State v. Hauck
| Decision Date | 20 July 1973 |
| Docket Number | No. 38889,38889 |
| Citation | 190 Neb. 534,209 N.W.2d 580,60 A.L.R.3d 1286 |
| Parties | , 60 A.L.R.3d 1286 STATE of Nebraska, Appellee, v. Michael D. HAUCK, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In this state all public offenses are statutory; no act is criminal unless the Legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.
2. The term 'steal' as used in the criminal code includes all the elements of larceny at common law.
3. Evidence that the defendant changed the price tag on a carton containing a rifle scope on a display shelf in a self service store, and openly and without any attempt to conceal or hide the carton, picked it up and carried it to the checkout counter and offered to pay for it, is insufficient to establish the essential elements of larceny necessary to sustain a conviction for stealing the rifle scope.
G. Randolph Reed, Mitchell, for appellant.
George A. Sommer, Scottsbluff, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.
The defendant was charged with stealing a rifle scope worth under $20 in violation of a municipal ordinance of the City of Scottsbluff. The case was tried to the District Court without a jury upon a stipulation of facts. The defendant was found guilty and sentenced to pay a fine of $100.
Section 14--201 of the municipal code of the City of Scottsbluff provides:
It was stipulated that the following facts are true:
'1. That on August 17, 1972 the Defendant herein, MICHAEL D. HAUCK, was present at the Sporting Goods Department of Gibsons Discount Center, a self service store, located within the corporate limits of the City of Scottsbluff, Scotts Bluff County, Nebraska;
'2. That Defendant, at the above time and place, at a shelf where rifle scopes were on display, exchanged price tag stickers without the consent of the owner between two cartons containing rifle scopes, one sticker being marked $9.87 and the other sticker being marked $19.97;
'3. That Defendant then picked up the carton on which he had removed the $19.97 sticker and on which he had placed the $9.87 sticker and carried such carton in his hand and walked to the cash register counter in the rear sporting goods section of the store;
'4. That Defendant thereupon placed the carton with the exchanged sticker marked $9.87 on the cash register counter and offered to make payment for it whereupon Defendant was apprehended and detained by the store personnel who had observed his above described action;
'5. That at no time did the Defendant conceal or hide the rifle scope carton which he carried from the display counter to the cash register counter and such carton was at all times in view of store personnel.
'6. That the value of the rifle scope was under $20.00 and the owner of this scope was Gibsons Discount Center.
The basic issue on this appeal is whether the facts stipulated are sufficient to establish the defendant's guilt of the crime of larceny. The issue turns on the determination of whether or not the removal of a carton from the shelf of a self service without any concealment and taking it to the checkout counter and offering to pay for it constitutes a sufficient taking asportation to support a conviction for larceny. The effect of exchanging price tag stickers in such a situation must also be a crucial part of the determination.
In this State all public offenses are statutory; no act is criminal unless the Legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law. There are no common law crimes in this State and we only resort to common law definitions where general terms are used to designate crime. See State v. Coomes, 170 Neb. 298, 102 N.W.2d 454.
The ordinance involved here makes it unlawful 'to steal' money or property. State statutes dealing with grand and petit larceny also use the word 'steal' and this court has consistently held that the term 'steal' as used in the criminal code includes all the elements of larceny at common law. Barnes v. State, 40 Neb. 545, 59 N.W. 125.
The necessary elements of larceny which are critical here require that the property must be taken and carried away with the intent to steal it and it must be without the consent of the owner. See, Nixon v. State, 89 Neb. 109, 130 N.W. 1049; Barnes v. State, Supra.
The determination of what constitutes a taking and carrying away of property with the intent to permanently deprive the owner of possession and whether that taking is with or without the consent of the owner involves issues of intent which are often difficult of determination. Where merchandise in a store is involved, those issues are vitally affected if the store is operated on a self service basis. The cases appear to be in agreement that in a self service store, where customers select and pick up articles to be paid for at the checkout counter, the mere picking up of an article in the display area does not constitute asportation. See Durphy v. United States, 235 A.2d 326 (D.C.App.1967).
Under the self service method of store operation, the owner of the property authorizes a conditional temporary possession by customers between the display area and the checkout counter, at least where the possession is not clearly adverse to that of the store. The cases indicate that concealing the goods in a fashion sufficient to place them under the complete and exclusive control of the defendant may be sufficient asportation to constitute larceny, no matter what part of the store it occurs in. See Groomes v. United States, 155 A.2d 73 (D.C.Mun.App., 1959). In any event, carrying of concealed articles past the checkout stand of a self service store constitutes a sufficient asportation to support a conviction for larceny. See People v. Thompson, 158 Cal.App.2d 320, 322 P.2d 489.
In the absence of concealment we have found no case, nor have we been cited to any, which holds that openly carrying an article to the checkout counter of a self service store is sufficient to support a conviction for larceny, whether the price tag has been altered or not.
Under the facts stipulated here, the defendant not only carried the carton with the rifle scope to the checkout counter, but he offered to pay for it as well. It is quite obvious that he intended to purchase the scope but to pay only the lesser price shown on the changed price tag and by the misrepresentation to defraud the owner of a part of its value. Nevertheless, that is not larceny. The defendant was charged with stealing a...
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