State v. Nelson
| Decision Date | 31 October 1963 |
| Docket Number | No. 36482,36482 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Henry Stephen NELSON, Appellant. |
Lande & Eide, Donald A. Eide, Kent, for appellant.
Charles O. Carroll, Pros. Atty., James S. Munn. Deputy Pros. Atty., Seattle, for respondent.
Defendant stands convicted of taking a motor vehicle without permission of the owner or person entitled to possession thereof, a violation of RCW 9.54.020. 1
Upon appeal defendant assigns error to the denial of his motion to dismiss at the conclusion of the state's case and to the trial court's refusal to give a proposed instruction.
Defendant's first assignment of error, the denial of his motion to dismiss, is without merit for two reasons.
First, defendant waived his motion. Upon denial of the motion, at the conclusion of the state's case in chief, defendant presented evidence upon his own behalf. He did not renew his motion at the close of all of the evidence. He cannot now predicate error upon the trial court's denial of such motion. State v. Goldstein, 58 Wash.2d 155, 361 P.2d 639; State v. Thomas, 52 Wash.2d 255, 324 P.2d 821; State v. Bates, 52 Wash.2d 207, 324 P.2d 810; State v. Emmanuel, 42 Wash.2d 799, 259 P.2d 845; State v. Dildine, 41 Wash.2d 614, 250 P.2d 951.
Second, the motion was properly denied by the trial court. The basis of defendant's challenge to the sufficiency of the state's evidence was that the state, in not producing evidence of ownership and lack of permissive use through the testimony of the legal or registered owner of the vehicle taken, had failed to eatablish an essential element of the crime charged. The state did, however, introduce the testimony of a Mr. Dunham, who testified that he had agreed to purchase the automobile in question from his employer, a Mr. Crotty; that he was to pay for the car at a later date; that he had the keys, was entitled to possession, and had custody of the vehicle; and that he had never given defendant permission to take the vehicle.
RCW 9.01.010 defines an owner, within the contemplation of the criminal code, as follows:
'(16) Any person shall be deemed an 'owner' of any property who has a general or special property in the whole or any part thereof, or lawful possession thereof, either actual or constructive.'
RCW 9.54.020, defining the offense here involved, provides, inter alia:
'Every person who shall without the permission of the owner or person entitled to the possession thereof intentionally take or drive away any automobile * * * the property of another, * * *.'
The offense of taking another's automobile without permission is similar to the crime of larceny, in the sense that both offenses involve the wrongful taking of another's property. It is, however, a separate statutory offense, distinguishable from larceny. State v. Daniels, 119 Wash. 557, 205 P. 1054; State v. Phillips, 179 Wash. 607, 38 P.2d 372; In re Arquette v. Schneckloth, 56 Wash.2d 178, 351 P.2d 921. The gist of larceny is wrongful taking with an intent to permanently deprive another of his property. The gist of the statutory offense is the intentional taking or driving away of the automobile of another without permission. Intent to permanently deprive is not an element.
This state, in company with others throughout the nation, enacted the 'joy riding' statute, as it has been called, to avoid the necessity of proving a larcenous taking. Proof of title or ownership of the property unlawfully taken is not an essential ingredient in the prima facie establishment of the crime of larceny. State v. Holt, 52 Wash.2d 195, 324 P.2d 793. Likewise, the title or specific ownership of a wrongfully taken automobile is not, by the statute or by judicial decision, made an essential factor in the prima facie establishment of the 'joy riding' offense. State v Shoemaker, 96 Ohio St. 570, 117 N.E. 958. It is sufficient to show that the automobile taken did not belong to the appropriator, and that it was intentionally taken from and without permission of the person entitled to its possession at the time of the taking. Ownership, right to possession, or permission to use by the accused may be asserted as a defense.
In the instant case, the testimony of Mr. Dunham, accepted as true, established his custody and possession of the automobile at the time of its taking, and defendant's impermissive use. It supports the trial court's denial of defendant's motion.
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State v. Blair
...willful attempt to withhold competent testimony." State v. Baker, 56 Wash.2d 846, 859-60, 355 P.2d 806 (1960); see State v. Nelson, 63 Wash.2d 188, 191-92, 386 P.2d 142 (1963). Defendant has argued that this requirement is not satisfied here because there is no evidence of willful However, ......
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State v. Davis, 39376
...testimony. Wright v. Safeway Stores, Inc., 7 Wash.2d 341, 109 P.2d 542 (1941), 135 A.L.R. 1367. * * * See, also, State v. Nelson, 63 Wash.2d 188, 386 P.2d 142 (1963). The holdings in these cases, however, do not mean, as the state seems to imply, that in order to obtain the benefit of the m......
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State v. Wait, 1462--I
...an essential element of the offense proscribed by RCW 9.54.020, State v. Saylors, 70 Wash.2d 7, 422 P.2d 477 (1966); State v. Nelson, 63 Wash.2d 188, 386 P.2d 142 (1963), but neither is it an essential element of 18 U.S.C. § 2312, United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.......
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State v. Solomon
...the time of the taking; ownership, right to possession or permission to use may be asserted as an affirmative defense. State v. Nelson, 63 Wash.2d 188, 386 P.2d 142 (1963). Finally, appellant asserts that the evidence was not sufficient to support the trial court's findings of guilt. There ......
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Nonproduction of Witnesses as Deliberative Evidence
...5.01 (1967). 138. Id. § 5.01 (comment) at 33-34. As to the Washington situation in general, see, e.g., State v. Nelson, 63 Wash. 2d 188, 386 P.2d 142 (1963); State v. Baker, 56 Wash. 2d 846, 355 P.2d 806 (1960); Wright v. Safeway Stores, Inc., 7 Wash. 2d 341, 109 P.2d 542 (1941). As to the ......