State v. Keelen
| Decision Date | 10 January 1922 |
| Citation | 103 Or. 172,203 P. 306 |
| Parties | STATE v. KEELEN. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Union County; J. W. Knowles, Judge.
T. J Keelen was convicted of larceny, and he appeals. Reversed and remanded.
The defendant was jointly indicted with one Dooley and charged with the larceny of one Ford automobile, the personal property of George Robertson. As a result of a separate trial, the defendant, Keelen, was found guilty and judgment of conviction entered against him, from which he has appealed.
At the trial it appeared that George Robertson purchased the car from M. J. Goss about November 5, 1920. Robertson is a laboring man, and had come to La Grande a few days before he purchased the automobile. There he met Dooley, who was jointly indicted with the defendant, having had a slight acquaintance with him previously. Dooley was living and "batching" in a shack upon the outskirts of La Grande. Robertson occupied the shack with Dooley during the time that he was in La Grande. They "batched" there; Robertson furnishing most, if not all, of the provisions, and in addition Robertson advanced Dooley some money. Dooley was without funds, while Robertson had about $300 on deposit in one of the banks at La Grande after purchasing the automobile.
Robertson was unable to drive the car, so Dooley drove the same with Robertson's consent. It was the intention of Robertson to drive from La Grande to Portland, and it was the understanding of the parties that Dooley would operate the car upon that journey. Before Robertson was prepared to start to Portland, a heavy snow fell in the Blue Mountains, and the contemplated trip to Portland was abandoned. On November 27th Robertson left La Grande for Portland and had Dooley drive him to Hilgard. When they reached Hilgard, Robertson directed Dooley to return the car to Hilton's garage, in La Grande, where Robertson had been keeping it. Pursuant to that direction, Dooley did place the car in Hilton's garage immediately upon his return to that city the same evening. Those in charge of Hilton's garage placed a tag upon the automobile and inscribed Dooley's name thereon, with the date the car was left there.
On December 1st Robertson had a firm of attorneys in Portland write to M. J. Goss, asking Goss to see if Dooley had placed the car in storage, and, if so, with whom he had placed it and further directed Goss, in case Dooley had not placed the car in storage, to store the same and see that it was kept there until Robertson should call for it, and not let any one use or run the car without his permission. Pursuant to these directions, Goss ascertained that the car was stored at Hilton's garage and conveyed to the latter the directions that Robertson had given him. Hilton's garage, however failed to remove or change the tag they had theretofore placed upon the automobile.
The defendant, Keelen, conducts an oil and gasoline filling station in La Grande, known as the Empire filling station. He formed a slight acquaintance with Robertson before the latter left for Portland in November, and had seen Robertson and Dooley riding about in the car, Dooley driving. They had purchased gasoline at his filling station a few times.
Some time in February, 1921, Dooley commenced to occupy a room at Keelen's house and worked about the filling station, and later he roomed and boarded with Keelen. In the latter part of March, 1921, Dooley went to Hilton's garage in company with a deputy sheriff, and took Robertson's automobile therefrom, paid the storage charges thereon and drove the same to the Empire filling station. Dooley professed to require the presence of the deputy sheriff in order that he might drive the car from Hilton's garage to the Empire filling station without danger of being arrested because of the absence of a 1921 auto license. Dooley had not taken the car out of Hilton's garage after placing the same in storage on November 27, 1920, and had not attempted to do so. Immediately after Dooley took the car to the Empire filling station, a tag was placed thereon by defendant, announcing that the car was for sale at a price of $275. The defendant had no facilities for housing cars at the filling station, so the car remained outside from the time Dooley took it there until it was sold on April 13, 1921. On that date defendant sold the car to R. W. Teeters, a train dispatcher, residing at La Grande, for the sum of $275. The record does not disclose what defendant did with the proceeds of the sale although he intimated that he paid the same to Dooley.
