State of Davis, 7727

• Citation: 238 P.2d 450,72 Idaho 115
• Decision Date: 20 November 1951
• Docket Number: No. 7727,7727
• Parties: STATE v. DAVIS.
• Court: United States State Supreme Court of Idaho

Page 450

238 P.2d 450

72 Idaho 115

STATE v. DAVIS.

No. 7727.

Supreme Court of Idaho.

Nov. 20, 1951.

Rehearing Denied Dec. 19, 1951.

Vernon K. Smith, Boise, for appellant.

Robert E. Smylie, Atty. Gen. of Idaho, and J. R. Smead, Asst. Atty. Gen. and Merlin S. Young, Pros. Atty., Boise, for respondent.

GIVENS, Chief Justice.

Appellant was convicted of grand larceny through the theft of an automobile, February 13, 1947.

Smilanich, owner of a 1941 Chevrolet Club coupe, the automobile in question, left it unlocked in the parking lot before the Circle M, some kind of a business establishment on Highway 30 a mile or two west of Boise in Ada County. When Smilanich came out of the Circle M about forty-five minutes later, the automobile was gone. He immediately reported the theft, giving a list of the contents of the automobile, to the Sheriff's office.

April 22, same year, Smilanich saw the automobile parked by the Black Diamond on Vista and Overland Sts., Boise. He and his friend, Cansdale, while examining the automobile to establish its identity, were accosted by a woman, impliedly though not definitely shown to be defendant's wife, who inquired as to their interest in the car. They asked her who owned the car and she immediately drove away. Being satisfied it was Smilanich's car, they blocked its egress by putting one of their cars in front of it and one immediately behind it, and called the Sheriff's office. When appellant came out of the Black Diamond to the car, they asked him who it belonged to and he said: 'A garage.' They asked him to wait, saying the Sheriff had been called. He declined and extricated the car by backing and jamming the interfering cars, and hastily drove away, pursued by Cansdale in his car. Cansdale was unable to keep up with defendant, overtake or stop him, but pursued him--sometimes going 80 to 85 miles per hour--and finally lost contact with him near Eagle across the Boise River and some eight or nine miles from the Black Diamond.

The automobile was found June 1949 near Milwaukie, Oregon, wrecked and in a dilapidated condition, an attempt having been made to obliterate the identification numbers thereon.

Some few days after April 22, 1947, the Sheriff contacted appellant, who claimed the reason for his actions at the Black Diamond was, he thought Smilanich and Cansdale were men be previously had been in trouble with over a car deal, who had threatened to beat him up; that a few days prior he had sold this car to 'some traveling man,' never identified or produced.

Appellant's defense was a claimed purchase of the automobile through and from the mythical, ubiquitous, but evanescent stranger of uncertain name, lineaments, and at the time of the trial, of unknown whereabouts, redolent of the itinerant, convenient ephemeral horse trader of horse stealing days; alibi evidence tending to show that he was on his way to, at, or coming back from, Seattle at the time of the claimed theft.

When the theft was reported to the Sheriff's office, a typed list was made therein of the contents of the car as reported by Smilanich. Offered in evidence, appellant offered this objection: 'Mr. Smith: I object to the exhibit as not being properly identified. He had nothing to do with the preparation of it, and it was apparently prepared by somebody else. It is incompetent, irrelevant and immaterial.' There was no showing the articles listed were ever found. The specific objection made that the exhibit was not properly identified was not well taken. All it purported to be was a list made in the Sheriff's office pursuant to what Smilanich had told them. The list, therefore, completed the official records showing everything Smilanich told the Sheriff's office at the time he reported the theft. The exhibit probably was immaterial, but the error, if any, was harmless. If these articles were in the automobile when Smilanich left it, they might have been taken out before the car was stolen; if not, they were in there when it was stolen.

George Denney, Deputy Sheriff of Ada County, saw the car when it was found in Oregon and as to its identity by its numbers, testified as follows:

'A. On a '41 Chevrolet motor, there are two numbers. One is called the 'public' motor number and can be readily seen upon raising the hood of the car. It is on the right side of the motor, near the right of it, and about the center of the motor at the back end. There is a 'secret' motor number on a '41 Chevrolet motor that can be found under what is called the 'valve inspection plate,' which is a plate that covers the valves, and you must remove it, and the motor number will be found on a portion of that motor where the plate bolts to the motor. It is on the front part of the motor, about the center from up and down, and in that particular spot where there should have been a number there was none visible to the naked eye. It was smooth as was the rest of the valve inspection plate part there.

