State v. Boggs

• Court: Iowa Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State v. Boggs, 181 Iowa 358, 164 N.W. 759 (Iowa 1917)
• Decision Date: 20 October 1917
• Docket Number: No. 31721.,31721.
• Parties: STATE v. BOGGS.

181 Iowa 358

164 N.W. 759

STATE

v.BOGGS.

No. 31721.

Supreme Court of Iowa.

Oct. 20, 1917.

Appeal from District Court, Wapello County; D. M. Anderson, Judge.

Defendant, who was indicted under the provisions of section 4823 of the 1913 Supplement to the Code, was tried and acquitted by the jury. An instruction requested by the state was refused and exception taken. The state appeals. The material facts are stated in the opinion. Affirmed.H. M. Havner, Atty. Gen., F. C. Davidson, Asst. Atty. Gen., and Elmer K. Daugherty, of Ottumwa, for the State.

A. W. Enoch and W. S. Asbury, both of Ottumwa, for appellee.

PER CURIAM.

The indictment in this case is based upon section 4823 of the 1913 Supplement to the Code, the material part of which is as follows:

“* * * Or if any chauffeur or other persons shall without the consent of the owner take, or cause to be taken, any automobile or motor vehicle, and operate or drive or cause the same to be operated or driven, he shall be imprisoned. * * *”

At the close of the testimony counsel for the state requested the court to give the following instruction:

“* * * That consent given by the owner of the car, given for specific purpose or for a stated time, would not be consent to use the car for a different purpose, nor generally, nor for an unlimited time; and consent to use the car for a period of 15 or 20 minutes would not be consent to drive the car to Muscatine.”

The court refused to give the above instruction, but in lieu thereof gave the following:

“(5) The gist of the offense charged is taking and driving of the motor car in question without the consent of the owner. The defendant is not on trial in this case for any other offense than that charged in the indictment. If the owner consents to the person charged taking and driving the car, then the person charged cannot be convicted of taking and driving the car, even though he may drive it for a long distance, or may damage the car, or even convert it to his own use. If the owner consents to the taking and driving and suffers any wrong therefrom, then his remedy is something other than a prosecution under the statute for taking and driving without his consent.”

The above statute was evidently enacted for the purpose of providing punishment for the taking and operating of an automobile or other motor vehicle, or causing the same to be taken and operated, without the consent of the owner, under circumstances not amounting to larceny.

[1] The taking...