State v. Hall , 105 Utah 162 ( 1944 )

LARSON, Justice

(concurring in result — dissenting in part).

I cannot concur in some holdings in the prevailing opinion, nor in much of the rationale thereof. In an endeavor to make the points of difference clear, I list the conclusions in that opinion in which I concur.

I agree that the record justified the following:

(1) The corpus delicti was proved; that is, that sometime between May 23rd and May 25th, 1942, a case of Champion spark plugs was stolen from Strevell-Paterson.

(2) That within two days thereafter, defendant was in possession of a case of such plugs, which were subsequently introduced in evidence as Exhibit “B”.

(3) That defendant sold such plugs, Exhibit “B,” to Sanford under conditions which justify an inference that defendant knew they were “hot.”

(4) “That the exact date upon which the larceny was committed is immaterial * * *. But the event or transaction is material * * *. A conviction cannot be had for any act other than the one intended from the beginning to be charged.” (Italics mine.)

(5) That the instruction No. 4 as given by the court to the jury was erroneous, for the reasons and under the authorities stated in the prevailing opinion.

(6) That under the charge as a whole, this error is not such as to impel us to reverse the judgment.

(7) That the verdict and judgment from which this appeal was taken be affirmed.

Instead of listing the points and statements in the prevailing opinion with which I differ, I shall discuss the law and the record as I understand it, from which discussion the points of difference will be apparent.

The hub of the opinion, about which its rationale revolves the keystone which supports the whole structure, is the statement that the state charged and relied on the theft of Exhibit B, and not upon the theft of a carton of spark plugs between May 23 and May 25, 1942. The difficulty with that position is that it places the stones of the arch, including the keystone, with the wide end down so they slip out under the pressure of the structure which must rest thereon.

In the first place, larceny exists in the act of the person, not in the property stolen. Defendant is tried and punished for his conduct, for the act of assorting with the intent to deprive the owner of property. The property stolen is an incident or element in the pleading and the chain of evidence necessary to establish the act of asporting. The ownership of the property asported is a link in the pleadings and chain of evidence necessary to establish the intent to steal, that is, the intent to permanently deprive the owner thereof. Defendant is charged and tried for an act of misbehavior, with a feloneous intent. As far as pleading is concerned the time of the offense, the property taken, and the ownership of such property are elements used or set up to fix, and determine what act or behavior is involved, that defendant may prepare his defense, both parties be circumscribed in their proofs, and the act, the existence of which is to be determined by the jury, may be definite and certain. As far as the evidence is concerned, such facts must be proved as laid so no unfair advantage may be taken and the acquittal or conviction may constitute a bar to another prosecution for the same act, conduct, or offense.

Let us see now what the state charged. The complaint charged that

“between the 23rd day of May, 1942 and the 2’5th day of May, 1942 * * * Hall stole from Strevell-Paterson one case of H-10 Champion Spark Plugs * * *.”

The information charged the offense in the same language. While the state need not prove the offense was committed on the exact date alleged, yet the allegation of date is an element which tends and helps to identify the act upon which complaint is made, and to distinguish it from some other or separate act of offense. But while the state is not bound by the exact date alleged, it certainly is bound to the particular act, event or occasion to which its proof is directed, and can not take a conviction on any other act. (See admission No. 4 in the beginning of this opinion, quoted from the prevailing opinion.) Let us now examine the record. The first witness, Hay, manager of Strevell-Paterson, testified that on May 19 they placed an order for three cartons of spark plugs, adding, “they were replacement of plugs previously lost by the railroad company.” He then identified and put in evidence the original invoice for the shipment of the three cartons of plugs ordered May 10, and testified that of such shipment, one carton of H-10’s was not delivered; that the carton of plugs not delivered with the other two on May 25th were, according to the invoice, the same type of plugs as were in a carton in court, which later was identified as Exhibit B. That such plugs are difficult to get, and handled in this territory by only two distributors; that during the past year no sales in carton lot had been made by it. Ballegooie testified that in unloading freight from the railroad cars at the platform of the Stordor Forwarding Company at Salt Lake City, in May, 1942, he unloaded three cases of Champion spark plugs for Strevell-Paterson. Haslam, warehouse foreman at Stordor Forwarding, testified that according to their’ manifest three cartons of Champion spark plugs were on May 23rd unloaded from freight cars at their dock for Stre-vell-Paterson; that on Monday morning, May 25th, only two cartons were there, and the third could not be found. Sanford testified that on May 26th he bought from defendant one carton of H-10 Champion spark plugs, Exhibit B, for $45; that defendant first asked $100, but accepted $45 when advised that was all the money Sanford had. Beck-stead, a policeman, testified that on May 27th he was detailed “to investigate some missing spark plugs;” that on June 1st he picked up Exhibit B at the garage where Sanford worked; that on June 2nd he arrested defendant, and had several conversations with him about the spark plugs but defendant denied any connection with them. It was stipulated, at the request of the state, that three cartons of spark plugs listed on the invoice for plugs ordered May 10th and received in Salt Lake May 23rd were unloaded from freight cars at the Stordor docks. All this goes directly and unequivocally to prove an act, a theft, which could only have been committed between May 23rd and May 25th, because it was a theft of a carton which definitely was not in Salt Lake City until May 23rd.

