In the Interest of Champion

221 N.W.2d 773, 1974 Iowa Sup. LEXIS 1119

• Court: Supreme Court of Iowa
• Decided: September 18, 1974
• Docket: 2-56956
• Status: Published

Opinions

HARRIS, Justice.

Robert O’Dell Champion (Robert), a youngster 15 years of age, was charged in juvenile court with being dependent, neglected or delinquent under chapter 232, The Code. After hearing the trial court adjudged him delinquent under § 232.-2(13) (a). This section provides: “‘Delinquent child’ means a child * * * [w]ho has violated any state law * * * except any offense which is exempted from this chapter by law.”

Robert was accused of violating § 321.76, The Code, which provides:

“If any * * * person shall without the consent of the owner, take, or cause to be taken, any automobile or motor vehicle, and operate or drive, or cause the same to be operated or driven, he shall be imprisoned in the penitentiary not to exceed one year, or be imprisoned in the county jail not to exceed six months, or be fined not to exceed five hundred dollars.”

Section 321.76 is not exempted from chapter 232. See § 321.482, The Code.

A trial to the court was had on the charge which resulted in a finding Robert had violated § 321.76. The evidence showed Robert was not present when an automobile was stolen by two other teenage boys. The others drove the car about the city of Burlington, saw Robert, and invited him to join them. He at first rejected the invitation but relented when they persisted. After entering the car Robert first learned it had been stolen and promptly asked to get out. He was dissuaded and later drove the car a short distance.

The brief filed in behalf of Robert states the sole issue on appeal is whether, under these circumstances, Robert violated 321.-76. Robert asserts the element of wrongful taking was not shown.

I. The elements of operating a motor vehicle without consent under § 321.76 include (1) the wrongful taking away from any place and (2) the operation or driving (asportation) of (3) the motor vehicle of another (4) with felonious intent and (S) without the owner’s consent. Robert challenges the sufficiency of the State’s showing only as to the first element, the taking. He argues the element was not shown. He believes he did not take the automobile in the sense required for the element because the taking had already occurred without his participation. Taking means “[t]he act of laying hold upon an article, with or without removing the same. It implies a transfer of possession, dominion, or control.” Black’s Law Dictionary (Revised Fourth Ed.)

We think the evidence is sufficient to show a taking required for the element. The taking from the owner can occur and dominion over the vehicle achieved even though it had been previously lost to the owner by a prior theft. To hold otherwise would accord any thief the right to any vehicle previously stolen and not yet returned to its owner. We believe the legislature intended to proscribe, not just the initial, but any succeeding wrongful taking under § 321.76. The same conclusion under a similar statute was reached in Edwards v. State, 46 Wis.2d 249, 174 N.W.2d 269 (1970).

Since the facts sufficiently show a taking of the vehicle the first element for the offense was supplied. This was the sole issue raised by Robert and the judgment of the trial court is accordingly

Affirmed.

RAWLINGS, LeGRAND, REES and UHLENHOPP, JJ., concur. MOORE, C. J., and REYNOLDSON, MASON and McCORMICK, JJ., dissent.