had called to inquire about it.

On the evening of February 9, 1948, two Seattle detectives, who had been investigating the theft of the comptometer and who had found the machine that same day in the possession of Dittebrand, called at the home of appellant in Seattle and placed him under arrest. Appellant at once admitted that he had bought the comptometer knowing it had been stolen.

The detectives then instituted a search of the premises. Appellant accompanied them in the exploration, telling them that a number of things in the house were stolen property. As the detectives gathered together various articles located about the house, appellant indicated those that were 'hot' and those that were 'not hot.' The hot articles were loaded into a prowler car and, with appellant, were taken to police headquarters. These hot articles included a portable typewriter, a camera, a magnifying glass, an electric drill, four air sanders, an electric iron, a desk pen and several pen and pencil sets, an envelope of old gold, and one bottle of pure gold cylinders.

In addition to these articles, designated by appellant as 'hot,' the detectives also took along a .22 Winchester rifle, which is the subject of count two herein. Although appellant had not pointed out the rifle as 'hot,' he told several stories concerning it, and for that reason the detectives included it with the other articles. A list of these hot articles was subsequently read to the jury by one of the detectives as part of his testimony.

On February 11, 1948, after appellant had been arrested and while in custody, and after the police had recovered and were in possession of all the articles described in the three counts of the amended information, appellant made three separate statements with reference to the comptometer, the Winchester rifle, and the calculating machine, respectively. These statements were taken down serially in writing and were signed by appellant. In the statement with reference to the comptometer, appellant said that he knew at the time he purchased it that it was a stolen article. In the statement with reference to the rifle, he merely identified the gun, saying that he had purchased it from Lefty McKee for $30. In the statement with reference to the calculating machine, he said that he had bought it from Joe Gowers and George Turpin for $25 and later had sold it to a person by the name of Chuck for $40.

On February 14, 1948, appellant was again questioned by the police with reference to the three counts of the amended information, and separate wire recordings were made of the questions addressed to, and the answers given by, him pertaining to each of the articles alleged to have been stolen. These wire recordings were 'played' Before the jury, reproducing the questions and answers. In the recording with reference to the comptometer, appellant admitted positively that he knew, at the time he purchased the machine, that it was stolen property. In the recording with reference to the rifle, he declared just as positively that he did not know, at the time he purchased it, that it had been stolen, but thought it was 'on the up and up.' In the recording with reference to the calculating machine, he stated that at the time he purchased it he had reason to believe that it had been acquired through theft.

The evidence hereinBefore narrated was supplied in its entirety through witnesses produced by the state. Appellant did not testify, nor did he offer any evidence whatever. The jury found him guilty of the charges respecting the comptometer and the calculating machine, but found him not guilty of the charge with reference to the Winchester rifle.

The statute under which this action was prosecuted is Rem.Rev.Stat. § 2601, which, so far as is material here, reads:

'Every person who, with intent to deprive or defraud the owner thereof----

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'(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this act----

'Steals such property and shall be guilty of larceny.'

Appellant lists his assignments of error under four headings. The first is that the trial court erred in denying appellant's motion for a new trial. This assignment of error involves three points, each point being discussed separately.

Appellant's first alleged point of complaint is that the trial court erroneously, and over appellant's objection, permitted one of the police officers, in his testimony, to relate the conversation which took place between the officer and appellant at the time and place of the latter's arrest. In that conversation, as related by the officer, appellant designated various articles in the house as being 'hot' or 'not hot'; these articles have been enumerated or referred to above. Appellant's contention is that such testimony constituted evidence of collateral crimes, and he relies upon the general rule that when a defendant is charged with a particular crime, evidence of a collateral crime is inadmissible.

That rule, however, has its well-defined and well-recognized exceptions, as where the element of motive, intent, identity, guilty knowledge, or a systematic scheme or plan is involved. In such instances, evidence of similar transactions may, in proper cases, be received to establish a constituent element of the crime charged, even though it may at the same time tend to prove the commission of other criminal offenses.

In 45 Am.Jur. 406, Receiving Stolen Property, § 19, the general rule and the exceptions thereto are stated, as follows 'In prosecutions for receiving stolen goods, as in criminal cases generally, the general rule is that evidence of the commission of offenses other than that charged is irrelevant, incompetent, and inadmissible. There are, however, certain well-established exceptions to this rule, recognized in order that all relevant facts and circumstances tending to establish any of the constituent elements of the crime charged may be made to appear. By virtue of such exceptions, evidence of other similar transactions, even though tending to show guilt of other crimes, is admissible in proper cases for the purpose of proving the identity of the accused as the guilty person, the guilty knowledge or intent of the...