Hewitt v. Com.

• Decision Date: 05 March 1973
• Citation: 194 S.E.2d 893,213 Va. 605
• Court: Virginia Supreme Court
• Parties: Richard Thomas HEWITT, Jr. v. COMMONWEALTH of Virginia.

Page 893

194 S.E.2d 893

213 Va. 605

Richard Thomas HEWITT, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

March 5, 1973.

Humes J. Franklin, Jr., Waynesboro (Franklin, Poindexter & Franklin, Waynesboro, on brief), for plaintiff in error.

William A. Carter, III, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

PER CURIAM.

Richard Thomas Hewitt, Jr. was tried by the court without a jury on an indictment charging him with larceny of a pickup truck. He was found guilty of unauthorized use of a vehicle in violation of Code § 18.1--164 ¹ and sentenced to serve six months in jail. We granted Hewitt a writ of error to determine whether the evidence supports the finding of unauthorized use and whether Hewitt could be convicted of unauthorized use when the indictment charged him only with larceny.

On the night of August 12, 1971, Hewitt was a passenger in a station wagon that failed to negotiate a curve on Route 639 in Nelson County and overturned. None of the five occupants was killed, but Hewitt and another were injured. Leaving their wrecked vehicle the men walked up the road until they found parked in front of a house a pickup truck belonging to Wallace A. Hamner. Some of the group took possession of the truck, and one of them started the vehicle by 'hotwiring' it. Because of his injuries, Hewitt did not actively participate in taking or moving the truck, but he rode on it with the others as it was driven about a half mile into Amherst county and up a fire trail. There was some evidence that Hewitt wished to be taken to a hospital, but the group slept in the truck that night and abandoned it on the fire trail the next day before dispersing to their homes.

Counsel for Hewitt argues that the evidence, while sufficient to support a conviction of larceny, is insufficient to support a conviction for unauthorized use. The essential difference between the two offenses is one of intent. A taking of personalty without the owner's consent and with intent to deprive him of possession permanently constitutes common law larceny. See Vaughan v. Lytton, 126 Va. 671, 679, 101 S.E. 865, 867 (1920); Black's Law Dictionary 1023 (4th ed. 1951). A taking of a vehicle with intent to deprive the owner of possession temporarily is unauthorized use under § 18.1--164. Intent may be inferred from the circumstances. Here, Hewitt's slight involvement, his injuries and his desire to be taken to a hospital in the truck were sufficient to justify the trial court in inferring that he did not intend to deprive the owner of possession permanently.

Moreover, although the evidence may tend to prove only the offense charged in the indictment, the finder of fact may nevertheless convict of a lesser offense. Blankenship v. Commonwealth, 193 Va. 587, 591--592, 70 S.E.2d 335, 337 (1952); Maxwell v. Commonwealth, 165 Va. 860, 868--869, 183 S.E. 452, 456 (1936).

We have not heretofore determined whether unauthorized use is a lesser offense included under larceny. We hold that it is. In Slater v. Commonwealth, 179 Va. 264, 18 S.E.2d 909 (1942), and Robinson v. Commonwealth, 190 Va. 134, 56 S.E.2d 367 (1949), both relied upon by Hewitt, unauthorized use was assumed to be a lesser included offense as the defendants, who were indicted for and convicted of larceny, sought to have the trial court give instructions to the jury on unauthorized use.

Code § 19.1--249 provides:

'If a person indicted of a felony be by the jury acquitted of part of the offense...