Pass v. State

• Citation: 267 P. 206,34 Ariz. 9
• Decision Date: 14 May 1928
• Docket Number: Criminal 678
• Parties: LEO PASS, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

267 P. 206

34 Ariz. 9

LEO PASS, Appellant, v. STATE, Respondent

Criminal No. 678

Supreme Court of Arizona

May 14, 1928

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded for new trial.

Mr. R H. Brumback and Mr. E. B. Goodwin, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Frank J. Duffy Assistant Attorney General, for the State.

OPINION

LOCKWOOD, J.

Leo Pass, hereinafter called defendant, was informed against for the crime of grand larceny, the property alleged to have been stolen being a Ford touring car. He was duly convicted thereof, and has appealed to this court. There are some five assignments of error, but we think we need consider only the last, which is that the verdict rendered is against the law and the evidence.

Larceny, under our statute, is defined as:

"The felonious stealing, taking, carrying, leading, or driving away the personal property of another." Pen. Code 1913, § 481.

Under this definition, the essentials of the crime of larceny are, first, the taking of the thing which is the subject of the crime from the possession of the owner into the possession of the thief; and, second, an asportation thereof. This was the rule at common law, and is also the rule under all the statutes, except possibly that of Texas. 36 C.J. 747. It is the act of taking which distinguishes larceny from its kindred offense of receiving stolen goods, for if a defendant had no part in taking the property, his subsequent connection with it, even his assistance to the thief in carrying it away or secreting it, will not render him guilty of larceny. People v. Disperati, 11 Cal.App. 469, 105 P. 617; State v. Rechnitz, 20 Mont. 488, 52 P. 264; Rush v. State, 95 Tex. Cr. Rep. 564, 255 S.W. 403. It follows therefrom that one who after a larceny has been completed merely aids in the further removal of the stolen goods is not a principal in the theft, but only an accessory after the fact or a receiver of stolen goods. Able v. Commonwealth, 5 Bush (Ky.) 698; Norton v. People, 8 Cowen (N.Y.) 136; Grace v. State, 83 Tex. Cr. Rep. 442, 203 S.W. 896.

If, however, the larceny was committed pursuant to a conspiracy in which the asportation was the part to be performed by the defendant, he may be convicted as a principal in the larceny. State v. Morse, 12 Idaho 492, 86 P. 53; Martin v. State, 12 Okl.Cr. 510, 159 P. 940.

The evidence for the state in this case, taken at its strongest, consists of a written statement by defendant and an alleged corroborating statement made by one Alfonso Aguilar. The statement of the defendant is as follows:

"On September 5th, 1927, Labor Day, in the morning, I was at the pool hall at Second street and Madison street when Alfonso Aguilar came up. I was sitting outside. We talked awhile, and he asked me to wait for him there. I got up and went west on Madison street and met him. He was in a Ford touring car. I got in with him, and he told me the car was stolen. I told him I did not want to go with him, but he said, 'No, come on along and we will strip this car.' We went west and south of the Murphy schoolhouse. He started to tear down a fence, and I stepped on the post and held the wire while he drove over it into some weeds and brush. We then took off the...