State v. Clark

638 P.2d 572, 96 Wash. 2d 686, 1982 Wash. LEXIS 1229
CourtWashington Supreme Court
DecidedJanuary 7, 1982
Docket47631-4
StatusPublished
Cited by18 cases

This text of 638 P.2d 572 (State v. Clark) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 638 P.2d 572, 96 Wash. 2d 686, 1982 Wash. LEXIS 1229 (Wash. 1982).

Opinions

Williams, J.

In this case, we must decide whether appellant Jack Norman Clark, who initially gained permission to take an automobile, may be convicted of "joyriding" under RCW 9A.56.070 where he exceeded the scope of the [687]*687permission given. Since we hold that appellant was improperly charged under this statute, we reverse his conviction.

Appellant first became acquainted with Dennis Noll, the alleged victim, in August of 1978. On November 1, 1978, Noll again met appellant on the streets of Yakima and offered to let him stay the evening at his (Noll's) residence. The next morning, Noll permitted appellant to use his automobile. Noll testified that he placed certain limitations on appellant's use of his car: to see his probation officer, inquire about a job, and return the car at noon. Appellant testified that Noll told him to use the car as if it were his own and to take care of his problems, the1 largest being a misunderstanding with his girlfriend in Colorado. Later that same morning, Noll saw appellant driving the automobile southbound out of Yakima. The car was not returned to Noll's place of employment at noon. Noll reported the car stolen later that afternoon.

Appellant drove the car to Denver, Colorado, to see his girlfriend. He testified that had Noll imposed restrictions on his use of the car, he would not have gone to Denver. He further testified that upon his arrival in Denver he phoned Noll, informed him of his whereabouts and that of his car, and that he was financially unable to return the car to Yakima.

Noll finally located his car in December of 1978 in Wheatridge, Colorado. The car had been towed to a wrecking yard and was in storage there. Appellant was eventually apprehended in Wyoming and returned to Yakima County approximately 1 year after the alleged incident.

Appellant was charged with taking a motor vehicle without permission of the owner. The case was tried to a jury which returned a verdict of guilty. This case is before us upon certification from the Court of Appeals, Division Three, to determine the applicability of RCW 9A.56.070 to the above facts.

RCW 9A.56.070(1) reads as follows:

[688]*688(1) Every person who shall without the permission of the owner or person entitled to the possession thereof intentionally take or drive away any automobile or motor vehicle, whether propelled by steam, electricity, or internal combustion engine, the property of another, shall be deemed guilty of a felony, and every person voluntarily riding in or upon said automobile or motor vehicle with knowledge of the fact that the same was unlawfully taken shall be equally guilty with the person taking or driving said automobile or motor vehicle and shall be deemed guilty of taking a motor vehicle without permission.

(Italics ours.) This statute is commonly known as the "joyriding statute". The question of whether "without permission" also includes exceeding the scope of permission granted is one of first impression in this state.

In analyzing RCW 9.54.020, the predecessor to RCW 9A.56.070, the following was held to constitute a prima facie case under the statute:

It is only necessary to show that the automobile did not belong to the appropriator and that it was intentionally taken without permission of the person entitled to possession at the time of the taking; ownership, right to possession or permission to use may be asserted as an affirmative defense. State v. Nelson, 63 Wn.2d 188, 386 P.2d 142 (1963).

State v. Solomon, 5 Wn. App. 412, 421, 487 P.2d 643 (1971). It is not necessary to prove a larcenous taking since intent to permanently deprive is not an element of the crime. State v. Nelson, 63 Wn.2d 188, 190, 386 P.2d 142 (1963). At trial, appellant asserted the affirmative defense of permissive use. The State now argues that the question of whether appellant had permission to use the vehicle was a factual question for the jury to decide. Actually, the question is whether the statutory language of RCW 9A.56-.070 can be construed to cover the situation in this case. This is a case of statutory construction involving the meaning of a word within a statute and is solely within the province of this court. See State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 777, 380 P.2d 735 (1963).

[689]*689We find the legislative history of the original version of the joyriding statute, Laws of 1915, ch. 155, § 1, p. 459, and the revised version of the same statute, Laws of 1919, ch. 64, § 1, p. 131 (changing crime from gross misdemeanor to a felony) to be unhelpful, since the question of whether exceeding the scope of permission violated the statute was not addressed by either the House or Senate. Neither is it helpful to supplement the statute by reference to other areas of the law, e.g., insurance law, since such interpretations are based upon entirely different considerations. We can gain some guidance, however, by examining case law from other jurisdictions. Four such cases have come to our attention.

In State v. Boggs, 181 Iowa 358, 164 N.W. 759 (1917), a statute similar to the one at issue here was considered. In that case, the defendant obtained consent from the owner to use an automobile for "fifteen or twenty minutes". Boggs, at 360. Instead, he and some companions took the car around town, then to another town and abandoned it there. In holding the statute inapplicable to those circumstances, the court noted:

As stated by the court, the gist of the offense is the taking and operating, or causing a motor vehicle to be taken or operated, by another without the consent of the owner. The statute was not designed to punish one who, by misrepresentation or for a fraudulent purpose, obtains consent of the owner to take and operate his motor vehicle, but one who takes possession thereof without permission or consent of the owner.

(Italics ours.) Boggs, at 361.

People v. Alaboda, 198 App. Div. 41, 189 N.Y.S. 464 (1921), involved slightly different circumstances in that the defendant originally rented a car but failed to return it. He was prosecuted for larceny. Although larceny would require proof of intent to permanently deprive, the court analyzed the case more from the perspective of a breach of contract. The court noted that such conduct was not an offense against society until the legislature clearly indicates that it [690]*690is criminal, since statutes in contravention of the common law are to be strictly construed.

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Cite This Page — Counsel Stack

Bluebook (online)
638 P.2d 572, 96 Wash. 2d 686, 1982 Wash. LEXIS 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-wash-1982.