State v. Chumley

• Decision Date: 19 November 1940
• Docket Number: 45182.
• Citation: 294 N.W. 764,229 Iowa 579
• Parties: STATE v. CHUMLEY.
• Court: Iowa Supreme Court

294 N.W. 764

229 Iowa 579

STATE v. CHUMLEY.

No. 45182.

Supreme Court of Iowa.

November 19, 1940

Appeal from District Court, Black Hawk County; Geo. W. Wood, Judge.

Defendant was charged with transferring possession of a stolen motor vehicle knowing, or having reason to believe, that the same had been stolen. Upon a verdict of guilty, sentence was imposed. Defendant appeals.

Affirmed.

RICHARDS, C. J., dissenting.

McCoy & Beecher, of Waterloo, for appellant.

Fred D Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Burr C. Towne, Co. Atty., of Waterloo, for appellee.

MILLER Justice.

Appellant was charged by a county attorney's information, which asserted as follows: " The said Ira Chumley, on or about the 10th day of May, A. D. 1938, in the County of Black Hawk and State of Iowa, did with intent to pass title to a 1935 Ford V-8 Two-door Motor Vehicle stolen from Allen Wichman and knowing or having reason to believe the same had been stolen, did receive and did transfer possession of the same to one Roberta Worley."

In appellant's brief and argument, the statement of facts concisely presents the disputed question of fact for our determination by the following language:

" On or about the 10th to the 15th day of October, 1935, one Allen Wichman of Hadar, Nebraska, purchased a 1935 Ford automobile V-8 coach, gunmetal color. Mr. Wichman operated a dairy route in Hadar, Nebraska, and used the Ford automobile in his business as a dairy-man. About two o'clock A. M. on December 26, 1935, Mr. Wichman drove his Ford into his garage at his home in Hadar, Nebraska, did not lock the car, left his keys in the automobile, left the garage door open and retired for the remainder of the night. * * *

Sometime between four o'clock and five o'clock on the morning of December 26, 1935, one Cecil Paulsen, a self-confessed thief of much experience and with a long criminal record, stole the Wichman car from the garage at the Wichman home in Hadar, Nebraska, where it had been placed in the early morning by Mr. Wichman, and drove the car to Waterloo, Iowa. * * *

The record is undisputed that the automobile transferred to Roberta Worley was not the same car in its parts that was stolen from Allen Wichman at Hadar, Nebraska, in that the horn, the bell housing and the wheels on the car transferred to Roberta Worley were not the horn, bell housing and wheels that were on the car stolen from Allen Wichman at Hadar, Nebraska. The evidence shows that the bell housing on the car transferred to Roberta Worley was the bell housing that was on the Nine car sold to the Chumley Auto Market by Ted McGreevey of Des Moines. The evidence did not disclose where the wheels and the horn that were on the car transferred to Roberta Worley came from but it was admitted that the wheels and horn on the car transferred to Roberta Worley were not the wheels and horn that were on the car stolen from Allen Wichman."

There was evidence from which the jury was warranted in believing that the appellant knew or had reason to believe that the car in its original condition had been stolen from Allen Wichman. The gist of appellant's contention in reference to the facts in this case is limited to the proposition that, because certain parts had been changed, including the horn, bell housing and wheels, the identity of the automobile, as a motor vehicle, had been destroyed and, therefore, the car which was transferred by appellant to Roberta Worley was not the car that had been stolen from Allen Wichman.

Appellant made a motion for a directed verdict, which was overruled. The principal basis for the motion was the assertion above referred to, namely, that, because of the substitution of parts, the car which appellant transferred was not the same car that had been stolen. Appellant also requested two instructions, identified as requested Instructions 1 and 2, whereby he sought to require the court to charge the jury that the state had the burden of proving that the automobile, stolen from Allen Wichman, was transferred in its entirety to Roberta Worley and that, if only a part of such automobile was transferred, appellant would be entitled to an acquittal. The court refused these instructions and gave Instruction 4, as follows:

" You are instructed that the burden is upon the State to establish beyond a reasonable doubt that the automobile claimed by the State to have been transferred by the defendant to Roberta Worley is the identical vehicle that was stolen from Allan Wichman.

