State v. Cohen , 143 Wash. 464 ( 1927 )

Appellant, feeling aggrieved at his conviction and sentence upon a charge of grand larceny, brings the case here for review.

The principal ground urged for reversal is that the court erred in not instructing the jury that they might find appellant guilty of petit larceny.

Petit larceny is, of course, an included offense in the charge of grand larceny, and should be submitted to the jury if the evidence in the case presents a conflict as to the value of the thing taken.

In this case, the state claimed that the appellant had bought and concealed a stolen truck tire of the value of $49, a tube of the value of $5.40, and a truck tire rim of the value of $9.75, or a total of $64.55.

The evidence disclosed that the tire was one which came on a truck to the Garford Motor Truck Company, and had never been used, save to drive the truck from the freight yards to the warehouse. The purchaser of the truck desired a different make of tire, so the new tire was taken off. The purchasing agent for the Garford Motor Truck Company testified that the tire was worth $46.00, the tube $5.00, and the rim $9.75, or a total of $60.75. Another witness testified that the value of the tire alone was about $27 or $30. The appellant offered no evidence contradicting these values, his defense being directed to his knowledge of the property being stolen rather than as to its value.

[1] Appellant now urges that although all the testimony as to the value showed a sum much in excess of twenty-five dollars, yet the jury might not have believed the testimony, and having seen the tire, tube and rim, might well have concluded that they were after all second-hand, and worth less than twenty-five dollars. It is apparent, of course, that a finding that this property was worth less than twenty-five dollars would be contrary to the evidence in the case. We have never had occasion to answer this precise question before, although we have many times held that the court should instruct as to the lower grades of an included offense only when the evidence was such as to make it a question for the jury as to which of two or more included offenses had been committed. State v. Dolan, 17 Wn. 499,50 P. 472; State v. Young, 22 Wn. 273, 60 P. 650; State v.Gottstein, 111 Wn. 600, 191 P. 766; State v. Donofrio, 141 Wn. 132, 250 P. 951.

The rule applicable to the situation developed by the evidence in this case is stated in 36 C.J. 926, as follows:

"But when the value of the property stolen is material, as constituting an essential element of the offense, or as determining the grade or degree thereof, or the punishment to be inflicted upon the culprit, the jury should be instructed concerning the necessity for proof of value, and the method of determining it, unless the prosecution is for petit larceny of an article of intrinsic value, in which event there is no need to instruct the jury specifically as to the necessity of proof of value, or unless in a prosecution for grand larceny the undisputed evidence fixes the value incontestably above the amount necessary to constitute the offense charged, in which event the court is not required to instruct the jury concerning the necessity for the proof to show a value above that amount."

In People v. Harris, 77 Mich. 568, 43 N.W. 1060, it was claimed that error had been committed by the failure of the trial court to instruct the jury that, if the property taken was of a lesser value than twenty-five dollars, it would not constitute the offense charged. The defendant in that case had stolen a cow and the evidence of the owner was that he had paid fifty dollars for the animal, and that the defendant had tried to sell the cow at from thirty to forty dollars. The court said:

"There was no testimony in the case showing the property worth, or tending to show it worth, less than $30, so that it was unnecessary to tell the jury that stealing property worth a less amount than $25 would not constitute the offense charged."

In Davis v. Commonwealth, 191 Ky. 242, 229 S.W. 1029, the defendant was charged with grand larceny of some clothes taken from a dry cleaning establishment. The evidence showed the value to be about four hundred dollars. On appeal it was urged that the jury should have been instructed as to petit larceny. Said the court:

"There was no contrariety in the evidence as to the value of the stolen property; the whole evidence without contradiction showed it to be in the neighborhood of $400, and that it was all stolen at the same time, and we therefore fail to see the necessity of the court incorporating in its instruction a qualification that the property should have been of greater value than $20. It is likewise apparent that there was no evidence in the record upon which to base an instruction on petit larceny."

To the same effect see State v. Hayward, 153 Iowa 265,133 N.W. 667; People v. Diamondstein, 42 Cal.App. 490,183 P. 679; Jones v. State, 49 Ind. 549.

There being no evidence in the case that the articles stolen were worth less than twenty-five dollars, it would be futile to instruct the jury to determine whether their value was less than that amount.

It is urged that, in Sedro-Woolley v. Willard, 71 Wn. 646,129 P. 372, we recognized the right of a jury to find an amount different from that testified to by the witnesses. The precise point there decided was that a finding by the jury of a higher value than that testified to was not in itself prejudice. We took occasion to say that there was evidence tending to show that the building on which the jury placed a value of ten hundred dollars was worth about twelve hundred dollars.

It is plain to be seen that, to adopt the rule prayed for by appellant, would require the submission in every grand larceny case of the lesser crime of petit larceny, no matter what the value of the article, because the jury, having seen the article, might say that it was worth less than twenty-five dollars. Thus one charged with stealing a ten hundred dollar bond, and the testimony placing its value at from nine hundred to nine hundred fifty dollars, could demand that the jury decide if it was worth less than twenty-five dollars. Or, if a five hundred dollar fur coat worn two or three weeks was stolen, and the testimony placed its value at from three hundred to three hundred fifty dollars, the defendant could still demand that the jury be instructed as to petit larceny. We are not disposed to adopt such a rule and it follows, therefore, that there was no error in this respect.

[2] It is also urged that the defense was prejudiced by certain remarks of the trial court. The record shows that there was repeated wrangling between the attorneys on both sides, and after warnings by the court the following occurred:

"THE COURT: One minute. Issue a bench warrant and put both these gentlemen in jail for one hour. I am running this case. Just wait. Hold that up a moment. I will put you on probation. Go on. Now let us have no more of this, no more wrangling with each other."

But we see nothing prejudicial in these remarks. They were directed alike to both attorneys and could by no stretch of the imagination have tended to put one side at a disadvantage to the other. That what the court said was abundantly justified by the actions of counsel is clearly borne out by the record. Counsel who appear in this court for appellant were not trial counsel in this cause. It must be remembered that the patience of trial courts is a thing of variable elasticity, depending much upon the individual, but which has its breaking point. The trial court in this instance displayed more than average patience towards counsel, and its suggested summary handling of the situation was entirely proper. Patience in trial courts is a very commendable virtue, but counsel should not be permitted to use it as an instrument to set at naught the orders, decorum and authority of the court. 26 R.C.L. 1028.

Other assignments are urged, but we think them not well taken.

The judgment is affirmed.

MACKINTOSH, C.J., and TOLMAN, J., concur.