State v. Carden, 33552-33553

• Decision Date: 14 March 1957
• Docket Number: No. 33552-33553,33552-33553
• Citation: 50 Wn.2d 15,308 P.2d 675
• Parties: The STATE of Washington, Respondent, v. William P. CARDEN, Defendant, Richard A. Rinkes and Mitchell Thompson, Appellants.
• Court: Washington Supreme Court

Page 15

50 Wn.2d 15

308 P.2d 675

The STATE of Washington, Respondent, v. William P. CARDEN, Defendant Richard A. Rinkes and Mitchell Thompson, Appellants.

No. 33552-33553.

Supreme Court of Washington, En Banc.

March 14, 1957.

Alan L. Froelich, Seattle, for Richard A. Rinkes.

Franco & Bensussen, Seattle, for Mitchell Thompson.

Charles O. Carroll, Pros. Atty., Laurence D. Regal, James J. Caplinger, Deputy Pros. Attys., Seattle, for respondent.

HILL, Chief Justice.

This is a hypertechnical appeal in a criminal cause. The sufficiency of the evidence to sustain the conviction of appellant Richard A. Rinkes on a charge of larceny is not questioned; but it is urged that the conviction should be set aside because the state proved too much.

It was charged that appellant Rinkes and defendant William P. Carden 'did secrete, withhold and appropriate certain personal property' which they knew was stolen (i.e., they concealed certain stolen plumbing supplies in a truck), and that appellant Mitchell Thompson 'did aid, abet, encourage, assist, advise and counsel' them in the unlawful act (i. e., through him, Rinkes and Carden were negotiating for the sale of the stolen goods to a dealer in plumbing supplies).

The subsection of the statute under which Rinkes and Carden were charged makes it a crime to 'aid in concealing or withholding any property wrongfully appropriated,' knowing the same to have been so appropriated. Laws of 1915, chapter 165, § 3(5), p. 494, Rem.Rev.Stat. § 2601(5) (cf. RCW 9.54.010(5)). We do not understand that any contention is made that the state could not use the word 'secreting' instead of 'concealing.' However, appellants do place emphasis upon the word 'aid' in the statute, and urge that, because the statute makes it an offense to 'aid in concealing or withholding,' a defendant cannot be charged under that subsection with 'concealing or withholding.'

With this contention we cannot agree. The state might well have charged the defendants in the words of the statute, but a charge (and proof) of concealing and withholding is proper under § 3(5). See State v. Slater, 1950, 36 Wash.2d 357, 366, 218 P.2d 329. The statute referred to defines a crime; it does not relate to an individual who aids or abets in the commission of a crime. See Laws of 1909, chapter 249, § 8, p. 892, Rem.Rev.Stat. § 2260 (cf. RCW 9.01.030).

The principal contention made on behalf of appellant Rinkes is that, the state having proved that he actually stole plumbing supplies, he cannot be convicted of larceny on proof of concealing and withholding the plumbing supplies which he had stolen.

In our larceny statute Laws of 1915, chapter 165, § 3, p. 493, Rem.Rev.Stat. § 2601 (cf. RCW 9.54.010), the element common to all five definitions of 'larceny' contained in five different subdivisions is an intent to deprive or defraud the owner of property. We are concerned with the fifth subsection, which reads:

'(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this act----

'Steals such property and shall be guilty of larceny.'

From a reading of § 3 in its entirety, it is obvious that larceny may be committed in a number of different ways. Although the state may not be able to prove that a defendant had physically removed certain property from the possession of the owner, the statute provides that, on proof of certain other acts (inter alia, aiding in concealing or withholding property known to have been wrongfully appropriated), the defendant 'Steals such property and shall be guilty of larceny.'

We hold that if one or more of the acts referred to in § 3(5) can be established, it is proper to charge under that subsection, even though evidence is presented that the defendant also performed the act of taking the property from the possession of the owner. There could be no more convincing evidence as to the element of knowledge that the property was wrongfully appropriated than proof that the defendant himself had stolen it. State v. Kruger, 1927, 145 Wash. 654, 261 P. 383.

