Petrich, J.
The State appeals an order dismissing an information charging possession of a stolen firearm in violation of RCW 9A.56.160(l)(e) and 9A.56.140(1). We reverse.
The issue in this case is whether the State, which had ample evidence to support a charge of either theft or possession of stolen property, may elect to charge the defendant with possession of the stolen firearm which had a value of less than $250 rather than the theft. Possession of a stolen firearm, regardless of value, is a class C felony,
while theft of any object of personal property, unless it is taken from the person of another or is worth more than $250, is only a gross misdemeanor.
The trial court reasoned that theft as defined in RCW 9A.56.020(l)(a) and RCW 9A.56.010(7)(a) and possession of stolen property as defined in RCW 9A.56.140(1) deal with the same subject matter. Since theft is more specific as to the type of possession, the theft statute must be applied; otherwise, the State would have the discretion to seek different punishment for the same act in violation of the equal protection clause. The trial court dismissed the information with leave to amend the information to charge an appropriate degree of theft.
In further support of the trial court's reasoning that the theft as the more specific should be charged in preference to possession, defendant relies on legislative intent and the rule of lenity.
It is a fundamental rule that the terms of a specific criminal statute take precedence over a general statute when both are addressed to the same subject matter.
E.g., State v. Workman,
90 Wn.2d 443, 454, 584 P.2d 382 (1978);
State v. Walls,
81 Wn.2d 618, 503 P.2d 1068 (1972);
State v. Becker,
39 Wn.2d 94, 234 P.2d 897 (1951). In the present
case, however, it is more logical to conclude that the possession statute is the more specific since it refers to possession of a specific item, a firearm that has been stolen. The theft statute deals with all kinds of personal property, the degree of the charge largely depending on the value.
Equal protection is violated when the prosecutor has discretion to charge a defendant with either a felony or misdemeanor when the elements contained in each statute are not distinguishable.
E.g., State v. Zornes,
78 Wn.2d 9, 475 P.2d 109 (1970);
State v. Rentfrow,
15 Wn. App. 837, 552 P.2d 202 (1976). Equal protection is not violated when the elements of the two offenses differ, even if the punishments set by the legislature in the two statutes seem somewhat illogical.
State v. Reid,
66 Wn.2d 243, 401 P.2d 988 (1965) (holding it not to violate equal protection when the prosecutor may charge unlawful possession of marijuana (a felony) when the same facts could give rise to a charge of intent to use (a misdemeanor)). The crucial question in the present case, therefore, is whether the elements of third degree theft and possession of stolen property differ.
The larceny statute in effect prior to 1975 sets forth five different types of larceny: (1) taking the property of another; (2) taking property by fraudulent means; (3) wrongful retention of property by a fiduciary; (4) wrongful retention of property originally acquired by mistake; and (5) the knowing possession, receipt or concealment of property known to be wrongfully appropriated.
RCW 9.54-.010 (repealed Laws of 1975, 1st Ex. Sess., ch. 260). The
first three subsections are now essentially incorporated in the statutes defining theft (RCW 9A.56.020), and the fifth subsection governing possession of stolen property is essentially incorporated in the statute defining possession of stolen property (RCW 9A.56.140). Under the old code it was held repeatedly that each subsection defined a separate and distinct crime.
State v. Ladely,
82 Wn.2d 172, 176, 509 P.2d 658 (1973);
State v. Harrell,
68 Wn.2d 44, 47-48, 411 P.2d 407 (1966);
State v. Martin,
94 Wash. 313, 318, 162 P. 356 (1917);
State v. Hite,
3 Wn. App. 9, 12, 472 P.2d 600 (1970),
cert. denied,
403 U.S. 933, 29 L. Ed. 2d 712, 91 S. Ct. 2262 (1971). Subsections (l)-(4) were distinguished by the manner in which unlawful acquisition was acquired,
e.g., State v. Smith,
2 Wn.2d 118, 122, 98 P.2d 647 (1939), while the actual taking or asportation need not be proven to sustain a conviction for unlawful possession.
State v. Ketterman,
89 Wash. 264, 154 P. 182 (1916). The crucial elements in (5) were proof of actual or constructive possession of property the defendant knew or constructively knew to have been stolen.
State v. Ashby,
77 Wn.2d 33, 459 P.2d 403 (1969);
State v. Rye,
2 Wn. App. 920, 471 P.2d 96 (1970). In contrast, the unlawful acquisition by defendant must be proven to support a conviction for (1), the predecessor of
the theft statute.
E.g., State v. Smith, supra
at 122.
It has also been held that mere evidence that defendant actually stole the property standing alone is not sufficient to prove unlawful possession.
State v. Hite, supra
at 13. However, a conviction for possession of stolen property may be sustained where there is evidence that defendant admitted to the actual theft, since such evidence is also proof of defendant's knowledge that the goods were stolen.
State v. Holman, 58
Free access — add to your briefcase to read the full text and ask questions with AI
Petrich, J.
The State appeals an order dismissing an information charging possession of a stolen firearm in violation of RCW 9A.56.160(l)(e) and 9A.56.140(1). We reverse.
The issue in this case is whether the State, which had ample evidence to support a charge of either theft or possession of stolen property, may elect to charge the defendant with possession of the stolen firearm which had a value of less than $250 rather than the theft. Possession of a stolen firearm, regardless of value, is a class C felony,
while theft of any object of personal property, unless it is taken from the person of another or is worth more than $250, is only a gross misdemeanor.
