State v. Jesser

• Decision Date: 25 September 1972
• Docket Number: Nos. 10835,10836,s. 10835
• Citation: 501 P.2d 727,95 Idaho 43
• Parties: STATE of Idaho, Plaintiff-Respondent, v. George JESSER, Defendant-Appellant. STATE of Idaho, Plaintiff-Respondent, v. Tom GIBBS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 727

501 P.2d 727

95 Idaho 43

STATE of Idaho, Plaintiff-Respondent, v. George JESSER, Defendant-Appellant.

STATE of Idaho, Plaintiff-Respondent, v. Tom GIBBS, Defendant-Appellant.

Nos. 10835, 10836.

Supreme Court of Idaho.

Sept. 25, 1972.

Rayborn, Rayborn, Webb & Pike, Twin Falls, for defendants-appellants.

W. Anthony Park, Atty. Gen., C. Kent Taylor, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McQUADE, Chief Justice.

These consolidated appeals raise issues as to the evidence and distinctions among larceny, embezzlement and obtaining property under false pretenses. Our disposition of the issues today supersedes but retains the substance of a previous, unreported decision of this Court. Points emphasized by the parties on rehearing are elaborated.

I

At trial the State established that in April, 1969, the appellant Jesser offered by telephone to purchase barley from the complaining witness, Norman K. Sowards. Sowards accepted upon oral stipulation that Jesser would weight his truck empty on scales at the Arco Feed & Fertilizer Company in Arco before proceeding to Sowards' granary near Howe. Then, upon filling the truck with barley, Jesser was to return to Arco Feed for a second weighing. When the quantity of grain in the truck was computed, Jesser was to pay Sowards by leaving a check for him at the weigh station.

On April 28, 1969, Jesser drove a green GMC truck ¹ to Sowards' granary. Sowards' employee observed Jesser fill the truck with such a quantity of grain that when a canvas was drawn over the load prior to departing, it was 'rounded up' at the middle the full length of the truck bed. Subsequently, a motorist traveling a road to Arco saw two unidentified men shoveling grain from a GMC truck, matching the description of Jesser's vehicle, into a smaller Ford pickup. The same motorist later saw the GMC truck on the scales at Arco Feed. While the GMC truck was being weighed Jesser told an Arco Feed employee, as the employee recalled at trial, 'that this barley was real light barley, and that he couldn't get a load.' Jesser did not mention previously transferring any of the grain to another vehicle.

On May 1, Jesser reappeared at the granary in the green GMC truck, accompanied by the appellant Gibbs. From a field one-eighth of a mile away, Sowards watched them fill the truck, again with such a quantity of grain that the load was 'rounded out' under the canvas. Sowards' employee was also present and again noted the fullness of the load. When Jesser and Gibbs departed, Sowards and his employee followed in Sowards' car until they found the green GMC truck parked at a cafe in Howe. Sowards then contacted the county sheriff, drove to the Arco airport, took off in his airplane, and flew back over the highway between Arco and Howe.

From the air Sowards observed the green GMC truck leave the cafe in Howe and proceed down the highway toward Arco. Flying ahead, Sowards noticed that a truck with a red cab had parked in a gravel pit near the highway. When the green truck reached the gravel pit, it turned in and stopped parallel to the redcabbed truck. Two unidentified men drew back the canvases on both trucks and transferred some of the grain from the green truck to the truck with the red cab. When this operation was completed the county sheriff, who had encountered the green GMC truck on the highway and had watched it pull into the gravel pit, noticed that the load of grain in the green GMC was 'noticeably smaller' when it reappeared on the highway. After the truck with the red cab, a Ford pickup, re-entered the highway, the sheriff collected samples of spilled barley grain at the gravel pit and followed the two trucks into Arco. When he arrived in town the sheriff, and other law enforcement officers, located the red Ford pickup with grain in its bed, parked against a fence behind a cafe.

During this time Sowards flew back to Arco, landed his plane, and proceeded to the Arco Feed weigh station, When Jesser arrived in the green GMC truck, the sagging canvas continued to indicate a reduced load of grain. As the GMC truck was weighed, Jesser told Sowards the grain was too light to permit a fuller load. He did not disclose the previous transfer of grain to the Ford pickup.

