State v. Black , 163 Wash. 237 ( 1931 )

The ownership and right of possession of the car in question had wholly passed from Central Motors to Brydges and Goodman. When the agency of Central Motors was terminated on October 15, 1929, thenceforth they were as strangers to the car. They had no right whatever to say when, where, or how, the car should be used. Only Brydges and Goodman had that right. Brydges, who was the business and sales manager of the Valley Durant Company, testified that appellant had no right to use the car for pleasure or personal purposes. Contrary to his contention, appellant was permitted to testify as to what he understood his rights to the car were. His version of his rights to it differed from that of the state's witnesses, but it was for the jury to say whether he had the right to use the car for pleasure or personal purposes.

The cross-examination and the offer of proof were therefore improper, and the trial court correctly so decided.

The offer of appellant of testimony as to the nature of his right to the personal use of the car before it was the property of Brydges and Goodman and before his employment by them, was the offer of wholly irrelevant and incompetent evidence.

Under the statute, if appellant had the intention at the time of taking the car to appropriate it to his own use and defraud and deprive the owners thereof, his offense was complete at the time of the taking. Under this statute it is not necessary to intend to permanently deprive the owner of the property. Statev. Larson, 123 Wash. 21, 211 P. 885. Nor does the intention of the accused to restore the money, or other property embezzled, at some future time relieve the act of its criminal nature. 20 C.J. 437; 9 R.C.L. 1279-1298; State v. Campbell, 99 Wash. 502,169 P. 968.

Not even the subsequent return of the property, or repayment of the money to the owner, excuses or relieves the offense of its criminal nature if the offense was complete at the time of the appropriation. 9 R.C.L., supra; State v. Pratt,114 Kan. 660, 220 P. 505, 34 A.L.R. 189.

Under the evidence in this case, appellant on the day alleged, without the knowledge or consent of the owners of the car, appropriated it to his own use, secretly removed it from the possession and control of the owners, drove it to a distant state upon the pretext that he intended to enlist the cooperation of another man in returning to Sumner, Pierce county, within ten days, with the other man to go into business together in Tacoma. It is certain that the car was appropriated by appellant to use for an unauthorized purpose. It was a question for the jury, under all the facts and circumstances, whether he then appropriated it with a felonious intent.

Hence, the defense of an intention on the part of appellant to take the car only for temporary use and the instructions requested on the theory that the intention must have been to permanently take and deprive the owners of the property, were not well founded.

The court aptly instructed the jury upon the question of the intention of appellant when he took the car, in line with our cases under the statute in question. State v. Campbell, supra;State v. Larson, supra. See, also, State v. Peters,43 Idaho 564, 253 P. 842.

Appellant argued that, since the intent cannot be implied as a matter of law, but must be proved as a matter of fact, no specific intent to appropriate the property by appellant was shown in this case. Two cases cited by appellant, State v.Dolen, 17 Wash. 499, 50 P. 472, and State v. Clark, 98 Wash. 81,167 P. 84, held that the presumption of criminal intent may arise from proof of the commission of an unlawful act, and, if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with a criminal intention, and it is for the accused to rebut that presumption. The act of itself is evidence of intent, and the specific, felonious intent may be inferred from all the facts and circumstances in evidence.

In this case, the trial court gave one instruction substantially the same as one that was before us in State v.Larson, supra, l.c.p. 32. We there held that the instruction was one, in effect, that, if one took property from another knowing that he had no right so to do, a felonious intent therefrom might be inferred. And, on the other hand, if one took property belonging to another in a bona fide belief that he had a right to take it, no felonious intent could be inferred therefrom. But it was said that "the contrary conclusion must result where the taker is conscious of the fact that he is committing a wrong in taking the property."

Here, as in that case, the trial court aptly instructed the jury as to the question of taking under a claim of right so to do even though that claim of right was untenable; and that if the jury so found their verdict should be not guilty.

Under our own cases, the judgment should be affirmed. I therefore dissent.

MITCHELL and MILLARD, JJ., concur with HOLCOMB, J.