Impson v. State, Criminal 835

• Decision Date: 08 June 1936
• Docket Number: Criminal 835
• Citation: 58 P.2d 523,47 Ariz. 573
• Parties: VESTER IMPSON, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

58 P.2d 523

47 Ariz. 573

VESTER IMPSON, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 835

Supreme Court of Arizona

June 8, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded, with directions.

Mr Marshall W. Haislip, for Appellant.

Mr John L. Sullivan, Attorney General, and Mr. W. Francis Wilson, Assistant Attorney General, for the State.

OPINION

ROSS J.

Vester Impson was convicted of grand larceny, to wit, of stealing a motor vehicle, that is, an International truck, model 1934 the property of J. C. McElhaney, and placed on probation. Because he feels the court erred in refusing requested instructions and in giving instructions to the jury, he has appealed.

The facts necessary to a consideration of the errors assigned are as follows: On August 28, 1935, one L. L. Hull was, and had been for some six months, in the employment of J. C. McElhaney as an irrigation boss at the latter's ranch near Buckeye. He was living with one Garland Wimberly, and for some two or three weeks the defendant, who was a second cousin of Hull's, had been stopping with them and doing odd jobs in the neighborhood, but had not been employed by McElhaney, nor had he done any work for him. Hull was furnished by McElhaney all tools and implements, including the International truck, necessary to do his work of irrigating the ranch.

About 7:30 o'clock the evening of August 28, 1935, Hull left the Wimberly house for Phoenix and did not return until around 2:30 o'clock the next morning. When he left for Phoenix, the truck was parked in front of the Wimberly house; the key being hidden under the mat on the floor of the truck. When he returned, the truck was gone, and he learned from Wimberly that defendant had left about 9 or 10 o'clock that night, driving the truck away. About a week afterwards Hull and W. S. Armstrong, foreman of the McElhaney ranch, apprehended the defendant at Sierra Blanca, Texas, where his wife lived. He told them "he was drinking and just taken the blues and got the truck and drove off with it." About the same tme the local officers located the truck at an auto court at Globe, Arizona, where defendant had left it as soon as the gasoline was exhausted.

The defendant was a witness in his own behalf, and admitted taking the truck, but stated that he thought it belonged to his cousin, Hull; that he intended to drive it to Phoenix to a dance at Jack's Place and then return it. He explained that he had had some drinks of whisky and beer before taking the truck, and that he indulged in more drinks at Jack's Place; that there he met a transient camp acquaintance who joined him; that a drunken barber asked him and his new acquaintance to take him to Sunflower, a road camp for transients on the Bush highway, and he did so, going through Mesa, where he was handed a ticket by an officer for speeding; that he left the barber at Sunflower and went on into Globe and arrived there with his gasoline exhausted and no money to buy more; that he left the truck at an auto court in Globe, expecting his companion, picked up at Jack's Place, to return it to Buckeye; that from Globe he wired his wife at Sierra Blanca, Texas, for money, and received from her $5, and then left for Sierra Blanca and was arrested upon his arrival there and as he got off a freight train.

The first six assignments of error bear upon the question of possession. The information laid the ownership of the truck in McElhaney and the evidence conclusively supports that allegation. Defendant seems to think that, because the truck had been turned over by McElhaney to Hull to be used by the latter in performing his duties of irrigating the ranch, the ownership should have been alleged in Hull. The latter was merely a servant or employee of McElhaney, and his possession, of course, was that of his employer.

The instructions that were refused submitted that possession of the car being in Hull constituted a variance from the allegation in the information, but that is not correct. It is the law that in every larceny there must be a trespass upon the possession of the general or special owner, as the case may be. That is one of the elements of the crime. But a trespass upon the possession of the agent or servant is a trespass upon the possession of the owner of the property. These instructions were very properly refused.

The defendant contends that the following instruction does not correctly and fully state the law applicable to the facts of the case, in that it omits the element of intent on the part of defendant to permanently deprive the owner of his property:

"The material allegations of larceny which must be proven beyond a reasonable doubt are the felonious intent, that is, the intent to steal, and this intent as applied to the taking means a taking without color of right or excuse, an asportation, which means the carrying away or the movement from one place to another, with the intent to convert to one's own use the property of another. Those are the material elements of larceny in this state, which must be proven beyond a reasonable doubt before you would be justified in returning a verdict of guilty...."

Larceny is defined by our statute as follows:

"Larceny is the felonious stealing, taking, carrying,...