State v. Savan

• Decision Date: 09 October 1934
• Citation: 36 P.2d 594,148 Or. 423
• Parties: STATE v. SAVAN.
• Court: Oregon Supreme Court

36 P.2d 594

148 Or. 423

STATE v. SAVAN.

Supreme Court of Oregon

October 9, 1934

Department 2.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Edward Savan was convicted of receiving stolen property, and he appeals.

Affirmed.

I. G. Ankelis, of Portland (Frank J. Lonergan and C W. Robison, both of Portland, on the brief), for appellant.

Lotus L. Langley, Dist. Atty., and Charles Cohn, Deputy Dist Atty., both of Portland, for the State.

BAILEY Justice.

On January 18, 1934, the defendants Edward Savan and Oscar Sherman were jointly indicted by the grand jury of Multnomah county for the crime of receiving stolen property. The indictment recites that said defendants on December 16, 1933 in Multnomah county then and there being, did then and there unlawfully and feloniously, "buy, receive, have and conceal certain personal property, to-wit 26 suits of men's clothing, all being the personal property of Clarence Wickenden and Eric Wickenden, copartners doing business under the firm name and style of Wickenden's *** and which said property had been lately before unlawfully and feloniously taken, stolen and carried away by certain evil-disposed persons, they, the said Oscar Sherman and Edward Savan and each of them then and there well knowing and having good reason to believe the said property to have been stolen." Separate trials were had by the defendants. A verdict of guilty as charged was returned against Edward Savan, and from the judgment entered thereon this appeal is prosecuted.

Six assignments of error are urged, four of which have to do with the court's refusal to direct a verdict for the defendant. One assignment predicates error on the court's receiving the verdict of the jury, on the ground that two boxes which had not been received in evidence were taken from the courtroom into the jury room and remained there during the jury's deliberation as to the innocence or guilt of the defendant. The remaining assignment of error is based on the refusal of the court to give requested instructions and its action in giving other instructions.

During November 5 or 6, 1933, Wickenden's, a men's clothing store at Salinas, Cal., was broken into and entrance made through a skylight, and 115 men's suits were removed therefrom. On November 8, about noon, the 26 suits described in the indictment, which were shown to be a part of the lot taken from that store, together with other suits, were shipped by the defendant Savan under the name of Ed Harris, through the agency of Hild's Transfer & Storage Company of San Francisco, by McCormick Steamship Company, consigned to Ed Harris, Portland, Or.

At that time, according to defendant Savan's testimony, he was in San Francisco, where he had arrived the previous night. Upon his arrival there on the evening of November 7, he attended a party and met for the first time a man by the name of Harry Daze and another man by the name of John Elmon or Elander. According to his story, he stayed with them during that night and the following night. They lived, he said, in some hotel, but he did not know the name of it or the street where it was located. He claims that he bought from these two chance acquaintances, a few hours after meeting them, 74 suits including the 26 suits above mentioned, and 6 overcoats, at an average price of $8 each.

He used the name Ed Harris, he said, because he had lived in San Francisco between 1910 and 1914 and was known there by that name. When he returned to Portland in 1914, he explained, he found that his family name of Savransky had been changed to Savan, and he was thereafter known by this latter name. The only people he met in San Francisco who knew him were Fred Smith, who owned and operated the Blackstone Hotel in that city, and Smith's wife. He had known Mr. Smith for about thirty years, and part of that time Smith lived in Portland. After leaving San Francisco in 1914 the defendant Savan had visited that city only twice prior to his last venture, once in 1921 and another time about two years prior to November, 1933.

Two boxes containing the 74 suits and 6 overcoats so purchased by Savan arrived in Portland on November 20 and were taken by a transfer driver the same day to the Multnomah Hotel and there received by Savan. They were kept there for two days in a sample room which was registered in the name of Max Harris of Cleveland, Ohio. While the goods were there some fifty to seventy-five people visited the room for the purpose of buying suits and overcoats. About two days after they had arrived at the hotel, 53 of the suits were packed in one of the boxes, and this box, together with the other one, then empty, was taken to a storage warehouse by the transfer driver who had originally delivered them to the hotel.