'Q. Just continue. What further did you do? A. There is a way of ascertaining if there had ever been numbers placed on that piece of metal. When a tremendous amount of pressure is put on a metal * * *.

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'A. When metal is injured, such as stamping a number into it, or a blow onto it, the injury goes deeper than is visible to the eye. The part that is injured can be removed, to the eyesight, and yet that injury is still in the metal. There is an operation known as 'acid-heat treatment' that will burn the injured molecules of metal so that they will come up and be visible to the eye.

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'And the rest of the metal next to the injured particles will be shiny just as the new metal is. We placed acid and heated that section where that number should have been with an acetylene torch until it was very hot, and the motor number the original number that was on that block before it had been ground off came up and was very visible to the naked eye.

'Q. Mr. Denney, how long have you been in the police work? A. About thirteen years, sir.

'Q. What, if any, training have you received in regard to this matter of identifying numbers that you have just testified about? A. Since 1939 I have attended seven F. B. I. Schools. The Auto Theft Bureau have men in the field that train us in our own business. While I was in the Army I went to the Criminal Investigation School, and in each of those schools they teach you that metal process. It is known as the 'acid-heat treatment' to bring up hidden numbers on metal, whether it be guns or any other type of metal, for identification purposes.

'Q. Now, did you say that you were able to see that number that you brought up in the manner you have described? A. Yes, sir.

'Q. Do you know what that number was?

'Mr. Smith: Just a moment. I object to the question on the ground that it calls for an answer as to the contents of a writing which is not the best evidence. Section 9-411 of our Idaho Code.

'The Court: Overruled.

'A. That number was AA838745.'

This was the number on Smilanich's automobile.

The above ruling is urged as error. Appellant cites no authority except the statute to the effect these stamped numbers on the metal of the motor are 'writings' or 'written instruments' within the meaning of the statute, and these numbers are identification marks, not writings under the cited statute. People v. Congress Radio, 133 Misc. 542, 232 N.Y.S. 647, 226 App.Div. 784, 234 N.Y.S. 860, and 251 N.Y. 572, 168 N.E. 432; Donaldson v. United States, 7 Cir., 82 F.2d 680; People v. Oberby, 323 Ill. 364, 154 N.E. 125; State v. Dunn, 202 Iowa 1188, 211 N.W. 850; Hall v. State, 171 Ark. 787, 286 S.W. 1026; State v. Holland, 141 Kan. 307, 40 P.2d 469; State v. Derrickson, 1 W.W.Harr. 342, 31 Del. 342, 114 A. 286; People v. Billardello, 319 Ill. 124, 149 N.E. 781, 42 A.L.R. 1146; 22 C.J.S., Criminal Law, § 703, page 1195.

The expert evidence of the witness, as qualified, was admissible. Burch v. Valley Motor Lines, 78 Cal.App.2d 834, 179 P.2d 47, at page 51.

Photographs were taken of the automobile when found which depicted it and surrounding external objects and the interior, in black and white or shades thereof--not in other colors. Appellant objected on the ground that because not in true color, the photographs were not admissible for use by Smilanich and Cansdale to identify the automobile found in Oregon as Smilanich's car. The difference in color of the automobile when stolen, when found, and the condition and color of the interior were exhaustively gone into in the evidence and no possible misunderstanding or mistake was suggested because the photographs were not colored and they were clearly admissible. State v. Kleier, 69 Idaho 278, at page 286, 206 P.2d 513; State v. Powell, 71 Idaho 131, 227 P.2d 582, at page 585.

David Grossman's name was endorsed on the information as a witness for the State as 'Crossman.' At the trial this mistake was corrected and over appellant's objection that Grossman's name was not endorsed as required by the statute, he was allowed to testify. This was not error. State v. McGann, 8 Idaho 40, 66 P. 823; State v. Allen, 20 Idaho 263, at page 272, 117 P. 849.

Appellant urges it was error to refuse his requested instruction No. 3 telling the jury appellant was not charged with illegal possession of a stolen car, but larceny. So far as possession of a recently stolen car tended to prove appellant was guilty of larcency, Instruction No. 7 accurately and correctly covered the pertinent point and is not subject to appellant's criticism that it left the impression the jury might find appellant guilty even though the actual original felonious taking had been by some one other than appellant. There is no legal distinction between principal and accessory. State v. Kleir, 69 Idaho 278, at page 286, 206 P.2d 513.

The Court is not required to instruct on crimes not charged. State v. Williams, 36 Idaho 214, 209 P. 1068; State v. Griffith, 55 Idaho 60, 37 P.2d 402; State v....