Haslam, recalled, testified that he knew nothing about it, but their records showed that a month or six weeks before May 23rd three cartons of spark plugs consigned to Strevell-Paterson had disappeared from their docks, but he did not know and had no record as to what size or kind of plugs they were. He said he did not testify that they were stolen. All evidence other than this, and it is cited in full in the prevailing opinion, relative to any other plugs, is shown in the prevailing opinion to have been incompetent, hearsay, and of no probative value. There was evidence to show the value of a carton of H-10 plugs as about $265 to the retailer and $300 to the consumer and that defendant had ready access to the Stordor dock as a delivery man. That is the whole record; there is no other evidence pertaining to the issue; and on that record it went to the jury.

Every bit of evidence in the record regarding any aspor-tation, any taking or carrying away, every bit of evidence of any theft of any property is definitely and specifically tied to the theft of a carton of H-10 plugs delivered by the railroad company to the Stordor dock on the 23rd of May and missing therefrom on May 25th. There is no evidence of any other theft; there is no evidence that any carton, of H-10 plugs other than the shipment received on May 23rd was ever delivered to Stordor dock for Strevell-Paterson. All the evidence as to a theft therefore goes to a very definite time, not open to variation, between May 23rd and May 25th. No other transaction could be involved. All the evidence as to the property goes to a carton of spark plugs received May 23rd at Stordor docks. There is no room for argument or inference otherwise. Every bit of evidence is directed at that particular carton. There is no competent evidence in the record that any other carton of such plugs was ever stolen from Strevell-Paterson or anyone else. So that the pleading and all the evidence is directed at a particular and definite time, place, piece of property and event; to wit, the theft of a particular carton of H-10 spark plugs, unloaded from a railroad car onto the Stordor dock on May 23rd and which particular carton was missing from the dock on May 25th. The state having charged and definitely directed all its evidence to this particular and specific carton of plugs is bound thereby and cannot have or maintain a conviction on any other plugs or event.

Does the record then sustain a conviction of the theft of the particular carton of plugs so shipped, received and missed? In other words, could the jury find that Exhibit B was the carton of plugs stolen between May 23rd and May 25th? As shown in the prevailing opinion and conceded in the beginning of this opinion there is ample evidence from which the jury could find the theft of the particular carton of H-10 plugs received on the dock on May 23rd; they could find that defendant was in possession of a carton of plugs on May 26th, which carton was identified as Exhibit B; they could find defendant knew Exhibit B was stolen goods and sold them to Sanford; that Exhibit B was the same kind of carton and the same kind of plugs as the carton of plugs stolen a couple of days before; they could find that Hall was in a hurry to get rid of the “hot” goods; and if the jury so found, it must follow that they found Hall deliberately falsified when he denied to the officers that he knew anything about, or had any connection with, either the missing plugs or with Exhibit B. May they from these facts infer that Exhibit B was the carton missing from the shipment received at the dock on May 23rd? Not only may they so infer, but from the record such inference seems almost unescapable. Such plugs, very hard to get in this vicinity, not obtainable in carton lots except by wholesalers, and for a year past not sold by wholesalers in carton lots, appear two days after the theft very “hot” in the hands of a man who had easy access to the place from which the stolen plugs were taken; and who knew they were taken and who fails utterly to make any explanation of his possession of such an unusual and rare article as a carton of plugs when there is no evidence of any other such carton of plugs being in the vicinity, or elsewhere obtainable, the record almost compels a conclusion that Exhibit B was the missing carton. On this ground, and on this ground alone, I concur in the holding that the verdict and judgment appealed from should be affirmed.