After they had been in storage more than two weeks, the same transfer man received a call from Savan to take the box containing the suits from storage to a room in the Premier apartments in Portland occupied by Florence Maple and her brother, Joe Stefani. Before the delivery of the suits, Florence Maple was notified by Savan that they would be sent there, and negotiations were had which resulted in the purchase of the suits by Florence Maple for the sum of $350, although Savan at first demanded $7.50 for each suit, or a total of $397.50. All but the 26 suits involved herein were disposed of by Florence Maple before the defendant was apprehended.

The defendant Savan had for about four years prior to the date of the alleged crime been engaged in the bail bond business, and prior to that for some fifteen years, in the jewelry business. He had never been engaged in the clothing business prior to this time. The two men who, he says, sold the suits and overcoats to him were in business as jobbers and buyers of anything.

During the trial of the case there were brought into the courtroom, in connection with the clothing, two boxes, one of which had the following names marked thereon: Acme Transfer Company, Los Angeles; Bush & Lane Piano House, which, according to the evidence, was an establishment in Oakland; and Hild's Transfer & Storage Company, San Francisco. This box was one in which some of the suits were shipped from San Francisco to Portland. It was identified as such by an employee of the Hunt Transfer Company of Portland, by the transfer man who delivered it to the Multnomah hotel, and in a general way by the porter and a maid at that hotel, by Florence Maple and Joe Stefani, and by the two police officers who took charge of the box along with the clothing. There was no objection raised at the trial about the identification of this box.

The other box did not bear any marks, or at least the record fails to mention any on it.

These two boxes were inadvertently taken with the clothing into the jury room. When the jury returned its verdict and before the announcement thereof, counsel for the defendant objected to the receipt of the verdict, on the ground that the boxes were in the jury room without having been received in evidence. There is nothing in the record which tends to show that there was any marking on the boxes which would in any way affect the jury in arriving at the correct verdict. The defendant, as already stated, had admitted, or had not denied, that the box labeled was one which he used in shipping the clothing from San Francisco to Portland. He admitted also that Hild's Transfer & Storage Company of San Francisco had forwarded the merchandise for him. Inasmuch as these two boxes had been in the courtroom for a considerable length of time in plain view of the jury, had been identified by different witnesses, and contained nothing which could possibly have affected the jury in arriving at its verdict, the trial court did not err in receiving and filing the verdict of the jury over the objection of counsel for the defendant. People v. Glassberg, 326 Ill. 379, 158 N.E. 103; People v. Hower, 151 Cal. 638, 91 P. 507; State v. Whalen, 98 Iowa 662, 68 N.W. 554.

In the case of State v. Baker, 23 Or. 441, 32 P. 161, relied upon by the defendant, the prosecuting attorney was permitted in his closing argument, over the objection of the defendant, to read an affidavit for a continuance and to comment thereon, and the jury was allowed to take this affidavit to the jury room. The court held that this was reversible error. The facts in that case, as may be plainly seen, are entirely different from those in the case at bar.

The defendant assigned as ground for his motion for a directed verdict that the state had not proved any one of the material allegations of the indictment. In this respect it is contended by defendant that the state failed to prove that the clothing mentioned in the indictment was the property of the co-partnership composed of Clarence Wickenden and Eric Wickenden. The evidence in this connection is undisputed that these 26 suits of men's clothing were owned by Clarence Wickenden and his brother Eric Wickenden and were taken from their store at Salinas, Cal., by some one who broke into and entered that store; that both of these brothers were in charge of the store and paid the expenses of its operation that no one else had any interest in that business; and that Clarence Wickenden was "a member of the firm." Whether or not this evidence was sufficient to prove that the suits were owned by a partnership composed of Clarence Wickenden and Eric Wickenden it is not here necessary to decide. Section 13-710, Oregon Code 1930, provides as follows: "When a crime involves the commission of or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not...