Harvey v. State, 4487

Decision Date12 October 1962
Docket NumberNo. 4487,4487
PartiesArmand J. HARVEY, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Dwight B. Claar, Jr., Las Vegas, for appellant.

Charles E. Springer, Atty. Gen., Carson City, John F. Mendoza, Dist. Atty., Charles L. Garner and William S. Barker, Deputy Dist. Attys., Las Vegas, for respondent.

THOMPSON, Justice.

A jury found Harvey guilty of grand larceny. Judgment was duly entered upon the verdict and sentence imposed. He appeals. We believe the judgment of conviction must be reversed because of an error committed by the trial court while orally instructing the jury regarding the elements constituing the offense to grand larceny. A brief factual recitation will suffice for the purpose of focusing attention upon the mistake made.

Victor Havas, the complaining witness, operated a used-car business in Las Vegas. He had inherited certain items of jewelry which were kept in his office desk. The defendant Harvey, whom he had met previously, called at his office to either appraise the jewelry or purchase it. Havas placed the jewelry on his office desk for examination by Harvey. After the lapse of a few minutes, Havas departed to attend a customer. When he later returned to his office, Harvey was gone. At that time Havas did not realize that his jewelry was also missing. He became aware of that fact later when Harvey telephoned him advising that he, Harvey, had an offer for the jewelry. Havas told Harvey to return immediately. Harvey did not return; instead, he sold the jewelry and left Las Vegas. He was subsequently apprehended in California and returned to Nevada to stand trial upon the charge of grand larceny.

Though Harvey did not testify at the trial, his theory of defense was clearly advanced by his counsel during cross examination of the state's witnesses, by the jury instructions offered but refused, and by summation to the jury. It was that Harvey could not be convicted of the crime charged, grand larceny, because the specific intention to deprive Havas of the jewelry did not arise until after the telephone conversation and did not, therefore, coincide with the original taking and possession.

Several states have, by legislative enactment, combined the common law crimes of larceny, false pretenses, and embezzlement into one offense under a general theft statute. 1 This legislation is designed to simplify procedure and to relieve courts from technical questions arising from contentions that the evidence shows the commission of one of these crimes other than that alleged in the information. Nevada is not, however, among these states. It is necessary, therefore, that upon a charge of one of these offenses the state establish all the elements required for a conviction under the common law. In this regard Nevada law is settled that, to constitute larceny, there must exist in the mind of the perpetrator, at the time of the taking, the specific intent to permanently deprive the owner of his property. A taking with the intention of returning the property, or a taking without the intent to permanently deprive the owner of his property, will not amount to larceny, even though the perpetrator, after gaining possession of the property, formed that intent. State v. Clifford, 14 Nev. 72, 33 Am.Rep. 526; State v. Ward, 19 Nev. 297, 10 P. 133; Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 213 P. 103. The requirement that the original taking and the felonious intent coexist in point of time was properly mentioned in the written instructions given in the instant case. Moreover, we recognize that the question of whether the property was originally taken with such intent is one of fact, the determination of which is to be made from a consideration of all the circumstances preceding, attending and following the taking of the property. State v. Cudney, 47 Nev. 224, 218 P. 736. In the case before us there was an arguable issue regarding the time when Harvey formed the intent to steal. Indeed, defense counsel in summation devoted particular attention to that issue. He argued, in substance, that though his client might be guilty of some crime, he was not guilty of larceny. Thus, when the case was submitted to the jury for deliberation, the theory of Harvey's defense had been made clear, and the jury had been properly instructed by the court. Had nothing further occurred our task would be easy. However, after the jury had deliberated for some time, it returned to court to ask a question.

'The Court: Do you have a question?

'Mr. Blair (Foreman): Yes. We have come to the point of we'd like a definition of wrongful coming into possession. In other words, according to the record, we would like to know whether wrongful possession could mean at the time the telephone call was allegedly made * * * by the defendant to Mr. Havas, as well as in the beginning when the merchandise was first examined in his business.'

The court answered the question orally, and at length. Its answer precipitated further questions or statements by the foreman, one of them being:

'The Foreman: This entire thing is complex in whether he either stole it or embezzled it.'

It is not necessary to set out in full the discourse by the court in response to questions by the jury foreman. It comprises six pages of the transcript. It is sufficient to state that on three separate occasions the court, inter alia, informed the jury that it was immaterial when Harvey formed the intent to permanently deprive Havas of his jewelry. Furthermore, the court concluded with this statement: 'You have to determine, plain and simple, whether at the time the jewelry was placed on the desk, as Mr. Havas testified, you have to determine from the evidence whether or not it was taken without his knowledge or consent by this defendant and whether it was worth $100 or under $100, that is what you have to determine.' To this statement the foreman responded: 'Gee! It would have been so simple!' The jury then retired, and promptly returned a verdict finding Harvey guilty of grand larceny. The Nevada cases which we have cited, State v. Clifford, 14 Nev. 72, 33 Am.Rep. 526; State v. Ward, 19 Nev. 297, 10 P. 133; Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 213 P. 103, established that the oral instructions referred to were incorrect statements of the law. Moreover, they were in conflict with correct written instructions previously given.

In a criminal case, conflicting instructions upon a given subject, one correct and the other erroneous, are presumed to be injurious unless the record clearly shows otherwise. State v. Ferguson, 9 Nev. 106; State v. Scott, 37 Nev. 412, 142 P. 1053; State v. Milosovich, 42 Nev. 263, 175 P. 139. If the jury is misled by such conflicting instructions, a new trial is warranted. State v. McGinnis, 5 Nev. 337. The record before us reveals a perplexed jury. It could not decide the case until its confusion regarding the onset of Harvey's criminal intent was resolved. Upon being erroneously advised that their concern with this element of larceny was immaterial, th...

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19 cases
  • Hill v. State
    • United States
    • Nevada Supreme Court
    • May 9, 1979
    ...and the failure to so instruct is reversible error. Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212 (1970); Harvey v. State, 78 Nev. 417, 421, 375 P.2d 225 (1962). The same principle applies with equal force to an affirmative defense which, if established, would mandate an acquittal. In ......
  • Valdez v. State, 49541.
    • United States
    • Nevada Supreme Court
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    ...the sentence on which it had decided. 3. Moore v. State, 88 Nev. 74, 75-76, 493 P.2d 1035, 1036 (1972). 4. Harvey v. State, 78 Nev. 417, 422-23, 375 P.2d 225, 227-28 (1962) (interpreting prior version of 5. Grey v. State, 124 Nev. ___, ___, 178 P.3d 154, 163 (2008). Alternatively, we would ......
  • Ibarra v. State
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    ...and we will not disturb the jury's finding because there is sufficient evidence in the record supporting it. See Harvey v. State, 78 Nev. 417, 420, 375 P.2d 225, 226 (1962) ("[T]he question of whether the property was originally taken with [felonious intent] is one of fact, the determinatio......
  • Guidry v. State
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    • Nevada Supreme Court
    • June 2, 2022
    ...v. State, 131 Nev. 371, 394-95, 352 P.3d 627, 643-44 (2015) (indicating robbery is a general intent crime); Harvey v. State, 78 Nev. 417, 419, 375 P.2d 225, 226 (1962) (indicating larceny is a specific intent crime). The Legislature can, of course, provide greater protection than the Double......
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