State v. Thompson
| Decision Date | 05 May 1966 |
| Docket Number | No. 38238,38238 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Robert THOMPSON, Appellant. |
Howe, Davis, Riese & Jones, Charles B. Cooper, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Ned Olwell, Deputy Pros. Atty., Seattle, for respondent.
*
Defendant Robert Thompson appeals from a judgment rendered upon a jury verdict of guilty in a criminal prosecution charging him with grand larceny by receiving stolen property.
On the night of November 23, 1964, certain items of clothing were stolen from the automobile of one Dale Baker, while it was parked behind the Hong Kong Cafe in the city of Seattle. Several days later the stolen property turned up at the apartment of one Frank Jenkins, who later testified on behalf of the state. Testimony conflicted as to just how the property came to be at this location. The defendant thereafter attempted, with some success, to sell various items of the stolen clothing to several prospective customers, some of whom he brought to Jenkins's apartment for a showing of the goods. The information under which defendant was tried and convicted charged that:
He, the said ROBERT THOMPSON, in the County of King, State of Washington, on or about the 24th day of November, 1964, with intent to deprive and defraud the owner thereof, willfully, unlawfully and feloniously did receive, conceal, withhold and aid in concealing and withholding certain personal property, to-wit: one leopard ladies raincoat, one ladies brown china mink fur coat, two men's sport coats and two pair of men's pants of a value in excess of $75.00 in lawful money of the United States, the property of one Dale F. Baker, the said ROBERT THOMPSON then and there knowing the said property to have been Wrongfully appropriated; (Italics ours.)
Defendant makes three basic assignments of error. The first is a challenge to the sufficiency of the evidence. In view of the manner in which we choose to dispose of this case, this alleged error will not be considered.
Defendant next assigns error to the giving of two instructions. Instruction No. 2 was given as follows:
To convict the defendant Robert Thompson of the crime of Grand Larceny, as charged in the amended information, the State must prove to you beyond a reasonable doubt:
(1) That on or about the 24th day of November, 1964, with intent to deprive and defraud the owner thereof, Robert Thompson did willfully, unlawfully and feloniously receive, conceal, withhold or aid in concealing and withholding certain personal property, to-wit: one leopard ladies' raincoat, one ladies' brown china mink fur coat, two men's sport coats and two pair of men's pants of a value in excess of $75.00 in lawful money of the United States, the property of one Dale F. Baker;
(2) That said personal property Had been wrongfully appropriated and that The defendant knew said property had been wrongfully appropriated;
(3) That the said personal property was not the property of said Robert Thompson;
(4) That said personal property was received, concealed and withheld in King County, Washington.
If you find from the evidence admitted in this case that the State has proved beyond a reasonable doubt the foregoing elements of the crime charged, then it will be your duty to return a verdict of Guilty of Grand Larceny as charged in the amended information herein.
On the other hand, if, after weighing all the evidence and lack of evidence you then entertain a reasonable doubt as to the establishment of any one of the foregoing elements, then you should return a verdict of not guilty. (Italics ours.)
Instruction No. 3 is as follows:
Larceny, as referred to in these instructions, is defined by the statutes of the State of Washington, as follows:
Every person who, having any property in his possession, custody or control, shall secrete, withhold or appropriate the same to his own use or to the use of any other person other than the true owner or person entitled thereto, with intent to deprive or defraud the owner thereof, steals such property, and if the value of such property shall exceed the sum of $75.00, shall be guilty of Grand Larceny.
Our larceny statute, RCW 9.54.010, is a consolidation of various offenses, all of which have been denominated 'larceny.' This consolidation was made for procedural purposes only, the substantive elements of each offense being no different under the statute than they were at common law. The pertinent parts of RCW 9.54.010 are:
Every person who, with intent to deprive or defraud the owner thereof--
(1) Shall take, lead or drive away the property of another; or (3) Having any property in his possession, custody or control, as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian or officer of any person, estate, association or corporation, or as a public officer, or a person authorized by agreement or by a competent authority to take or hold such possession, custody or control, or as a finder thereof, shall 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; or
(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this chapter--
Steals such property and shall be guilty of larceny.
The information charges defendant with receiving certain property knowing that it had been 'wrongfully appropriated.' It has been questioned whether an information so phrased sufficiently states a crime. The argument is that the information is so vague that an accused reading the same could not know whether he was charged with receiving property which had been, say, embezzled; or which had been procured by false token or by bad check; or which even may have been 'converted'--as the term is used in civil disputes. It is not the reception of property which is known to be 'wrongfully appropriated' that our statute defines as 'larceny;' but the reception of property known to be wrongfully appropriated 'in such manner as to constitute larceny.'
Rule of Pleading, Practice and Procedure 101.04W(2). RCW vol. O, provides in part:
An information shall be considered amended to conform to the evidence introduced without objection in support of...
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