State v. Parker , 104 Utah 23 ( 1943 )

I concur in the results.

The defendant sets out with commendable clarity four points on which he seeks reversal. I am unable to discern from the opinion how it answers any of these questions. The points raised by defendant are as follows:

"1. There is no evidence to support the verdict of the jury that defendant was guilty of grand larceny in that the undisputed evidence shows that the automobile taken was the property of the defendant and was not `personal property of another' within the definition of the crime larceny.

"2. The undisputed evidence shows that the offense which was committed, if in fact defendant is guilty of committing an offense, is a violation of Sec. 110, Chap. 46, Laws of Utah, 1935, a misdemeanor.

"3. The undisputed evidence shows that the value of the lien at the time the car was taken was $30 and, therefore, if in fact a larceny was committed, it was petit larceny and not grand larceny.

"4. The evidence shows that the claimed lien was waived by the acceptance of the sight draft in payment of the obligation."

The opinion rightly states that at common law a bailor could steal his own chattel from a bailee. What he stole was the special property of the bailor in the chattel. Fundamentally the word "property" is derived from the French word "propriete" which in turn was derived from the Latin 1 "proprietas" meaning "that which is proper to anything, a peculiar and characteristic quality of a thing or, formerly, a person, as the properties of a triangle." See Webster's New International Dictionary, Second Edition, Unabridged. In this sense the chattel was perhaps conceived of as having legal properties when referred to its owner, i.e., the property of being disposed of, of being used or consumed. By strict meaning in an attempted analogy to physical properties a chattel had legal properties in respect to the owner rather than the owner "property in" the chattel. Since the right to possess, use, enjoy and dispose of a thing was something not inherent in the thing but only existed in the form of a right in someone to do these things what was perhaps the original conception of the meaning of property as a legal attribute of the thing in respect to a person become inverted to comport with the true factual situation. The person was said to have this property or right in respect to the thing. In this same sense a bailed chattel has, as to the bailee, the legal property of remaining in his possession as a resource for the collection of a debt, and inversely and traditionally the bailee had special property in the chattel. If by stealing a chattel from the owner a person in effect steals his ability to take advantage of the legal properties that the chattel has in respect to him by the same reasoning a bailor or any one else who removes a chattel from the possession of the bailee removes the ability to use the legal properties of that chattel in respect to the bailee. The common law and the cases appear to uphold the proposition that a bailor may commit larceny from the bailee. I see no reason for not following these authorities, many of them which are cited in the main opinion.

By the reasoning above, when the chattel possesses a legal attribute or property in respect to the bailee by which he can retain possession for recourse, such attribute is a property of the whole chattel but its value is as to the bailee only the amount of his indebtedness. Mr. Justice 2 McDONOUGH has developed this matter according to the intent of the legislature as discerned from the gradation of degrees of larceny. I agree with his conclusions in that regard. The third question must therefore be answered that if the jury found only $30 owing, the offense must be considered a misdemeanor.

As to the second point, I am inclined to the opinion that Sec. 110, Art. 9, Chap. 46, Laws of Utah 1935, was designed to reach the offense of obtaining custody by trick, etc., and not larceny by trick. Thus if the evidence revealed a situation where it could not be proved that the defendant intended to steal the car but only to obtain temporary possession a charge might be laid under Sec. 110, but not under the larceny statutes. Sec. 110 was not meant to supersede the larceny statutes which include larceny by trick.

