An appeal from a conviction of grand larceny, from the District Court of Salt Lake County. Defendant stands convicted and sentenced to serve from one to ten years in the State prison for stealing his own automobile. The case illustrates the misuse of the criminal machinery of the law in attempting to enforce a civil obligation.
A statement of the facts out of which this case arose may be summarized as follows: Defendant placed his automobile in the hands of a garageman for repairs on February 17, 1941; he paid $30 on account of the agreed price of $60.00; later, on March 15th, he called for the car and found the repair work not completed, the garageman agreeing to work on the car the following day, Sunday, and have it ready for use Monday, the 17th; on Monday defendant called again, the car still was not completed, but was driven to the doorway of the garage by the garageman; after some discussion about payment, the garageman insisted he had underestimated his charge, a new figure of $71 was arrived at to cover the balance due for work done and for labor to be performed and materials to be furnished to complete the job; defendant made out, signed and delivered to the garageman a draft for $71 drawn on himself, payable through the Salt Lake Clearing House; the garageman sent his wife, the owner of the garage, to the bank with the draft (which was left there for collection), and defendant drove away *Page 25 with his car; further differences arose over the repairs and the payment of the draft, and on Sunday, May 4th, the garageman with his tow car hooked onto defendant's car as it sat parked in the street in front of a church which defendant was attending, and returned it to the garage; defendant then demanded the return of his car, and, that being refused, instituted a conversion action, the result of which is not shown; the garageman then demanded that this conversion action be withdrawn or "he would put defendant over the road" for stealing the car, and about May 27th a complaint was filed charging defendant in some manner (not shown by the record) with criminally issuing the draft, which action appears to have been dismissed; then on June 19th, defendant was arrested and after preliminary hearing bound over to the District Court and released to the custody of his attorney; and, nearly three months after the taking with the automobile in the possession of the garageman, on July 25, 1941, by information filed in the District Court, defendant was charged with the crime of grand larceny, as follows: "That the said Lester Parker, on the 17th day of March, A.D. 1941, at the County of Salt Lake, State of Utah, stole from Lena Lauriente, one (1)automobile, of the value of more than Fifty ($50.00) Dollars," etc., which resulted in the trial, conviction and sentence appealed from.
103-36-1, R.S.U. 1933, defines larceny as
"the felonious stealing, taking, carrying, leading or drivingaway the personal property of another. * * *"
and 103-36-4 provides that grand larceny is committed
"When the property taken is of a value exceeding $50."
The value of what is taken determines the degree of the larceny.
103-36-8, R.S.U. 1933, provides that:
"If the thing stolen consists of any evidence of debt or other written instrument, the amount of money due thereupon or secured to be paid thereby and remaining unsatisfied, or which in any contingency might *Page 26 be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen."
It is provided by 52-2-3, R.S.U. 1933, that:
"Every person who shall make, alter or repair, or bestow labor upon, any article of personal property at the request of the owner thereof shall have a lien upon such article for the reasonable value of the labor performed and materials furnished and used in making such article or in altering or repairing the same, and may retain possession thereof until the amount so due is paid."
And the procedure to be followed in foreclosing such a lien is provided by 52-2-4, in part, as follows:
"At any time after thirty days after default made in the payment of a debt secured by lien upon personal property as in this chapter provided such lien may be foreclosed by advertisement, upon the same notice and in the same manner as is provided for the foreclosure of chattel mortgages * * *."
An artisan's lien attaches by operation of law, and while no reference is made to such a lien in the testimony in this case, nor in the instructions to the jury, appellant contends in his brief that Lena Lauriente, the owner of the Independent Garage, and her husband, Dan Lauriente, who managed the business, waived any lien they may have had on the automobile in question by accepting the draft and presenting it to the bank for collection, receiving the bank's receipt therefor. This point is disposed of in the later discussion of the instructions.
It was held in the case of Cleveland Auto Top Trimming Co. v. American Finance Co., 124 Ohio St. 169, 177 N.E. 217, 218:
"If the chattel mortgagee in a replevin action secures possession of the property, that fact cannot deprive the artisan of his claim to a lien for work and labor expended upon the machine. His lien is not destroyed by the removal of the chattelproperty from his possession without his consent. 17 Ruling Case Law, 607; Gardner v. Le Fevre, 180 Mich. 219, 146 N.W. 653, Ann. Cas. 1916A, 618. In this case, *Page 27 upon the trial, the judge directed the jury to find that the title to the automobile was in the plaintiff but that the defendant had a lien thereon for the balance due on account. This judgment was affirmed. It is only a voluntary surrender ofpossession which deprives the lien claimant of his right toenforce his lien by proper proceedings."
In 17 R.C.L. 607, Sec. 16, it is said:
"The holder of the lien may allow the owner of the property to take it into his possession and remove it without prejudice to the lien, if so agreed. And it is also undisputed that such alien cannot be destroyed by a removal, without the consent of thelienholder, from his possession. Accordingly, if without payment of a lienor's claim, the property is taken from his possession and sold under an execution issued against the actual owner, the lienor may thereafter maintain an appropriate proceeding to assert his right of ownership, though he has purchased the property at the execution sale." Citing, Gardner v. LeFevre,180 Mich. 219, 146 N.W. 653, Ann. Cas. 1916A, 618; Brown v.Petersen, 25 App. D.C. 359, 4 Ann. Cas. 980.
