State v. Stacey

• Court: Oregon Supreme Court
• Writing for the Court: BAILEY, Justice.
• Citation: State v. Stacey, 153 Or. 449, 56 P.2d 1152 (Or. 1936)
• Decision Date: 28 April 1936
• Parties: STATE v. STACEY.

56 P.2d 1152

153 Or. 449

STATE v. STACEY.

Supreme Court of Oregon

April 28, 1936

Department No. 2.

Appeal from Circuit Court, Multnomah County; Arlie G. Walker, Judge.

William Stacey was convicted of receiving stolen property, and he appeals.

Reversed and remanded.

C. W. Robison and Leland B. Shaw, both of Portland for appellant.

Maurice Tarshis and Joe P. Price, Deputy Dist. Attys., both of Portland (James R. Bain, Dist. Atty., of Portland, on the brief), for the State.

BAILEY Justice.

The defendant, William Stacey, and one Louis LaPove were on March 1, 1935, jointly indicted of the crime of receiving stolen property, charged to have been committed on January 24 of that year, the charging part of the indictment being that said Stacey and LaPove did on that date in Multnomah county unlawfully and feloniously "buy, receive, have and conceal certain personal property, to-wit: two ladies' coats, all being the personal property of R. M. Gray." Prior to the trial of the defendant, Stacey, LaPove pleaded guilty and was used as a witness on behalf of the state. From a judgment of conviction, the defendant has appealed.

Early in the morning of October 2, 1934, the store of R. M. Gray in Portland was broken into and some twenty-six women's coats valued at over $700 were stolen. One of these, gray in color, was a coat which had been sold by Mr. Gray for $50 to one of his customers some fourteen months before the theft and at the time of the theft was in the store, where it had been relined and was awaiting delivery to the owner. When the coat could not be returned to the owner, Mr Gray settled with her by paying $20, in addition to bearing the charge of $7.50 for relining the coat and another charge of 65 cents for cleaning it.

The other coat referred to in the indictment and stolen from the Gray store was a model used for the purpose of procuring orders for similar coats. It had been in the store for some time but was of unpopular color and Mr. Gray had taken orders on it for similar coats in different colors. Coats ordered from this model sold for $25. At the time of the theft, the model had been placed on sale, marked at $15.

The defendant, Stacey, operated a general grocery and meat market at the corner of Mississippi avenue and Fremont street in Portland. In one end of the building where the store was conducted there was a garage approximately twenty feet wide and forty feet long, in which were stored three or four automobiles and trucks. The doors of the garage were flush with the sidewalk and were kept open most of the day.

Louis LaPove operated a filling station across the street from the Stacey store. On the same lot with the filling station was a one room building in which LaPove and his wife made their home. Both LaPove and his wife were well acquainted with the defendant and had known him for about a year and a half. They purchased their provisions at the defendant's store and he in turn bought gasoline at their filling station.

During the early part of November, 1934, the defendant came to the filling station and inquired of LaPove whether he would be interested in purchasing a coat for Mrs. LaPove, stating that he had some coats in his garage. At the suggestion of her husband, Mrs. LaPove went to the garage where she found some eight or ten women's coats lying on a box. Shortly after she arrived there the defendant appeared, and was advised by Mrs. LaPove that she would like two of the coats, one blue-gray in color and the other gray. She left without taking any of the coats with her, and shortly thereafter the defendant appeared at the filling station with the gray coat chosen by Mrs. LaPove, which he turned over to her husband upon the understanding that defendant was to be paid $7 for it. The defendant thereupon sold the other coat to LaPove and it was delivered the next day, when LaPove paid to defendant $12, the price of the two coats. These were the coats mentioned in the indictment.

Each of the above coats while in possession of R. M. Gray had borne a silk label in the back, below the collar, in which the name "R. M. Gray" was woven. These labels had been removed prior to the time when the coats were sold to LaPove.

