State v. Boyenger

• Decision Date: 09 May 1973
• Docket Number: No. 11021,11021
• Citation: 95 Idaho 396,509 P.2d 1317
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Fred Arlin BOYENGER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1317

509 P.2d 1317

95 Idaho 396

STATE of Idaho, Plaintiff-Respondent, v. Fred Arlin BOYENGER, Defendant-Appellant.

No. 11021.

Supreme Court of Idaho.

May 9, 1973.

Herman E. Bedke, Burley, for defendant-appellant.

W. Anthony Park, Atty. Gen., J. Dennis (J. D.) Williams, Asst. Atty. Gen., Boise, Gordon S. Nielson, Pros. Atty., Cassia County, Burley, for plaintiff-respondent.

BAKES, Justice.

On June 7, 1971, an information was filed charging appellant, Fred A. Boyenger, with the felony charge of false and fraudulent use of a credit card in violation of I.C. § 18-3113, ¹ and being a persistent violator of the law. Part I of the information in one count charged Boyenger with the false and fraudulent use of a credit card on two separate occasions in violation of I.C. § 18-3119, ² which makes two or more separate transactions within six months a felony when the aggregate amount of goods obtained exceeds $60.00. Part II of the information alleged that appellant had, on two earlier occasions, been convicted of felonies and charged him with being a persistent violator of the law.

Appellant was tried on June 29, 1971. The Master Charge credit card that appellant allegedly used belonged to one Gary D. Enzminger of Meridian, Idaho, who testified that his credit card had been stolen from his home in December of 1970. The owner of a ladies clothing store in Burley, Idaho, testified that on January 4, 1971, appellant purchased merchandise totaling $57.68 with the credit card in question and a sales lady at another store in Burley testified that on January 4, 1971, Boyenger purchased merchandise valued at $36.03 with the Master Charge card in question, in both instances representing himself to be Gary Enzminger. The jury returned a verdict of guilty to the charge of false and fraudulent use of a credit card. The same jury was then read Part II of the information and appellant was tried on the persistent violator charge. On June 30, 1971, the same jury that found appellant guilty of false and fraudulent use of a credit card returned their verdict that the defendant is a persistent violator of the law. On July 19, 1971, following a presentence investigation, Boyenger was sentenced by commitment to the State Board of Corrections for a term not to exceed ten years.

The first assignment of error alleges that the trial court erred in refusing to give appellant's requested jury instruction #1. The requested instruction reads as follows:

'You are instructed that the offense charged in the information filed herein is a felony being a violation of 18-3113 and 18-3119, Idaho Code. You are further instructed that I am required by law to instruct you as to a lesser included offense and that if you do not believe the defendant guilty of the offense charged in the information you may find him guilty of the lesser included offense of violation of 18-3002 Idaho Code which in this case is a misdemeanor since the value of the property allegedly obtained is less than $150.00.' (Clerk's Tr. p. 19).

The statute which appellant contends constituted the lesser included offense reads as follows:

'18-3002. Receiving money or property under false personation.-Every person who falsely personates another, and in such assumed character receives any money or property knowing that it is intended to be delivered to the individual so personated, with intent to convert the same to his own use, or that of another person, or to deprive the owner thereof, is punishable in the same manner and to the same extent as for larceny of the money or property so received.'

Regarding included offenses, I.C. § 19-2312 reads as follows:

'19-2312. Conviction of included offense.-The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.'

The decisions of this Court regarding the duty of a trial court to instruct on all matters of law necessary for their information, including included offenses under I.C. § 19-2132, have been conflicting. Prior to State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968), the decisions generally held that if a defendant desired other instructions than those given by the court, he must request them or no error can be predicated thereon. ³ In the Gonzales case the defendant had requested an instruction that was an incorrect statement of the law. This Court stated at page 156, 438 P.2d at page 901:

'The request was properly refused. Nevertheless the court had a duty to instruct the jury on all matters of law necessary for their information, I.C. § 19-2132, and the defendant was entitled to have his theory of the case submitted to the jury upon proper instructions.' 92 Idaho at 156, 438 P.2d at 901.

