State v. Shedoudy.

• Decision Date: 09 September 1941
• Docket Number: No. 4600.,4600.
• Citation: 45 N.M. 516,118 P.2d 280
• Parties: STATEv.SHEDOUDY.
• Court: New Mexico Supreme Court

45 N.M. 516

118 P.2d 280

STATE

v.SHEDOUDY.

No. 4600.

Supreme Court of New Mexico.

Sept. 9, 1941.Rehearing Denied Nov. 5, 1941.

Appeal from Eighth Judicial District Court, Colfax County; Livingston N. Taylor, Judge.

E. A. Shedoudy was convicted of violation of the statute penalizing a person who, having obtained personalty under conditional sales contract and before title is vested in him, takes, carries away or conceals the personalty contrary to provisions of conditional sales contract without written consent of owner and he appeals.

Reversed and remanded with instructions.

Information charging that accused did unlawfully and feloniously, having obtained possession of certain automobile of conditional seller, by virtue of conditional sales contract, take, carry away and conceal automobile of the value of more than $100 while title to the automobile was in finance company, and without the consent of the title owner, was not defective on ground that it was not alleged that the acts charged to have been done were “contrary to the terms of the conditional sales contract” since statute defining the offense does not so provide. Comp.St.1929, §§ 35-2101, 35-2102.

Robert A. Morrow, of Raton, for appellant.

Edward P. Chase, Atty. Gen., and George H. Hunker, Jr., Asst. Atty. Gen., for appellee.

BRICE, Chief Justice.

The appellant was convicted and sentenced to the State Penitentiary upon a charge by information that he, on the 18th of August, 1938, in the County of Colfax, New Mexico, “did unlawfully and feloniously, having obtained possession of certain personal property of the General Motors Acceptance Corporation by virtue of conditional sales contract, take, carry away and conceal said personal property, to-wit, one *** Chevrolet sedan *** of the value of more than $100, while title to said personal property was in the General Motors Acceptance Corporation, and without the consent of the title owner of said property.”

The statutes under which appellant was informed against are as follows:

“Any person who, having obtained possession of any personal property from the owner or possessor thereof, under a conditional sales contract, and who prior to the vesting of the title in him pursuant to such conditional sales contract, shall sell, transfer, encumber, conceal, take, drive or carry away, or in any manner dispose of such property contrary to the provisions of such conditional sales contract, and without the written consent of the owner under such conditional sales contract, shall, if said property be of the value of one hundred dollars or more, be deemed guilty of a felony, and on conviction shall be fined in a sum not exceeding five thousand dollars, or be punished by imprisonment in the penitentiary for a period of not less than one year nor more than three years, or both such fine and imprisonment in the discretion of the court.” Sec. 35-2102, N.M.Sts.1929.

“The term ‘conditional sales contract’ as used in this act shall be construed to mean and include all contracts, leases, purchase leases, sale leases, or other instruments of writing which are intended to hold the title to personal property in the former owner, possessor or grantor.” Sec. 35-2101, N.M. Sts.1929.

The appellant, who held the car by virtue of a conditional sales contract made in the name of his daughter, drove it from San Diego, California to Raton, New Mexico. At Raton he left it at a garage for repairs, where the holder of the legal title repossessed and stored it, allegedly because of his delinquency in making a payment due thereon.

Thereafter appellant either broke into the garage, or, as he claims, found the door open, and took the car therefrom without the consent of the holder of the legal title, or the owner of the garage. The car was found by the sheriff twenty-five miles from Raton, concealed by brush and boards, at the side of an unoccupied house. The appellant testified that he had turned the car over to one Henry Bush to be delivered by said Bush in California to the holder of the legal title; but that Bush had not so delivered it. The inference was that Bush had stolen it.

It is asserted that the trial court erred in refusing to give to the jury each of five instructions based upon the undisputed fact that the holder of the conditional sales contract had been paid all of the installments due on the car up to and including July 16, 1938, and that each of the seven payments had been made from 15 to 30 days after it became due. That the August 16th payment had been due only seven days at the time the car was placed in the garage for repairs. That this court in Giannini v. Wilson, 43 N.M. 460, 95 P.2d 209, held that the acceptance of monthly payments due upon conditional sales contracts, from 15 to 30 days after their due date, was such acquiescence in delays that a strict performance by the purchaser was waived. That therefore the appellant was within his rights in taking possession of the car and removing it from the garage where it had been stored by the representative of the holder of the legal title.