Robertson returned to La Grande in May, 1921, and, upon finding his car gone, he made inquiries to ascertain its whereabouts, and enlisted the aid of the sheriff and others, including M. J Goss, from whom he purchased the car. When inquiry concerning the car was made of defendant he asserted that the car belonged to Dooley; that he was present and aided in a settlement between Dooley and Robertson, wherein Robertson had transferred his interest in the car to Dooley, at which time Dooley had paid Robertson something like $85 in cash and made good a check that Robertson had drawn upon a bank where he had no funds; that he did not know to whom he had sold the car, and threatened that if Robertson pressed his claim he would report him to the district attorney for prosecution upon a charge of "bootlegging" and operating a still. Defendant also stated that a man by the name of Charles Lombard (a fictitious character) was a witness to the settlement and the transfer of the automobile to Dooley by Robertson. Later, when Robertson instituted a replevin suit to recover the automobile from Teeters, Keelen insisted that the automobile described in the replevin papers was not the one sold by him to Teeters; that the numbers were different. It appeared in evidence that, when Goss was making the transfer of the automobile to Roberston, Dooley read to Goss the motor and serial numbers that were placed in the bill of sale by Goss, and in doing so gave the wrong figures; that Robertson had ample funds in the bank to cover all checks drawn by him; and that there was no foundation to the accusation made by defendant that Robertson was a "bootlegger" or operating a still.
R. J. Green and Jno. S. Hodgin, both of La Grande, for appellant.
Ed. Wright, Dist. Atty., of La Grande (I. H. Van Winkle, Atty. Gen., and Ivanhoe & Ringo, of La Grande, on the brief), for the State.
McCOURT, J. (after stating the facts as above).
Defendant assigns as error the action of the court in overruling his motion to require the state to make an election of the act that the state claimed constituted "the act of larceny or felonious taking, * * * whether the time the car was turned over to Dooley near Hilgard, or the time it was taken from Hilton's garage, or at the time it was sold by Dooley to Teeters." Defendant's motion was made after the statement of the prosecuting attorney to the jury had been made and before any testimony was taken, and was based upon the rule that in criminal actions the prosecution is compelled and required to prove some particular act constituting the crime and rely upon the same for a conviction. State v. Eggleston, 45 Or. 346, 358, 77 P. 738; State v. Coss, 53 Or. 462, 467, 101 P. 193; State v. Hardin, 63 Or. 305, 308, 127 P. 789.
Whether in any case the court should compel the prosecution to elect the transaction upon which it will reply for conviction is largely a matter of judicial discretion. The court, upon seasonable application, should compel an election when it appears that, if the application is denied, the defendant will be prejudiced or he will be prevented from properly making his defense. Bishop's New Criminal Procedure, vol. 1, §§ 454, 459-462; State v. Hardin, 63 Or. 305, 308, 127 P. 789.
Defendant's motion to elect was made before any evidence had been introduced in the case, and, so far as appeared from the opening statement of the attorney for the state, the prosecution intended to rely upon the taking of the car from Hilton's garage as the transaction constituting the larceny charged in the indictment. It also appeared that the other matters referred to in the statement were collateral thereto, and that those transpiring before the car was taken from Hilton's garage would be depended upon to show the nonconsent of the owner of the car to the taking, while those transpiring thereafter would be relied upon in part to show the relation of the defendant to Dooley. The situation presented did not require the court to compel the state to elect, and no error was committed in denying defendant's motion.
Defendant requested, and the court refused to give, the following instruction:
"I instruct you that, if you find from the evidence that the said George Robertson was the sole owner of the said automobile, and that he intrusted and delivered to the said C. E. Dooley the said automobile to be safely kept by him, and the said C. E. Dooley retained the possession thereof, and placed the same in the custody of a garage, claiming the right to possession, paying the garage fees, and that the same never passed from his possession until he delivered the same to the defendant T. J. Keelen to sell, and that the defendant T. J. Keelen sold the same and gave the price to the defendant C. E. Dooley, then I instruct you that under the indictment in this cause there was no trespass, and it will be your duty to return a verdict of not guilty."
By the foregoing request and by requests made to direct the jury to acquit, defendant pressed upon the court the contention that Dooley was a bailee of the automobile within the meaning of the criminal statutes, and as the evidence showed the absence of a trespass by Dooley in obtaining...
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