State v. Olson

• Decision Date: 09 March 1922
• Docket Number: 3742
• Citation: 205 P. 337,59 Utah 549
• Court: Utah Supreme Court
• Parties: STATE v. OLSON et al

205 P. 337

59 Utah 549

STATE v. OLSON et al

No. 3742

Supreme Court of Utah

March 9, 1922

Appeal from District Court, Third District, Salt Lake County; Elias Hansen, Judge.

H. L Olson and another were charged with larceny of an automobile. From judgment dismissing the information and discharging the named defendant at the close of the State's evidence, the State appeals.

REVERSED.

Harvey H. Cluff, Atty. Gen., and W. Hal Farr, Asst. Atty. Gen., for the State.

John F Tobin, of Salt Lake City, for appellant.

GIDEON J. CORFMAN, WEBER, THURMAN, and FRICK, JJ., concur.

OPINION

GIDEON, J.

The defendant H. L. Olson, respondent here, and one Lafe Newbold were charged in an information filed in the district court of Salt Lake county with a felony. At the close of the state's evidence the court granted a motion to dismiss the information and discharge the defendant. The state appeals from that judgment.

The prosecution is under Comp. Laws Utah 1917, § 3974x7, as amended by chapter 81, Laws Utah 1921. The section as amended is as follows:

"Any person who shall willfully deprive the owner of any vehicle, either temporarily or permanently by taking possession of, or driving, or taking away said vehicle, or any person who shall assist in or be a party to such taking possession of, or driving, or taking away of any vehicle belonging to another and standing in any street, road, garage or other building or place, or whoever receives, buys or conceals any vehicle knowing or having reason to believe the same to have been stolen, shall be deemed guilty of a felony."

It appears from the testimony that one Hertwig, on the 6th day of August, 1921, was the owner of a Hudson automobile, and that he left the same on Main street, in Salt Lake City, on the evening of that day. Upon leaving the car he removed the rotary arm from the ignition system. After leaving the car he attended a theater. During the time he was in the theater the defendants climbed into the car, and the respondent seated himself at the steering wheel, and apparently attempted to start the car. Thereupon his companion climbed out and raised the right side of the hood over the engine, and inserted his arm into or upon the machinery. It is in the testimony that after so doing he removed something from his coat pocket, and again extended his arm into or upon the machinery of the engine. Newbold then again got into the car. At that time a policeman appeared and inquired of respondent and his companion, if they were the owners of the car, and the respondent answered, "Yes." The policeman then asked the number of the car. The respondent did not give the number, but stated that he "had papers down at the house that would show" that the car belonged to him. The officer thereupon arrested the respondent and his companion, and took them to the police station. It also appears that shortly thereafter some other officers removed the automobile to the police station. The owner, Mr. Hertwig, about the hour of 9 p. m., came from the theater, discovered the loss or removal of the automobile, and immediately proceeded to the police station to report the loss. In examining the car at the police station the owner found a rotary arm in the ignition system.

Counsel for respondent argued in the district court, and argues here, that the facts do not show the commission of any public offense as defined in the statute quoted. It is further contended by respondent that there must be a union of act and intent to constitute an offense, and that the testimony does not show any act in furtherance of the commission of the offense. In other words, that some asportation of the automobile was necessary before the crime was consummated. The district court adopted that theory, and ordered the information dismissed and the respondent's bondsmen discharged. The ruling of the court is assigned as error.

In considering the question presented and argued we do not find it necessary to determine whether the facts shown by the state's evidence authorized submitting to the jury whether respondent was guilty of the principal crime charged in the information and enumerated in the statute. The testimony, in the judgment of the court, clearly shows an attempt to commit the offense charged. In the light of such evidence the court should not have granted the motion to discharge the defendant, but should have submitted to the jury whether the defendant was guilty of an attempt to commit the offense.

Comp. Laws Utah 1917, § 9025, is as follows:

"The jury may find the defendant guilty of...