You are further instructed that if you find that certain parts have been removed from or added to the automobile transferred to Roberta Worley this would not alone render it incapable of identification. And you are instructed that if the State has established beyond a reasonable doubt that the automobile stolen from Allan Wichman was later transferred to Roberta Worley, and at the time of such transfer the State has established that such changes as had been made on the Allan Wichman car did not render it incapable of identification as the car stolen from Allan Wichman and that the automobile transferred to Roberta Worley was substantially the car stolen from Allan Wichman, then the State has made a sufficient identification of the automobile as the identical car taken from Allan Wichman."

I.

Appellant's first proposition challenges the correctness of the ruling on the motion for directed verdict, the refusal to give requested Instructions 1 and 2 and the giving of Instruction 4. We find no merit in appellant's contention.

The statutes applicable herein are Sections 109 and 110 of Chapter 134 of the Acts of the 47th G. A., which have been published as Sections 5006.06 and 5006.07 of the Code 1939. They provide as follows:

" 5006.06 Receiving or transferring stolen vehicle. Any person who, with intent to procure or pass title to a vehicle which he knows or has reason to believe has been stolen or unlawfully taken, receives, or transfers possession of the same from or to another, or who has in his possession any vehicle which he knows or has reason to believe has been stolen or unlawfully taken, and who is not an officer of the law engaged at the time in the performance of his duty as such officer, is guilty of a felony and shall be punished as provided in section 5036.02."

" 5006.07 Injuring or tampering with vehicle. Any person who either individually or in association with one or more other persons wilfully injures or tampers with any vehicle or breaks or removes any part or parts of or from a vehicle without the consent of the owner is guilty of a misdemeanor punishable as provided in section 5036.01."

The statutes above quoted supersede Section 5092 of the Code 1935, which read as follows: " 5092. Disposal of stolen vehicle. Any person who shall receive, conceal, store, barter, sell, or dispose of any motor vehicle or any part thereof knowing or having reason to believe it has been stolen, shall be punished by imprisonment in the penitentiary not more than ten years or by fine of not more than one thousand dollars, or by both such fine and imprisonment."

The definition of a motor vehicle is contained in Section 1 of Chapter 134, Acts of the 47th G. A., which now appears as paragraph 2 of Section 5000.01 of the Code 1939.

Appellant contends that, when the legislature repealed Section 5092 of the Code 1935, and adopted in lieu thereof Section 5006.06 of the Code 1939, it eliminated the words following motor vehicle " or any part thereof" thereby intending that, for one to be guilty under that section, the automobile transferred had to be the same automobile in its entirety before the offense could be said to have been committed. Appellant also contends that, under the definition of a motor vehicle contained in Paragraph 2 of Section 5000.01 of the Code 1939, when a part is removed from a stolen automobile, which makes it incapable of being self-propelled, such as the removal of a wheel, it ceases to be a motor vehicle and becomes only a part of one and, therefore, when a different wheel is substituted for one that has been removed and the vehicle as thus tampered with is transferred, the transfer is in reference to a part of the stolen vehicle and not a transfer of the vehicle itself.

In other words, it is the contention of appellant that we, in interpreting the statute, must attribute to the legislature an intention to permit one, who undertakes to transfer a stolen motor vehicle, to avoid the penalty of being guilty of a felony by changing a wheel on the car. By that act he then can be guilty only of a misdemeanor under appellant's contention. In view of the fact that it is common knowledge that parts are often substituted on stolen cars before they are transferred, primarily to make it difficult to identify them, we are unwilling to attribute any such intention to the legislature and are abidingly convinced that we have neither the license nor authority, even were we willing, to so emasculate this legislation through the guise of interpretation. We are satisfied that the court's Instruction 4 gave to appellant everything to which he was reasonably entitled under the record herein. Accordingly, we find no merit in the contention that the court erred in overruling the motion for directed verdict, refusing requested Instructions 1 and 2 and in giving Instruction 4. There was no error in these particulars.

II.

Appellant's second proposition asserts that there is a fatal variance between the allegations of the information and the proof. The basis for this assertion is the same contention disposed of in Division I of this opinion. For the reasons there stated, we find no merit in appellant's contention.

III.

Appellant's third proposition challenges the court's Instruction 3...