On the same day as the robbery at the Gray store, the clothing store of M. & H. H. Sichel in Portland was broken into and about $700 worth of men's clothing taken. One of the garments stolen was a man's overcoat retailing at $37.50, which prior to the theft had borne two labels, one the N R A emblem and the other the name of the clothiers. This coat, with the labels then removed, about three or four weeks after the sale of the women's coats to Mrs. LaPove, was sold by the defendant to LaPove for $10, $5 in cash and $5 in trade.

After the LaPoves bought these coats, Mrs. LaPove wore the heavier of the two coats she had selected, and LaPove wore the overcoat.

On or about January 23, 1935, the defendant came to the filling station and said to LaPove, "There is a search warrant out for you," and, "You have got to get rid of the clothes." A short time later LaPove went to his dwelling and hid the man's overcoat under the mattress of his bed. On the following day a search was made of LaPove's premises and most of the clothing of LaPove and his wife was taken to the police station, including the two women's coats, which were hanging in the clothes closet with the doors open, in plain view, and the overcoat, which was found where hidden by LaPove.

LaPove and his wife, together with Stacey, were arrested, but after some questioning Mrs. LaPove was discharged and all the clothing, except the three articles above mentioned, was returned to her and her husband.

After Mrs. LaPove returned home from the police station, Stacey came to her and asked what she had told the police about the case. She answered, "I told him everything belongs to me." A day or two later Stacey called on Louis LaPove and said to him: "Well, I have seen your statement which you signed at the police station; you are in pretty bad; I tell you what I will do. *** You know, I have got a lot of money; I will fight the case; I will deny everything; whatever you say I will deny, so if I lose this case I will take it to the supreme court; if you want to go to jail, I will put a man in your place at the service station and I will pay your wife so much a week." To this LaPove answered, "No, I don't think I should do that; I think I am still innocent because you sold me those coats."

Later LaPove appeared before the grand jury, and when Stacey heard of this he asked him: "How come you went before the grand jury? Why didn't you tell me? Who made you go?" When advised by LaPove that the latter had appeared voluntarily, Stacey remarked, "Well, whatever you told them wouldn't hurt me because I will just deny everything what you said."

Stacey told the officer who arrested him that he would talk if some deal would be made with him. The officer further testified: "The deal he didn't mention; he said he would like to receive some offer from me, referring to leniency, if he would tell me what he knew."

Mr. Gray testified that the model coat would probably be offered for sale by one peddling it for $10, or even at 50 per cent. of the price which had been marked on it. He also testified that he placed the value of the customer's coat which had been relined at $28.50, which included the cost of repairing and cleaning and the $20 that he paid to the customer when he could not return the coat to her; but that if it were sold as a secondhand garment it would have "a very small retail value," possibly as little as $5.

The man's overcoat, according to the testimony, was of heavy material, made for colder weather than that of Oregon, and would be of limited demand here, except perhaps by elderly customers who might require additional warmth.

At the trial of defendant no evidence was introduced showing who had broken into either store or stolen any of the coats, or as to how or when Stacey came into possession of the coats. Nor does the evidence show that he had the man's overcoat in his possession at or before the time when he sold the women's coats. Stacey denied ever having had possession of any of these three garments, and further denied all the alleged conversations between himself, the LaPoves, and the arresting officer.

One of the assignments of error is that the circuit court erred in denying the defendant's motion for a directed verdict of acquittal. The statute under which the defendant was indicted is section 14-329, Oregon Code 1930, providing as follows:

"If any person shall buy, receive, or conceal, or attempt to conceal, any stolen money or property, knowing or having good reason to believe the same to be stolen, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than six months nor more than five years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $50 nor more than $500."

In prosecutions for receiving stolen goods, guilty knowledge is the gravamen or substance of the offense. Without again referring to the testimony, we hold that there is sufficient evidence in the record, if Mrs. LaPove's testimony was not that of an accomplice and the jury so found, from which the jury could find or infer that the defendant, Stacey, had knowledge, before receiving them, that the two women's coats had been stolen, or that he concealed or attempted to conceal them with knowledge of their having been stolen. State v. Savan, 148 Or. 423, 36 P.2d 594, 96 A.L.R. 497, and authorities therein cited.

An accomplice has been defined as "a person who knowingly voluntarily, and with common intent with the...