The Gonzales case did not mention any of the prior cases mentioned in footnote number 3 above, but nevertheless reversed the conviction. However, after Gonzales three cases have been dicided which appear to retrench to the decisions of this Court set out in footnote number 3 above. ⁴

In an effort to reconcile these often conflicting opinions regarding jury instructions concerning lesser included offenses, and recognizing that a defendant as a trial tactic may not desire any instructions regarding lesser included offenses, we are of the view that in the first instance the burden is upon the defendant to request the court to instruct on lesser included offenses. After such a request, whether it is in the form of a proposed instruction or instructions, which may or may not correctly state the law, or merely an oral or written request as disclosed by the record directed to the trial court to instruct on included offenses, the trial court then has a duty to instruct the jury upon all lesser included offenses which the facts and the pleadings of the particular case justify.

Applying the foregoing principles to this case, the first issue presented is whether or not the crime of receiving money or property under false personation, I.C. § 18-3002, is an included offense in the crime of false and fraudulent use of a credit card, I.C. § 18-3113, § 18-3119. If the answer is yes, then the trial court, under the doctrine of the Gonzales case, committed reversible error in its refusal to so instruct the jury.

The resolution of this issue must start with an examination of our earlier cases on this subject. In State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963), included offenses were defined as follows:

'An 'included offense' is one which is necessarily committed in the commission of another offense; or one, the essential elements of which are, charged in the information as the manner or means by which the offense was committed. (Omitting citations).' 86 Idaho at 69, 383 P.2d at 605.

In State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), this Court said:

". . . (W)here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." 73 Idaho at 138, 248 P.2d at 219.

Regarding included offenses, this Court, in State v. Pruett, 91 Idaho 537, 543, 428 P.2d 43, 49 (1967), in a footnote, said:

'This court has not followed the strict rule that an included offense is one that is necessarily included in the statutory definition of a higher crime; but in effect has held that an offense is an included offense if it is alleged in the information (complaint) as a means or element of the commission of the higher offense.' 91 Idaho at 543, 428 P.2d at 49.

The critical language in I.C. § 19-2312 requiring instruction on included offenses reads 'necessarily included in that with which he is charged in the indictment.' In arriving at a conclusion of whether or not another crime is 'necessarily included' the question is, should the court look merely at the crime with which the defendant is 'charged in the indictment,' or should the court also look at the facts elicited at the trial? The resolution of this issue is critical in this case because while the crime of false and fraudulent use of a credit card under I.C. § 18-3113 does not necessarily require a false personation in order for the crime to be committed, in the facts of the present case the use of the credit card without the authority of the person to whom such card was issued, as proscribed by I.C. § 18-3113, was accomplished by falsely personating and assuming the character of the owner of the credit card, Gary Enzminger. Stated another way, whereas all instances of false and fraudulent use of credit cards to obtain goods or services prohibited by I.C. § 18-3113 do not require a false personation prohibited by I.C. § 18-3002, in the facts of the present case the false and fraudulent use of the credit card was accomplished by such a false personation.

We are of the view that courts cannot look merely to the crime as charged in the information to make the determination of whether or not another offense is 'necessarily included' within that charged, but must also look at the evidence adduced at the trial. In Wharton's Criminal Law & Procedure, the author states:

'When on the evidence the accused might be convicted in a lesser degree of the offense charged or of an included offense it is the duty of the court in its instructions to embrace all the degrees of the particular offense and all included offenses to which the evidence is applicable.' 5 Wharton's Criminal Law & Procedure 268 (1957). (Emphasis added).

In a recent decision, People v. St. Martin, 1 Cal.3d 524, 83 Cal.Rptr. 166, 463 P.2d 390 (1970), the California Supreme Court said:

'The first such question presented is whether the court should instruct upon necessarily included offenses. The general rule is that a defendant is entitled upon request to instructions on necessarily included offenses which the evidence tends to prove. (Omitting citations) . . . The requirement of instructions on lesser included offenses is based on the elementary principle that ...