State v. Olin

CourtCourt of Appeals of Idaho
Citation725 P.2d 801,111 Idaho 516
Docket NumberNo. 15753,15753
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Danny Lee OLIN, Defendant-Appellant.
Decision Date05 September 1986

Gregory C. Pittenger, Killen & Pittenger, McCall, for defendant-appellant.

Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.


Danny Lee Olin stands convicted by a jury of robbing a convenience store and of displaying a firearm while committing the crime. On appeal Olin presents three issues: (1) Does the evidence support the jury's determination that Olin displayed a "firearm" as defined by the applicable statute? (2) Does Idaho's robbery statute embody a common law element of specific intent permanently to deprive an owner of his property? (3) If the statute does contain such an element, should the trial judge's refusal to so instruct the jury be treated as harmless error? For reasons explained below, the judgment of conviction is affirmed by a majority of this Court.


At times pertinent here, I.C. § 19-2520 provided that a defendant convicted of an enumerated crime, such as robbery, would receive an "additional" sentence if the crime was committed while carrying, displaying, using, threatening to use, or attempting to use a firearm. The statute defined "firearm" as "any deadly weapon

Page 802

[111 Idaho 517] capable of ejecting or propelling one or more [projectiles] by the action of any explosive or combustible propellant, and includes unloaded firearms and firearms which are inoperable but can readily be rendered operable." In this case Olin has contended that the evidence was insufficient to show that the object he displayed was a "firearm," operable or readily rendered operable, as denoted by the statute. We disagree

Olin was arrested shortly after a robbery had been reported at the convenience store. A .44 magnum Smith & Wesson pistol, loaded with hollow-point bullets, was found in his vehicle. The pistol later was admitted in evidence at trial. A store clerk identified Olin as the robber and testified that he had pointed a gun toward her. She said the pistol in evidence "look[ed] like" the gun Olin had displayed. She further stated that Olin cocked the gun and threatened to "blow [her] head off" if she did not give him the money in a cash drawer. A police officer examined the pistol in evidence and testified that it appeared to be operable.

We have held that a jury may infer from circumstantial evidence that a weapon displayed during commission of a crime was a "firearm" within the meaning of I.C. § 19-2520. State v. Metzgar, 109 Idaho 732, 710 P.2d 642 (Ct.App.1985); State v. Stedtfeld, 108 Idaho 695, 701 P.2d 315 (Ct.App.1985). In this case we conclude that the circumstances were more than adequate to support an inference that Olin displayed a "firearm" during the incident at the convenience store.

The remaining issues on appeal concern the substantive charge of robbery. These issues have produced divergent views among members of our Court. In Parts II and III of this opinion, the author expounds the view that the trial judge failed to instruct the jury on a necessary element of robbery and that such error should not be deemed harmless. Chief Judge Walters, writing separately, states his belief that the jury was correctly instructed. Judge Swanstrom, also writing separately, takes the position that the jury instructions may have been deficient but that the error was harmless. Because Chief Judge Walters and Judge Swanstrom would uphold the jury's verdict, albeit for different reasons, their votes govern the outcome of this appeal. Accordingly, the judgment of conviction must be, and hereby is, affirmed. We now turn to the issues that have divided the Court.


The elements of robbery are deeply rooted in legal history. At common law, robbery was regarded as an "aggravated larceny." 1 2 W. LaFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.11, at 437 (1986) (hereinafter cited as LaFAVE & SCOTT). Robbery consisted of all elements of larceny plus two additional requirements: that the property be taken from the person or presence of another, and that the taking be accomplished by means of force or fear. 4 C. TORCIA, WHARTON'S CRIMINAL LAW § 469, at 39-40 (14th ed. 1980) (hereinafter cited as WHARTON).

