State v. Fairbanks

370 P.2d 497, 140 Mont. 243, 1962 Mont. LEXIS 72

• Court: Montana Supreme Court
• Decided: April 12, 1962
• Docket: 10246
• Status: Published

Opinions

MR. JUSTICE DOYLE

delivered the Opinion of the Court.

This is an appeal by defendant following his conviction in the District Court of Lewis and Clark County upon a charge of grand larceny.

The charging part of the information against the appellant is as follows:

“CHARLES FAIRBANKS is accused by the County Attorney of Lewis and Clark County, Montana, by this information of the crime of GRAND LARCENY committed as follows: That at the County of Lewis and Clark, in the State of Montana, on or about the 17th day of June, A. D., 1960, and before the filing of this information, the said did wilfully, unlawfully and feloniously steal, take and carry away a 55 Four-door Oldsmobile Serial No. 557-K13488, 60 Tab — 43-00639, License No. 5-7529- — 1959 Plate, the property of Placer Motors, Inc., of the value of $850, with the intent in him, the said CHARLES FAIRBANKS then and there had and having to appropriate the same to his own use and benefit and to permanently deprive the true owner thereof.”

The information also charged a previous conviction of a felony.

To constitute larceny the first essential is that there be a “taking”, that is, the thing which is the subject of the crime must be taken from the possession of the owner into the possession of the thief. The taking, in order to support a charge of larceny, must be against the will of the owner or at least against the consent, in other words, the act of taking must be a trespass against the owner’s possession.

The second essential element in the crime of larceny is the asportation of the thing which is the subject matter of the offense, that is, the taking must be followed by a carrying away or asportation as to supersede the possession of the owner for an appreciable length of time, be it ever so short. To constitute asportation, the thing taken must have been in the entire or absolute possession of the taker.

From territorial days in Montana, the rule has been and still is that the mere possession of personal property by defendant soon after it has been stolen is not sufficient of itself to justify his conviction. Territory v. Doyle, 7 Mont. 245, 14 P. 671; State v. Sullivan, 9 Mont. 174, 22 P. 1088.

In the case of State v. Smith, 135 Mont. 18, 334 P.2d 1099, this court quoted with approval from State v. Labbitt, 117 Mont. 26, 32, 156 P.2d 163, and stated: “ ‘Every taking and carrying away by one person of the personal property of another is not larceny even though it is done without right or claim of right and for the purpose of appropriating the property to the use of the taker. Super-added to the wrongful taking there must be a felonious intent, for without it there would be only a bare trespass which, however aggravated, would not be crime. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury.’ 32 Am.Jur., Larceny, § 36, p. 925.”

Again in State v. Smith, supra, the court quoted from State v. Labbitt, and held: “ ‘To constitute larceny, the party committing the offense must have the view of converting the property to his own use permanently, or depriving the owner of his property permanently”

This court is confronted with a record that discloses that at the time of the arrest of the appellant there were two Oldsmobiles of the year 1955 identical in all respects save as to color and there were two men present, the appellant and Francis E. Molmar, both of whom were arrested and were taken to the Lewis and Clark County jail.

On June 29, 1960, the chief deputy county attorney for Lewis and Clark County made an affidavit relating to Francis P. Molmar, the pertinent part of which is as follows: “That the said witness [Molmar] was in the company of defendant * * * at the time of the commission of the crime set forth in the Information filed herein; that said witness has made a written statement regarding the facts in said case, and from all of the evidence in the possession of the County Attorney at this time, the County Attorney does not believe that the said witness is an accomplice to the crime.”

The record does not disclose that Molmar ever took the witness stand and testified either for or against the appellant, and the sole reference that we have to Mr. Molmar is contained in this affidavit and in the testimony of the state highway patrolman, Mr. Al Mues, who arrested both the appellant and Mr. Molmar.

The record is absolutely silent as to how the two Oldsmobile automobiles were driven to the coulee south and west of Helena. The record is absolutely silent as to who owned the other car. The only matter contained in the record is that the blue and white Oldsmobile was owned by Placer Motors and that the appellant was removing some bolts in and around the radiator of the car with the brown and white Oldsmobile parked contiguous to the car which the appellant was working on. It places this court in the position of having to guess and speculate as to whether the appellant or Molmar removed the car from the sale lot of the Placer Motors and transported it to the place where the officers discovered it. The actual taking and asportation of the car in question is not proven in any sense of the word.

The transcript in this cause consists of 78 pages and but 16 pages are devoted to the actual testimony of the witnesses in connection with the crime with which the appellant is charged. But on the contrary 32 pages are devoted to proving the prior conviction of the appellant.

It is a fair statement of the law that when property is taken with the intent of abandoning the property rather than returning it to the owner, the defendant is guilty of larceny. ¥e cannot determine from the record whether the appellant or Molmar took the ear from the Placer Motors. This court has no right to speculate on the guilt of the appellant any more than did the jury in this case, as there was a total lack of credible evidence showing that the defendant either by himself or with the aid of Molmar took the Oldsmobile, transported it to the place where it was found, or whether Molmar took the car and transported it to the place where it was found, or whether Molmar took the car and transported it to the place where it was found and had the appellant working on it.

Viewed in its entirety the evidence relied upon by the prosecution is insufficient both in quality and quantity to support the verdict of the jury. It is unconvincing, leaves too much to speculation and conjecture and is equally consistent with a hypothesis of innocence as that of guilt. True, one possessed of only normal curiosity might be suspicious and surmise that Fairbanks had something to do with the Oldsmobile car, but mere suspicions, however strong, have not yet been accepted in lieu of proof beyond a reasonable doubt.

When a conviction is sought upon circumstantial evidence, the proof must be such as not only to authorize a belief in the guilt of the accused, but also to exclude every other reasonable hypothesis. State v. Mullins, 55 Mont. 95, 99, 173 P. 788, 789.

Convictions may not be founded upon conjectures however shrewd, nor upon probabilities however strong, State v. Taylor, 51 Mont. 387, 153 P. 275, but only upon evidence which establishes the guilt of the accused beyond a reasonable doubt, that is, upon proof such as to logically compel a conviction of charges true. State v. Postal Tel. Cable Co., 53 Mont. 104, 161 P. 953; State v. Riggs, 56 Mont. 393, 185 P. 165; State v. Riggs, 61 Mont. 25, 201 P. 272; State v. Gilbert, 126 Mont. 171, 246 P.2d 814.

In all of the above-cited decisions this court has recognized and applied the rule that unless the evidence fully meets the tests therein announced, it is insufficient to sustain a conviction.

The trial judge, as is reflected, by the record, was apprehensive of the sufficiency of the proof to sustain the defendant’s conviction.

For these reasons the judgment of the District Court is reversed and the cause remanded for a new trial.

MR. JUSTICE ADAIR and the HONORABLE W. W. LESSLEY, District Judge, sitting in place of MR. JUSTICE JOHN C. HARRISON, concur.