Benson v. State , 1977 Wyo. LEXIS 319 ( 1977 )

ROSE, Justice,

dissenting, with whom McCLINTOCK, Justice, joins.

I dissent. As indicated in the majority opinion, possession of recently stolen property imposes an onerous burden upon a defendant to explain his possession. The majority opinion concedes that the defendant gave such an explanation through his testimony which pointed to the safekeeping of the air-cooling unit. Yet, because the defendant offered an improperly framed instruction on this main theory of his defense, the majority concludes that the trial court was warranted in refusing to give an instruction which affirmatively apprised the jury of the defendant’s explanation of possession and its effect. I view this conclusion as an extreme divergence from previous rulings of this court and from fundamental notions of due process.

I fail to see the distinction, suggested by the majority opinion, between this case and the cases of Blakely v. State, Wyo., 474 P.2d 127 (1970), and State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947). In Blakely, we said:

“We do not pretend to say Blakely’s requested instruction A was necessarily free from criticism. Neither do we say instruction B was entirely correct. However, the two requests made by defendant, after he offered substantial evidence tending to show that he intended to hold Hatch’s calves for damages and did not intend to steal them, were at least sufficient to apprise the court of the theory of defendant’s defense and to make it incumbent upon the court to give one or both of the instructions or to otherwise properly instruct on the matter of intent and defendant’s theory of the case. [Emphasis supplied]

⅝ # * ⅜ ⅜ ⅝:

“In order to meet the basic requirements of due process, it was necessary for the court in Blakely’s trial to instruct on defendant’s theory of the case and to instruct correctly on the need for the jury to find, in order to convict Blakely, that he held Hatch’s calves with the intent to steal them.”

In the case at Bar, the language of defendant’s Instruction C clearly apprised the trial court of the theory of defendant’sxde-fense — a taking of another’s property under an honest but mistaken belief. More generally, the trial court had before it evidence of defendant’s explanation of possession, to-wit: that he held the air-cooling unit for purposes of safekeeping with no intent to steal it. The combination of these two aspects of defendant’s presentation made it incumbent upon the trial court to properly instruct on the matter of intent and the defendant’s theory. It is no answer to this principle to say that defendant tendered an imperfect instruction. Blakely imposes a duty to instruct on the main defense theory, even if the tendered instruction is incorrect.¹ I would even go so far as to hold that, in certain situations, Rule 51, W.R.C.P., imposes a duty on the trial court to instruct on a defendant’s explanation of possession of recently stolen property even if no instruction thereon is offered. See, State v. Cox, 240 Iowa 248, 34 N.W.2d 616 (1948). The question is not one of a trial court’s accountability, it is one of a defendant’s entitlement to due process.

Furthermore, it is no answer to the above-mentioned principles to say that the defendant’s defense theory was covered by the other instructions, dealing with the intent required to establish the offense of grand larceny. First, this argument was presented and rejected by this court in Blakely v. State, supra, and State v. Hickenbottom, supra. In Blakely, we said:

“It was urged in Hickenbottom that other instructions on the matter of criminal intent were sufficient without the instruction offered by defendant. For example, the jury was instructed that:

* * * the felonious intent charged in the information is one of the material elements of the crime charged and it is incumbent on the State to prove such felonious intent beyond all reasonable doubt.’

Even this kind of instruction was absent in Blakely’s trial. The state attempts to argue nevertheless that it was sufficient for the court to tell the jury the state must prove every material allegation, including that defendant ‘did wilfully, maliciously and unlawfully steal.’

“Speaking for the court in Hickenbottom, at 178 P.2d 128, Chief Justice Riner conceded the instructions there dealt with the matter of criminal intent. He said, however, the instructions nowhere affirmatively stated that an honest belief on the part of defendant in his ownership of the sheep would be a good defense. The writer of the opinion then proceeded to review a number of cases supporting his position.

“He concluded, at 178 P.2d 131, that it was made clear from the authorities reviewed that Hickenbottom’s requested instruction, ‘or one similar to it,’ should have been given; that it was prejudicial error to refuse it; and that defendant had a right to have his main defense in the case ‘affirmatively’ presented to the My.

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“. . . In the case before us, we have already indicated we consider the court’s failure to cause Blakely’s main defense to be affirmatively presented to the jury sufficiently serious to amount to a denial of due process.” [Emphasis supplied]

If other instructions on criminal intent were insufficient in those cases, how can we now say that similar instructions in this case transform a denial of due process into harmless error? The duty imposed upon the trial court, once it is apprised of the defense theory, is to affirmatively present that theory to the jury. General instructions on intent cannot and do not discharge this responsibility. In light of these conclusions, I would have reversed the appellant’s conviction and remanded the case for a new trial.

1 . We recently held, in Thomas v. State, Wyo., 562 P.2d 1287, 1292-1293:

“The remaining questions involve assertions of error based upon the failure of the trial judge to give certain tendered instructions. The instruction denominated as ‘B’ was as follows:

“ ‘YOU ARE INSTRUCTED that, if from the evidence in this case, you find that the vehicle being operated by Defendant at the time of the accident possessed a defect that deprived Defendant of control of that vehicle, you must acquit the Defendant.’

The failure to give an instruction embodying this principle was error, which alone would require reversal.

“There was testimony of Marvin D. Robinson, an expert mechanic, presented by defendant, that the car defendant was driving had a defect in the steering system which could have resulted in a loss of steering control so that the wheels would have cramped when steering and he would have been unable to ‘control the front steering at all.’ Although there is considerable rebuttal of this and contention that this did not come into effect or operation until after defendant originally lost control of his car, this in no manner diminishes the right to have the jury instructed upon defendant’s theory of the case if there is competent evidence to sustain such theory, Blakely v. State, Wyo., 474 P.2d 127, 129; State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119, 131. Although we do not approve nor hold that this instruction is a complete or proper statement of the law because, among other things, it does not set out that the defect must be a proximate cause of the accident, it was at least sufficient to advise the court of defendant’s theory and should have been given, Blakely v. State, supra.” [Emphasis supplied]