The trial court reasoned that theft as defined in RCW 9A.56.020(l)(a) and RCW 9A.56.010(7)(a) and possession of stolen property as defined in RCW 9A.56.140(1) deal with the same subject matter. Since theft is more specific as to the type of possession, the theft statute must be applied; otherwise, the State would have the discretion to seek different punishment for the same act in violation of the equal protection clause. The trial court dismissed the information with leave to amend the information to charge an appropriate degree of theft.
In further support of the trial court's reasoning that the theft as the more specific should be charged in preference to possession, defendant relies on legislative intent and the rule of lenity.
It is a fundamental rule that the terms of a specific criminal statute take precedence over a general statute when both are addressed to the same subject matter.
E.g., State v. Workman,
90 Wn.2d 443, 454, 584 P.2d 382 (1978);
State v. Walls,
81 Wn.2d 618, 503 P.2d 1068 (1972);
State v. Becker,
39 Wn.2d 94, 234 P.2d 897 (1951). In the present
case, however, it is more logical to conclude that the possession statute is the more specific since it refers to possession of a specific item, a firearm that has been stolen. The theft statute deals with all kinds of personal property, the degree of the charge largely depending on the value.
Equal protection is violated when the prosecutor has discretion to charge a defendant with either a felony or misdemeanor when the elements contained in each statute are not distinguishable.
E.g., State v. Zornes,
78 Wn.2d 9, 475 P.2d 109 (1970);
State v. Rentfrow,
15 Wn. App. 837, 552 P.2d 202 (1976). Equal protection is not violated when the elements of the two offenses differ, even if the punishments set by the legislature in the two statutes seem somewhat illogical.
State v. Reid,
66 Wn.2d 243, 401 P.2d 988 (1965) (holding it not to violate equal protection when the prosecutor may charge unlawful possession of marijuana (a felony) when the same facts could give rise to a charge of intent to use (a misdemeanor)). The crucial question in the present case, therefore, is whether the elements of third degree theft and possession of stolen property differ.
The larceny statute in effect prior to 1975 sets forth five different types of larceny: (1) taking the property of another; (2) taking property by fraudulent means; (3) wrongful retention of property by a fiduciary; (4) wrongful retention of property originally acquired by mistake; and (5) the knowing possession, receipt or concealment of property known to be wrongfully appropriated.
RCW 9.54-.010 (repealed Laws of 1975, 1st Ex. Sess., ch. 260). The
first three subsections are now essentially incorporated in the statutes defining theft (RCW 9A.56.020), and the fifth subsection governing possession of stolen property is essentially incorporated in the statute defining possession of stolen property (RCW 9A.56.140). Under the old code it was held repeatedly that each subsection defined a separate and distinct crime.
State v. Ladely,
82 Wn.2d 172, 176, 509 P.2d 658 (1973);
State v. Harrell,
68 Wn.2d 44, 47-48, 411 P.2d 407 (1966);
State v. Martin,
94 Wash. 313, 318, 162 P. 356 (1917);
State v. Hite,
3 Wn. App. 9, 12, 472 P.2d 600 (1970),
cert. denied,
403 U.S. 933, 29 L. Ed. 2d 712, 91 S. Ct. 2262 (1971). Subsections (l)-(4) were distinguished by the manner in which unlawful acquisition was acquired,
e.g., State v. Smith,
2 Wn.2d 118, 122, 98 P.2d 647 (1939), while the actual taking or asportation need not be proven to sustain a conviction for unlawful possession.
State v. Ketterman,
89 Wash. 264, 154 P. 182 (1916). The crucial elements in (5) were proof of actual or constructive possession of property the defendant knew or constructively knew to have been stolen.
State v. Ashby,
77 Wn.2d 33, 459 P.2d 403 (1969);
State v. Rye,
2 Wn. App. 920, 471 P.2d 96 (1970). In contrast, the unlawful acquisition by defendant must be proven to support a conviction for (1), the predecessor of
the theft statute.
E.g., State v. Smith, supra
at 122.
It has also been held that mere evidence that defendant actually stole the property standing alone is not sufficient to prove unlawful possession.
State v. Hite, supra
at 13. However, a conviction for possession of stolen property may be sustained where there is evidence that defendant admitted to the actual theft, since such evidence is also proof of defendant's knowledge that the goods were stolen.
State v. Holman, 58
Wn.2d 754, 758-59, 364 P.2d 921 (1961);
State v. Carden,
50 Wn.2d 15, 308 P.2d 675 (1957);
State v. Hite, supra.
This, of course, is subject to the limitation that when proof is presented that the one possessing stolen property also stole it, such defendant may only be convicted of the initial theft or the unlawful possession, not both.
State v. Ladely, supra
at 176.
See also State v. Hite, supra.
In the present case, it can be concluded that the elements of third degree theft and possession of a stolen firearm are crimes having distinct elements. The fact that they arise out of a fact pattern in which defendant admits that he actually stole the weapon, conduct which gives the prosecutor discretion to charge either theft or possession based upon the strength of his proof, should not violate equal protection since proof of the theft may be used as evidence of possession with knowledge under the rule of
Holman
and
Carden.
The prosecutor should then be allowed to present evidence on the additional element of continued possession necessary to obtain a conviction for possession of stolen property. The charging discretion can also be upheld based upon a legislative intent of punishing persons possessing stolen firearms more severely than persons who steal items of similar monetary value since firearms no doubt present a greater potential danger to society once converted to stolen property.
See State v. Reid, supra.
The trial court's judgment is reversed and the matter remanded for further proceedings under the information.
Reed, C.J., and Petrie, J., concur.
Reconsideration denied December 26, 1980.
Review denied by Supreme Court February 27, 1981.