The present case is an excellent illustration of the reason for and the desirability of such a rule. The state had evidence that certain plumbing supplies had been stolen, but no evidence of who took them from the owner's warehouse. It could prove that defendant Carden and appellant Rinkes had secreted or concealed the stolen supplies in a truck and, through appellant Thompson, had negotiated their sale to another party, and that Thompson was to furnish a bill of sale. Without evidence as to who actually took the plumbing supplies and with circumstantial evidence only to establish that Carden, Rinkes and Thompson knew that they were stolen, it would be natural to charge Carden and Rinkes under § 3(5) of chapter 165, Laws of 1915, p. 494, Rem.Rev.Stat., § 2601(5) (cf. RCW 9.54.010(5)), and Thompson, as having aided and abetted them, under § 8 of chaper 249, Laws of 1909, p. 892, Rem.Rev.Stat., § 2260 (cf. RCW 9.01.030).

Carden later confessed that he and Rinkes had taken the plumbing supplies from the warehouse of the owner, but Rinkes made no such admission and went to trial on a plea of 'Not guilty.' On the basis of the Carden confession, the state could have elected to charge Carden and Rinkes with the actual taking of the plumbing supplies under § 3(1), chapter 165, Laws of 1915, p. 493, Rem.Rev.Stat. § 2601(1) (cf. RCW 9.54.010(1)), but if it had done so it would have been dependent upon the jury's believing Carden (or, if he had repudiated the confession at the trial--and such things sometimes happen--the state would have been dependent upon the jury's finding that the Carden confession was not obtained by coercion and that it contained, the truth). Contrary to appellant Rinkes' contention, the state was not under compulsion to charge a taking merely because it had a witness who would testify that Rinkes had actually taken the property from the possession of the owner. The testimony of the taking in no way precluded a conviction of larceny based upon concealing and withholding property known to the defendants to have been stolen.

The appeal of defendant Thompson, charged with aiding and abetting Rinkes and Carden, is dependent upon Rinkes' appeal. If Rinkes was properly charged and convicted, it follows that Thompson was properly charged with aiding and abetting.

Finding no merit in the technicalities urged upon us, we affirm the judgment and sentence as to each of the appellants, Rinkes and Thompson.

MALLERY, FINLEY, WEAVER and OTT, JJ., concur.

FOSTER, Justice.

I concur in the result.

DONWORTH, Justice (dissenting).

The state's evidence in this case showed that on July 2, 1955, appellant Rinkes and defendant William P. Carden forcibly broke into and entered the premises of the Farwest Plumbing Supply in Seattle, and stole a substantial quantity of plumbing fixtures, which they hauled away in a rented truck. The next morning, with the help of appellant Thompson, they attempted to sell the stolen goods to another plumbing supply company. On July 5, 1955, before any payment had been made to them by the latter company, all three parties (appellants and Carden) were arrested.

The question on appeal is whether appellant Rinkes, on this evidence, was lawfully convicted under an information which charged that he and Carden,

'* * * on or about the 2nd day of July, 1955, knowing the same to have been stolen with intent to deprive and defraud the owner thereof, willfully, unlawfully and feloniously did secrete, withhold and appropriate certain personal property * * *' (Italics mine.)

Appellant Rinkes contends (a) that there was a failure of proof, and (b) that the information does not charge a crime.

The pertinent sections of the larceny statutes, Laws of 1915, chapter 165, § 3 (cf. RCW 9.54.010) read as follows:

'Every person who, with intent to deprive or defraud the owner thereof----

'(1) Shall take, lead or drive away the property of another; or * * *

'(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this act----

'Steals such property and shall be guilty of larceny.' (Italics mine.)

It is obvious that the evidence presented to the jury was, if believed, sufficient to prove the commission of the crime of grand larceny under subdivision (1) of RCW 9.54.010. The information, however, did not charge appellant with having committed larceny as defined by subdivision (1) but, as the state conceded, the charge was based upon subdivision (5).

In his brief, appellant Rinkes argues that subdivision (5) is the 'Receiving Stolen Property' section of the statute, and that, since the...