The appellant also requested an instruction to the effect that he was entitled to possession of the car for all legitimate purposes at the time he removed it from the garage.

[1] The five requested instructions first mentioned, placed too great a burden upon the appellant. If appellant was not entitled to possession of the car at the time he took it from the garage, then he was not guilty of the crime charged, the very foundation of which was the alleged fact that he held possession by virtue of a conditional sales contract at the time he committed the acts charged in the information, if he did commit them. Had the trial court given to the jury the requested instruction the result would have been a concession on the part of the appellant that this element of the crime had been proved by the State.

[2][3] The evidence of appellant's breaking into the garage and taking the car, was admissible only to prove that it was he who did “take, drive, carry away and conceal” the car, and it should have been so limited by the trial court. It was calculated to impress the jury that appellant had stolen the car; an inference most damaging to his defense. The trial court erred in refusing to instruct the jury at appellant's request that at the time he took the car from the garage he was entitled to its possession for all lawful purposes.

Appellant requested the following instruction: “Gentlemen of the Jury, you are instructed that if you believe from the evidence beyond a reasonable doubt that the defendant took the car from the Chevrolet Garage in Raton, New Mexico, and sent it to the dealer in California from whom he purchased the car, or unless you are convinced from the evidence beyond a reasonable doubt that the defendant did not send the car by one Henry Bush to the dealer in California from whom he purchased the same after taking it from the Chevrolet Garage in Raton, New Mexico, then your verdict should be not guilty.” (Emphasis ours.)

[4] This was an attempt to secure an instruction on the theory of the defense. However, the appellant did not testify that he sent the car “to the dealer in California from whom he had purchased it.” He testified that he had turned it over to Bush with instructions to take it to such dealer and Bush evidently had not complied with such instructions. This, however, is rather hypercritical. The request called the Court's attention to the fact that appellant was entitled to an instruction on his theory of the case and one should have been given. It is true, appellant accepted the excessive burden of proving “beyond a reasonable doubt” that he took the car for the purpose stated in the requested instruction, but he alone could have been injured thereby. Whether because of the form of the instruction, an error can be predicated thereon, we need not decide, as in view of another trial, no doubt a proper instruction will be given.

Counsel for appellant was interrupted in his argument, whereupon the following occurred:

“Mr. Morrow: (Out of hearing of the jury). Comes now the defendant and offers to argue to the jury that there is no competent evidence in the case as to the value of the car and no competent evidence to establish the value at one hundred dollars or more by any witness in the case, and to argue that the value of one hundred dollars or more has not been established by the evidence in the case.

“The Court: The Court is the sole judge of the law, and I have already ruled on that question by the attorney for the defendant.

“Mr. Morrow: The defendant will not be permitted to make that argument?

“The Court: No, Sir.

“Mr. Morrow: We except.”

[5] The Court had admitted the testimony regarding the cost and sale price of the car in California, without objection from appellant. The competency of this testimony was a question of law for the Court. The appellant's remedy was to object thereto, request an instruction on the character of evidence necessary to prove value, or move for an instructed verdict because of the failure of proof. The Court did not err in denying the appellant the right to argue to the jury the competency of the testimony, where, as here, there was no instruction on the issue.

[6] However, the appellant's counsel should have been permitted to argue whether the value of one hundred dollars or more had been established by the evidence. The constitutional right to representation by counsel (§ 14 of Art. 2, Constitution of New Mexico) is violated if counsel is denied the right to argue an issue of fact that must be decided by the jury. The refusal of the Court to permit this argument also violated Section 105-2412, which provides that every plaintiff and defendant shall be entitled to be heard before the jury by an attorney. This statute was violated by the Trial Court for the same reason. See State v. Taylor, 32 N.M. 163, 252 P. 984.

[7] In his argument to the jury,...