People v. Mercado

The appellant, Joe Mercado, and his codefendants, Gillermo Juardo arid Ed Fifer, were charged, in an information filed by the district attorney of San Diego County, with the crime of burglary (charged in the first count), and likewise with the crime of receiving stolen goods (charged in the second count). The record does not show whether Juardo ever was tried. Fifer and appellant were tried jointly. At the conclusion of the trial of these two, the charges against Fifer were dismissed upon motion of the district attorney, on the ground that, as to him, the evidence was insufficient. The jury acquitted appellant of the charge of burglary, but found him guilty of receiving stolen goods. Judgment was entered accordingly, and Mercado now appeals therefrom and from the order denying his motion for a new trial. He contends: (1) That the evidence is insufficient to support that part of the verdict which finds him guilty of receiving stolen goods; (2) that, in the form in which it was returned by the jury, the verdict is contrary to law; and (3) that the court erred in permitting the district attorney to refresh the memory of one of the people’s witnesses' by reading from a transcript of testimony previously given by him.

[1] It is conceded that the evidence is sufficient to sustain a finding that the goods were stolen, that appellant received them, and that he disposed of a part of them for his personal gain; but it is claimed that it is insufficient to show that appellant knew, at" the time when he received them, that the goods had been stolen. This court, as we often have said, will not weigh the testimony of witnesses where there is sufficient evidence, if believed by the jury, to justify the verdict. We will reverse a judgment on the

The testimony leaves absolutely no doubt that on November 23, 1921, the dwelling of one Prank B. Stillson, in the city of San Diego, was burglarized and there was stolen therefrom a number of articles, including a suit of clothes, a pair of shoes, a pair of clippers such as are used by barbers, a razor, a pair of opera-glasses, cuff links and a fountain-pen.

Upon the question of appellant’s guilty knowledge, we have the following: Theodoro Martinez, a barber, testified that in the latter part of November, 1921—he could not remember the precise date—appellant came into his barbershop and sold him a pair of clippers, a pair of opera-glasses, and a fountain-pen—all for the sum of $2.75. The articles were identified as those which previously had been stolen from the Stillson home. This witness further testified that, at a previous trial of appellant for this same offense, the latter told the witness that the man who actually stole the articles (presumably the defendant Juardo) had already been sent to state’s prison, and requested the witness, when he should be placed upon the stand by the prosecution, to deny that he knew appellant. Another witness, H. Kahn, the keeper of a second-hand clothing store, testified that on November 23, 1921, at 11:20 o’clock A. M., appellant came into his store and sold him a pair of shoes for $3.50. The shoes were identified as a part of the stolen goods. Stillson had left his home that morning at about 10 or 10:30 o ’clock, which was prior to the burglary. Appellant, therefore, must have sold the shoes to Kahn within less than an hour and a half after they were stolen. Kahn further testified that, pursuant to the requirements of an ordinance of the city of San Diego, he had caused appellant, as the vender of second-hand goods, to sign a receipt for the price which the witness paid him for the shoes, and that appellant signed the fictitious name “Antonio Moreno,” and gave as his address the ‘ ‘ Santa Rosa Hotel. ’ ’ In justice to appellant it should be stated that at the trial he claimed that he had sold the shoes for one Antonio Moreno. The jury, how

[2] While guilty knowledge of the larceny is an essential fact to be proved in á prosecution for receiving stolen goods, such knowledge need not be that actual and positive knowledge which is acquired from personal observation of the fact. In People v. Clausen, 120 Cal. 381 [ 52 Pac. 658 ], our supreme court quoted approvingly from Wharton’s Criminal Law as follows: “Whether the defendant knew that the goods were stolen is to be determined by all the facts of the case. It is not necessary that he should have heard the facts from eye-witnesses. He is required to use the circumspection usual with persons taking goods by private purchase; and this is eminently the case with dealers buying at greatly depreciated rates. That which a man in the defendant’s position ought to have suspected

[3] In view of this array of authority as to the quantwrn of evidence sufficient to support a verdict on a charge of receiving stolen goods knowing them to be stolen, we think the jury was justified in finding appellant guilty. The fact that he gave a fictitious name and an incorrect address when he sold the shoes to the second-hand clothing dealer; that he told the arresting officer, not long after the burglary, that it was his opinion that Juardo (an ex-convict) had stolen the goods, and that he had loaned the pass-key to Juardo, who, he said, had obtained it for the purpose of entering the house; that he, together with Juardo and Fifer, was observed near the scene of the burglary; that the stolen goods not disposed of were found in appellant’s room; and that appellant had asked Martinez, the barber, not to identify him—all these are concurring circumstances which furnish evidence to support the inference that appellant had knowledge that the goods had been stolen. It was a question of fact for the jury, whose province it was to draw the inference of guilty knowledge from the incriminating circumstances.

[4] The next point is based upon a supposed defect in the form of the verdict, which was as follows: “We, the jury in the above-entitled cause, find the defendant, Joe Mercado, not guilty of burglary in the second degree as charged in the first count of the information, and guilty as charged in the second count of the information.” Appellant’s argument against the sufficiency of this verdict, as a conviction of the crime of receiving stolen goods, is made

[5] The form of a verdict is to be regarded as immaterial, provided the intention to convict of the crime charged is unmistakably expressed. (People v. McCarty, 48 Cal. 559 ; People v. Swenson, 49 Cal. 390 , 391; People v. Holmes, 118 Cal. 448 [ 50 Pac. 675 ]; Pen. Code, sec. 1404.) It should be construed in connection with the information and the plea of the defendant. (People v. Tilley, 135 Cal. 62 [ 67 Pac. 42 ].) If this verdict be construed in connection with the information and appellant’s plea thereto, it is clear that the offense upon which he was convicted is “stated” in the verdict. By finding him guilty “as charged in the second count of the information,” the verdict, in effect, finds appellant guilty of the crime of receiving stolen goods—the only crime that is alleged in the second count.

[6] There is no merit in the claim that the court erred in permitting the district attorney to refresh the memory of one of the people’s witnesses by reading from a transcript of his testimony. When Berg, the detective, was on the witness-stand, he testified that he had been told by appellant that Juardo had asked him for the pass-key and that he, appellant, had given it to Juardo. The witness then was

[7] There is no force in the suggestion that the document from which the district attorney read may not have been an official transcript of the testimony that had been given by the witness at the preliminary examination. In making his objection to the use of the transcript for the purpose of refreshing the memory of the witness, defendants’ counsel did not suggest that the document was not an official transcript. Nor is there anything in the record here tending to show that it was not such a duly authenticated transcript as is contemplated by section 869 of the Penal Code. All intendments are in favor of the regularity of the proceedings of the lower court. Error is never presumed ; and in the absence of any showing to the contrary,

The judgment and the order denying a new trial are affirmed.

Works, J., and Craig, J., concurred.