As to the fourth point: If the defendant intended to obtain the car by trick — the trick being to use the sight draft as a device to lull Lena Lauriente and her husband into relaxing vigilance or permitting him to take the car, knowing that the draft would not be cashed, he would be liable for larceny. At this point, it is well to call attention to the fact that the evidence was not only that "the defendant drove away his car" as stated in the opinion of Mr. Justice MOFFAT, but that when Mr. Lauriente went to the back of the shop, he suddenly jumped in and drove it precipitously out of the garage. The jury might have added this circumstance to the circumstance that Mrs. Lauriente went to the bank with the draft and concluded that Parker gave her to understand that he would wait for her return, it being understood that her errand to the bank was originally for the purpose of collecting the money. Hence, the jury concluded that it was all a trick on Parker's part to get possession of the car. In so concluding the jury must necessarily have concluded that the fact that Lena Lauriente gave the bank the draft for collection was not according to the intent with which she left the garage. It might also have concluded the contrary from the fact that she gave the bank the draft for collection, i.e., that it was the understanding between the Laurientes and Parker that she was to accept the draft as payment. But the jury evidently did not think so; otherwise it could not have found that Parker's driving the car rapidly away constituted larceny. It all sums up to the conclusion that there was evidence from which the jury could have determined that the lien had been waived or that it had not been waived. It chose the latter conclusion. The defendant must, therefore, fail on his fourth point.

The question as to adequate instructions was not raised by the parties but, as Mr. Justice McDONOUGH points out, the lack of an instruction as to the amount of the indebtedness being the measure of grand or petty larceny may not be only an inadequacy but be misleading. Since the first element 3 in Instruction No. 5 used the phrase "did steal, take and carry away one automobile of the value of more than fifty dollars" the jury's mind would naturally conclude that the value of the car and not the special property of the complaining witness was the measure of whether the offense was petty or grand larceny. Furthermore, since the case is to be remanded for a new trial rather than for dismissal, the court should be advised as to the nature of the other instructions which should have been given. We have said the court must not single out any particular piece of evidence and instruct on it. This does not mean that the evidence may not be summed up in an instruction. We have also said that the instructions must present the jury with the law applicable to the case as shown by the evidence, and not give the jury mere abstract propositions of law. Everts v. Worrell, 58 Utah 238,197 P. 1043; Id., 20 N.C.C.A. 849; State Bank of BeaverCounty v. Hollingshead, 82 Utah 416, 25 P.2d 612; Smith v.Cannady, 45 Utah 521, 147 P. 210. Where no piece of evidence is singled out and emphasized I see no better way to instruct in reference to the evidence and in a concrete manner on all theories of the case than to sum up the salient bits of evidence for each party. Where evidence is uncontradicted I see no objection to stating it as a foundation for instructions. Furthermore, where the evidence is in conflict I see no objection to stating the points in which the evidence is in conflict, noting to the jury that it is for it to resolve the conflict. Moreover, where one conclusion must naturally flow from resolving the evidence one way and another definite conclusion flow from resolving its conflicts the other way or drawing inferences of a different sort, it is proper to instruct the jury as to what its conclusions could be under each factual determination, being careful in criminal cases to inform the jury that at all events the determination of the guilt or innocence of the defendant was one purely for its untrammelled discretion, based of course, on reason. There is nothing in the statute which prevents this. 104-24-14 and 104-24-16 require the instructions to be in writing, consecutively numbered by paragraphs and to be read to the jury without oral comment or explanation.

In such a case as the one at bar where a peculiar fact situation may lie within the framework of the concept of larceny, I think the jury should be informed as to the peculiar applicability of the elements of larceny as applied to a bailor-bailee relationship. And as said before I see no objection to guiding the minds of the jury in its deliberations to all possible reasonable inferances, — being sure to give them all — which it might take from the action of Lena Lauriente in going to the bank with the sight draft under the circumstances, together with her action in handing the draft to the bank for collection upon learning that it would not cash the draft on presentation. The jury could have been told that this latter action could be taken into account with all the other circumstances, including the conversation between the Laurientes and defendant before Mrs. Lauriente left in order to determine whether the Laurientes took the draft in payment, waiving the lien or not.

Also, on the question of defendant's intent and purpose for issuing the draft, I see no reason why all the evidence in that matter pro and con, including the type of draft, the reason for the bank failing to honor it, the manner in which the defendant got in and drove his car out of the garage might not be given the jury with instructions that it was free to draw such inferences as it may find reasonable therefrom.

LARSON, J., concurs in the result.