Shortly after departing the weigh station the GMC truck was halted a mile outside town by law enforcement officials, who now found both Jesser and Gibbs inside. The two were placed under arrest and advised of their rights. Jesser told the officers that the grain had been transferred to avoid an illegal overload of the GMC truck. He stated that he did not reveal the transfer of grain to Sowards because he considered himself the owner of the grain and therefore free to handle it as he desired. He termed the failure to weigh and pay for the transferred grain 'a mistake.' Gibbs, when questioned about the April 28 incident, stated that he did not believe the grain had been weighed before the transfer.

The two trucks were taken into police custody and weighed the next day. The red Ford pickup was determined to contain approximately 3,580 pounds of grain. The State did not, in its case-in-chief, establish the specific quantity of grain transferred on April 28th. However, the State produced evidence of spilled barley where the motorist had seen two men shoveling grain from one truck to another on April 28th, confirming that at least some grain had been transferred. Sowards also testified that he received checks from Jesser only for the grain weighed in the green GMC truck each day.

Jesser and Gibbs both were charged with two counts of petit larceny, ² arising from the events on April 28 and May 1, respectively. Following conviction in justice's court and trial de novo in district court, a jury of six returned verdicts of guilty as to both appellants on each count. ³ Judgments of conviction in district court were entered accordingly, and these appeals followed. Appellants' seven assignments of error challenge the sufficiency of evidence to support the convictions, attack the scope of inquiry allowed the State in cross-examining appellant Jesser, and argue that the appellants' conduct on April 28 or May 1 did not constitute larceny under the law.

II

The factual narrative set out in Part I represents the evidence adduced during the State's case-in-chief. When the State rested, appellants moved unsuccessfully for directed verdicts of acquittal. Error is assigned to the district court's denial of the motions. These motions were based in part on the assertion that appellants' conduct was not larceny, a point we will discuss later. The motions also brought in question the sufficiency of the State's evidence. Before reviewing these motions particularly, it must be borne in mind that no statute authorizes a directed verdict of acquittal, although the legislature has authorized advisory instructions to this effect. ⁴ This Court explained in State v. McCarty: ⁵

'At common law the trial judge had the same right to give a peremptory instruction in a criminal proceeding that he had in a civil action. (Authority cited.) The effect of C.S. § 8963, (now I.C. § 19-2123) is to limit this power, not to abolish it. Where there is no evidence on which to base a verdict of guilty, it is still the right and duty of the trial court, upon proper motion, to direct an acquittal. * * * Where, however, the evidence is merely insufficient, the court must then advise the jury to acquit, which advice the jury is not bound to follow.' (Emphasis supplied.)

In Idaho, therefore, a motion for directed verdict of acquittal must be granted only when there is 'no evidence' upon which to base a verdict of guilt. Under this rule, the directed verdict has been limited to cases involving a 'total lack of evidence.' ⁶ Where the record reveals 'some' evidence upon which to base a verdict of guilt, the trial court may only, in its discretion, give an advisory instruction to acquit. ⁷

Appellants maintain that their motions for directed verdicts of acquittal on Count I should have been granted because the State failed to prove that the grain transferred to the pickup on April 28 was not weighed. The State placed in evidence Gibbs' remark to law enforcement officers, that he did not believe the grain had been weighed before it was transferred. Moreover, Sowards testified that he received direct payment from Jesser only for the grain actually weighed in the green GMC truck. ⁸ From this evidence the jury reasonably could infer that the grain transferred on April 28 was not weighed. The motions for directed verdicts of acquittal on Count I properly were denied.

Appellant Gibbs further contends, in support of his motion, that the State failed to establish his participation in the transfer of grain on April 28 or May 1. With respect to the second day, the State adduced evidence that Gibbs was with Jesser in the green GMC truck when the barley was loaded at Sowards' granary and when the GMC truck was halted by law enforcement officers outside Arco. Sowards further testified that he observed two men transferring grain at the gravel pit. Similarly, the motorist who saw the grain transfer on April 28 testified that two men were involved. After his arrest, Gibbs linked himself to the April 28th events by stating that he did not believe the grain had been weighed before it was transferred on that day. In light of this evidence, Gibbs' motion for directed verdict of acquittal properly was denied.

III

Following disposition of the motions for directed verdicts of acquittal, appellant Jesser testified for the defense. On direct examination he recalled the details of his agreement with Sowards and restated his contention that the transfers of grain were intended simply to avoid violation of road weight restrictions. On cross-examination Jesser testified over repeated objections of defense counsel that, among other things, Gibbs drove the pickup truck into which grain was transferred on April...