State v. Wood
| Decision Date | 27 December 1967 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 435 P.2d 857,7 Ariz.App. 22 |
| Parties | The STATE of Arizona, Appellee, v. Trent Vernon WOOD, aka Lance Vernon Wood, Appellant. 101. |
| Court | Arizona Court of Appeals |
Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.
Ralph E. Seefeldt, Tucson, for appellant.
The defendant appeals from convictions of burglary and grand theft; he contends the trial court committed fundamental error in instructing the jury.
The evidence, stated favorably to upholding the verdicts rendered below, State v. George, 95 Ariz. 366, 390 P.2d 899 (1964), indicates the defendant and his wife were guests in the home of the alleged victim on the evening before the alleged burglary. The defendant's wife and their hostess had become acquainted while employed together as waitresses in a restaurant. Keys to the home and to the victim's car were lying on a table in the room where the Woods were guests. The circumstances were such that they would have had an opportunity to have taken these keys without the knowledge of the owner. The victim first noticed the keys were missing after the burglary which occurred the next day.
On the day of the burglary, while the two waitresses were at work, the car in question was taken from the rear of the restaurant and the victim's home was entered and certain personal items were removed, which items included a Mexican ring, three men's suits, and three men's sport coats which belonged to the victim's 'boyfriend.' There were no signs of forcible entry of the home. The victim testified she believed she saw her Mexican ring on the defendant's wife's finger on this same day that the entry was made.
Two boys, who were playing across the street from the victim's home on the evening of the day in which the entry was made, observed a man carrying items from the victim's home and placing them in her car which was parked in front of her home. One of these boys identified this man as being the person portrayed in a photograph admitted in evidence and the photograph in turn was identified as being that of the defendant. The other boy who witnessed the incident was not able to positively identify the defendant as the person seen taking the items from this home. The defendant, at the time of the alleged crimes, wore his hair long, combed into 'wings.' At the time of the trial, the defendant's hair was cut in shorter style. The boy unable to give a positive identification testified the 'hair' in the photograph of the defendant looked like the hair of the man he saw going into the victim's house.
Early in the morning hours of the day after this entry was made, the victim's car was involved in a one-car accident on the highway between Gila Bend and Yuma. The defendant was identified as the driver of the car by the highway patrolman and the garagemen who towed the car to a wrecking yard. Both the highway patrolman and the garageman noticed some items of men's clothing lying in the car. These were released to the defendant at his request by the garageman. The defendant told the highway patrolman that the owner of this vehicle was his girlfriend, that he had her permission to use the car in the Tucson area, but that he had decided to take the car to Yuma without her permission and therefore he was reluctant to have the highway patrolman make a report of the accident. The keys missing from the victim's home were in the car when she recovered it. The other items taken from the victim's home were never recovered.
The defendant complains the court did not properly instruct the jury of the elements of the crime of grand theft. The court, in language taken partly from A.R.S. § 13--661, told the jury that grand theft '* * * consists of the felonious stealing, taking, carrying, Or driving away of the motor vehicle of another.' (Emphasis added.) The defendant did not object to this instruction nor request any instruction that there must be the specific intent to permanently deprive an owner of property. The defendant did, however, make a motion for a directed verdict at the close of the State's case on the grounds there was no showing the defendant intended to permanently deprive the owner of possession of this car, which motion was denied by the court, and, the defendant requested an instruction on joyriding which was refused by the trial court.
Despite the loose language of this statute, it is unquestionably the law of this jurisdiction that in order for there to be a theft of goods, there must be the intent to permanently deprive the owner of the goods. State v. Marsin, 82 Ariz. 1, 307 P.2d 607 (1957); State v. Parsons, 70 Ariz. 399, 222 P.2d 637 (1950); Whitson v. State, 65 Ariz. 395, 397, 181 P.2d 822 (1947).
The evidence here does not lead inexorably to a conclusion that there was intent to permanently deprive the owner of this motor vehicle. For this reason, and because the instruction given permitted a conviction, in the disjunctive, for either stealing or driving away the motor vehicle of another, we hold that fundamental error was committed by the trial court as to the grand theft charge.
The next contention of error pertains to both the grand theft and the burglary charge and is directed at the giving of an instruction:
'The Court instructs you that the actual unexplained possession of recently stolen goods is a fact from which the possessor's guilt may be inferred by you, the jury.'
This was included in a State's requested instruction. A portion of the request, informing the jury that once the possession of recently stolen goods was established '* * * the burden of explaining to you how he obtained possession is upon the defendant * * *,' was stricken from the instruction at the defendant's objection. The only objection made to the instruction, as modified, was that it was not supported by the evidence.
On appeal, the defendant contends the instruction did not inform the jury that possession in and of itself was insufficient to support a verdict and the court did not state whether it intended the instruction to apply to the motor vehicle or the clothing which was reported to have been seen in the automobile while in the defendant's possession. Further, the defendant complains, the instruction assumed the defendant had stolen something.
We view this instruction as a correct statement of the law of this state. State v. Pederson, 102 Ariz. 60, 424 P.2d 810 (1967); Murphy v. State of Arizona, 50 Ariz. 481, 73 P.2d 110 (1937); State v. Valencia, 2 Ariz.App. 301, 408 P.2d 234 (1965). The giving of such an instruction is one of the well-recognized exceptions to the rule that the court will not single out evidence and instruct the jurors as to what they may infer from it. In Pederson, supra, it was recognized by our Supreme Court that this particular inference is one that affects the burden of going forward with the evidence, though it does not, it is said, affect the final burden of proof, which always rests on the State. Cf. State v. Childress, 78 Ariz. 1, 274 P.2d 333, 46 A.L.R.2d 1169 (1954).
Whether it is necessary to qualify this instruction by stating that possession of recently...
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U.S. v. Maloney
...Under Arizona law the crime of larceny requires proof of an intent to deprive the owner of his property permanently. State v. Wood, 7 Ariz.App. 22, 435 P.2d 857, 859 (1968); State v. Marsin, 82 Ariz. 1, 307 P.2d 607, 608 (1957); Whitson v. State, 65 Ariz. 395, 181 P.2d 822, 823 ...
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...exclusively upon circumstantial evidence, a trial court has a duty, sua sponte, to give the Hodge's Rule instruction. State v. Wood, 7 Airz.App. 22, 435 P.2d 857 (1968); State v. Woody, 7 Ariz.App. 26, 435 P.2d 861 (1968). But where, as here, the evidence was not all circumstantial and the ......
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State v. Scofield
...recently held that the intent to permanently deprive the owner of his property was a necessary element of grand theft. State v. Wood, 7 Ariz.App. 22, 435 P.2d 857 (1967). However, we believe there is a fundamental difference between the crime of larceny and embezzlement that creates a diffe......
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...235 Ariz. 627, ¶¶ 7, 11, 334 P.3d at 1289–90 (finding intent to deprive in armed robbery statute); see also State v. Wood, 7 Ariz.App. 22, 24, 435 P.2d 857, 859 (1967) (finding intent to permanently deprive in former grand theft statute). As we noted in addressing a former grand theft statu......