State v. Olds, 31713

Decision Date24 August 1951
Docket NumberNo. 31713,31713
Citation39 Wn.2d 258,235 P.2d 165
PartiesSTATE, v. OLDS et al.
CourtWashington Supreme Court

Tonkoff & Holst, Yakima, Steensland and Smith, Ellensburg, for appellants.

Henry W. Wager, W. R. Cole, Ellensburg, for respondent.

MALLERY, Justice.

The defendants were charged by information with the crime of grand larceny, as follows: 'They, the said Freta Lee Olds and Charles W. Tharp in the County of Kittitas, State of Washington, on or about the 11th day of October, 1950, did wilfully, unlawfully and feloniously take, steal, lead and drive away one red, white faced steer of the value of more than $25.00 in lawful money of the United States, the property of the West Fork Timber Company, a corporation, with intent to deprive and defraud the said West Fork Timber Company, a corporation thereof.'

On this charge, they were convicted and appeal therefrom to this court.

They were acquitted on a second count identical with the first, except as to the animal and its owner.

Since this case is decided on a pure question of law, no useful purpose would be served by setting out a summary of the testimony herein.

The pertinent parts of Rem.Rev.Stat. § 2601, with which we are here concerned, read as follows:

'Every person who, with intent to deprive or defraud the owner thereof----

'(1) Shall take, lead or drive away the property of another; or * * *.

'(4) Having received any property by reason of a mistake, shall with knowledge of such mistake secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; and * * *.

'Steals such property and shall be guilty of larceny.'

We held in State v. Smith, 2 Wash.2d 118, 98 P.2d 647, that the subdivisions of Rem.Rev.Stat. § 2601, defined separate and distinct offenses, rather than providing various ways in which the same offense could be committed, notwithstanding that the several offenses were all designated as larceny.

Obviously, the information is laid under subd. (1) of the statute. The crime therein defined differs from that in subd. (4) in that no evidence or permissible inference therefrom of asportation or original felonious intent is necessary under subd. (4) as it is under subd. (1). The two crimes are committed in different ways. Evidence that could sustain a charge under subd. (4) would not suffice for a crime charged under subd. (1).

The appellants assign as error the giving of the following instruction: 'The law of the State of Washington defining the offense of larceny insofar as it pertains to this case is as follows: Every person who, with intent to deprive or defraud the owner thereof, shall take, lead or drive away the property of another or, having received any property by reason of a mistake, shall with knowledge of such mistake, secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto, steals such property and shall be guilty of larceny. If the property be of the value of more than $25.00, the offense is grand larceny.'

It will be noted that this instruction includes the crimes defined in both subd. (1) and subd. (4), so that the jury was authorized to convict appellants, even though it was not satisfied as to the proof required under subd. (1), provided it was satisfied as to the crime defined in subd. (4). Notwithstanding, the appellants were not charged under subd. (4).

Assuming then, as we must, that the jury based its verdict upon the requirements of subd. (4), since it may very well have done so in fact, we are at once confronted with Art. I, § 22, of our state constitution, which provides, among other things 'In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause...

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41 cases
  • State v. Gehrke
    • United States
    • Washington Supreme Court
    • February 14, 2019
    ...article I, section 22 inherently limit when and whether the State may make midtrial amendments to its information. State v. Olds, 39 Wash.2d 258, 261, 235 P.2d 165 (1951) (holding that "a new count charging a different crime ... would contravene Art. I, § 22, of the state constitution"). Th......
  • State v. Schaffer
    • United States
    • Washington Supreme Court
    • February 4, 1993
    ...squarely holds such midtrial amendments are unconstitutional. Pelkey, 109 Wash.2d at 491, 487, 745 P.2d 854 (citing State v. Olds, 39 Wash.2d 258, 235 P.2d 165 (1951)). Nevertheless, the majority refuses to find Pelkey The first flaw in the majority's analysis is that it misconstrues Pelkey......
  • State v. Golladay
    • United States
    • Washington Supreme Court
    • May 28, 1970
    ...of criminal intent to deprive or defraud the owner of property at the time it comes into possession of the defendant. State v. Olds, 39 Wash.2d 258, 235 P.2d 165 (1951). The evidence, consequently, was totally insufficient to show a larceny under the first section of RCW The evidence shows ......
  • State v. Rosie, No. 27665-8-II (WA 5/25/2004)
    • United States
    • Washington Supreme Court
    • May 25, 2004
    ...cannot be tried for an offense not charged.' State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988); see also State v. Olds, 39 Wn.2d 258, 260-61, 235 P.2d 165 (1951). When an information alleges only one crime, it is constitutional error to instruct the jury on a different, uncharged c......
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