Larceny, in turn, was defined at common law as the trespassory taking and carrying away, with felonious intent, of personal property belonging to another. 4 BLACKSTONE, COMMENTARIES 230 (hereinafter cited as BLACKSTONE). See also CLARK & MARSHALL, A TREATISE ON THE LAW OF CRIMES § 12.00, at 798 (1967) (hereinafter cited as CLARK &

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[111 Idaho 518] MARSHALL); 3 WHARTON § 354, at 298. Thus, larceny did not consist merely of a taking that was wrongful because of a trespass against the property rights of the victim; rather, larceny required that the taking also be accompanied by a "felonious" intent. J. BISHOP, CRIMINAL LAW § 840, at 638-39 (1923) (hereinafter cited as BISHOP). The word "felonious" in this context was a common law term of art particularly referring to an act done animo furandi --that is, with an intent to steal. 2 4 BLACKSTONE 232; LaFAVE & SCOTT § 8.5, at 357

The common law intent to steal was more than a general intent to take another's property, coupled with awareness that the taking was wrongful. The intent to steal was an additional, specific intent permanently to deprive the owner of his property. 3 Without this specific intent, a wrongful taking could be a trespass or a civil injury, but it could not be a common law larceny. 50 AM.JUR.2D Larceny § 36 (1970); WHARTON § 360, at 317. The point has been put concisely as follows:

One may take the chattel of another by trespass and with full knowledge of his trespass and still not be guilty of [larceny]....

... Needless to say, the intentionally unprivileged use of another's property is unlawful and antisocial, but it takes more than this to constitute the serious crime of larceny.

PERKINS & BOYCE 326-27 (footnotes omitted).

In sum, the "felonious" intent embodied in common law larceny went beyond a general intent to take property wrongfully. It was a specific intent to deprive the owner permanently of his property. This element of larceny came to the United States as part of our common law heritage and eventually was incorporated into Idaho's larceny statutes. From territorial days until the present decade, I.C. § 18-4601 and its predecessors defined larceny as the "felonious ... taking ... [of] the personal property of another." While these statutes were in effect, our Supreme Court repeatedly declared that a "felonious" taking required the specific intent permanently to deprive the owner of his property. E.g., State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980); State v. Jesser, 95 Idaho 43, 501 P.2d 727 (1972); State v. Hurst, 36 Idaho 156, 209 P. 724 (1922); State v. Riggs, 8 Idaho 630, 70 P. 947 (1902).

The definitional nexus between a "felonious" taking and the specific intent permanently to deprive was recognized by our Legislature when it recodified larceny as "theft" in 1981. See I.C. §§ 18-2401 to -2410. When enacting the "theft" statutes, the Legislature dropped the reference to a "felonious" taking but simultaneously inserted an explicit requirement of intent to deprive. "Deprive" was given a special definition as withholding property "permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost...." I.C. § 18-2402(3)(a). This language tracked prior court decisions interpreting permanent deprivation. See note 3, supra. Thus, the Legislature understood and perpetuated the historical meaning of a "felonious" taking in the common law.

As noted, common law robbery consisted of common law larceny plus aggravating circumstances. Consequently, it embodied all elements of larceny, including the specific

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[111 Idaho 519] intent permanently to deprive an owner of his property

The felonious intent to steal, or animus furandi, is as necessary to constitute robbery as it is to constitute larceny. The robber must have a fraudulent intent and must intend to deprive the owner permanently of his property.

CLARK & MARSHALL § 12.10, at 883 (emphasis added). "The intent to steal ... required for larceny is the same intent to steal (or, as it is sometimes called, intent to rob) needed for robbery." LaFAVE & SCOTT § 8.11, at 440 (footnote omitted). Other authorities on the common law have reached the same conclusion. See, e.g., BISHOP § 1162, at 862; PERKINS & BOYCE 343-45; 4 WHARTON § 469, at 39-46; 67 AM.JUR.2D Robbery § 17 (1985). 4

American statutes embodying the common law of robbery typically have not spelled out each incorporated element of common law larceny. Rather,

they define the crime of robbery in different ways, often in the somewhat undetailed language used by Blackstone, Hawkins, Hale and East in defining common-law robbery, e.g., "the felonious and violent taking of goods or money from the person of another by force or intimidation."

LaFAVE & SCOTT § 8.11, at 438 n. 6 (emphasis added). Idaho's robbery statute, I.C. § 18-6501, follows this pattern. Like our former larceny statute, the robbery statute dates back to the territorial era. It defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Emphasis added.)

The phrase "felonious taking" imparts a common law meaning to the robbery statute that coincides with the meaning ascribed to the former larceny statute. Both statutes are subject to the general rule that common law terminology will be given its common law meaning, unless a contrary legislative intent appears. E.g., Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975); Rogers v. Donovan, 268 Or. 24, 518 P.2d 1306 (1974). See ...

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