Further, in 16 Eng. Rul. Cas. 143, it is said:
"The foundation of lien at common law being possession, itis, generally speaking, lost by abandonment of possession." Citing, Shaw v. Neale, (H.L. 1858), 4 Jur. (N.S.) 695, 27 L.J. Ch. 444; Hartley v. Hitchcock (1816), 1 Stark, 408, 18 R.R. 790; Ex parte Bland, (1841), 2 Rose 91. "But the specialcircumstances under which possession is lost may prevent thatconsequence; as where the goods are got out of the possession ofthe person claiming the lien by unlawful means. Dicas v.Stockley, (1836), 7 Car. P. 587; see also Ex parte Meux (1821), 1 Glyn J. 116; Wilson v. Kymer (1813), 1 M. S. 157; Re Carter, Carter Carter (1885), 55 L.J. Ch. 230."
We leave this phase of the case to consider adjudicated cases involving larceny of property by the owner. Interesting notes are gathered in 88 Am. St. Rep. at page 596, from which we quote:
"Under ordinary circumstances, it is impossible for one to commit larceny by taking possession of his own property: Adams v. State, 45 N.J.L. 448; People v. Mackinley, 9 Cal. 250;Commonwealth v. Tobin, 2 Brewst. [Pa.] 570; State v.Fitzpatrick, 9 Houst. [Del.] 385, 32 A. 1072; Fairy v.State, 18 Tex. App. 314[18 Tex. Crim. 314]; Bonham v. State, 65 Ala. 456;Alfele v. Wright, 17 Ohio St. 238, 93 Am. Dec. 615. *Page 28
"Hence one is not guilty of larceny for appropriating a deed made to himself and which is in his possession: People v.Mackinley, 9 Cal. 250. So a chattel mortgagor cannot steal a mortgage in his possession, executed by himself: State v.Grisham, 90 Mo. 163, 2 S.W. 223; though the statute involved here related to embezzlement. It has been held that one could not steal his own property from a bailee; Commonwealth v. Tobin, 2 Brewst. [Pa.] 570. But the rule certainly is very firmly established that a person may be guilty of larceny in stealing his own property when it is done with an intent to charge another with its value: Palmer v. People, 10 Wend. [N.Y.] 165, 25 Am. Dec. 551. So where one takes his own property with the intent of depriving another of a lien therein, it may be larceny: State v. Stephens, 32 Tex. 155. [Quod vide.] And the taking of one's own goods from a bailee, if done with the intent to charge the bailee, is larceny: People v. Thompson, 34 Cal. 671; People v. Stone, 16 Cal. 369; State v. Fitzpatrick, 9 Houst. [Del.] 385, 32 A. 1072; Adams v. State, 45 N.J.L. 448. A pledgor taking his property from the pledgee to deprive the latter of his security therein may be larceny: Henry v.State, 110 Ga. 750, 36 S.E. 55, 78 Am. St. Rep. 137; Bruley v. Rose, 57 Iowa 651, 11 N.W. 629. So a mortgagee in possession of personal property has such a title that a felonious taking by the mortgagor would be larceny: People v. Stone, 16 Cal. 369. And the owner of property sold at a sheriff's sale may commit theft of it: Robinson v. State, 1 Ga. 563. Where property merely in the possession of a bailee is taken by the owner at the request of an officer who has levied an attachment on it, the offense is not larceny: Clarke v. State, 41 Neb. 370,59 N.W. 785. Joint owners cannot steal from each other: Bell v.State, 7 Tex. App. 25[7 Tex. Crim. 25]; Kirksey v. Fike, 29 Ala. 206. Neither can tenants in common: Kirksey v. Fike, 29 Ala. 206. A part owner of property cannot be convicted for theft of it, unless the person from whom he took it was entitled to the exclusive possession of it at the time of the taking: Fairy v. State, 18 Tex. App. 314[18 Tex. Crim. 314] [18 Tex. Crim. 314]. So one who is entitled to a small part of a sum of money may, nevertheless, commit larceny of the entire amount: Commonwealth v. Lannan, 153 Mass. 287,26 N.E. 858, 11 L.R.A. 450, 25 Am. St. Rep. 629."
In State v. Homes, 17 Mo. 379, 57 Am. Dec. 269, the court said:
"If the defendant takes the property in a fair color of claim or title, though he may be mistaken, yet there is wanting one essential ingredient to the felony, namely, the felonious intentwith which the property was taken; without this intent it is nolarceny." (Italics added.) See, also, Notes, 57 Am. Dec. 277, and Greene v. Fankhauser, *Page 29 137 A.D. 124, 121 N.Y.S. 1004, the latter case for comparison of facts with the case at bar (although an action for false imprisonment).
And, in State v. Nelson, 36 Wash. 126 78 P. 790, 68 L.R.A. 283, 104 Am. St. Rep. 945, the court quotes 1 from 18 Am. Eng. Ency. of Law, 2d Ed., p. 499:
"While one cannot, generally speaking, steal that which is his own, and it has been declared that this is the rule without qualification, yet it is well settled that a chattel, the general ownership of which is in one person, may be in the possession of another by virtue of some special right or title, as bailee or otherwise, so that the taking by the general owner from the person in possession will be larceny, if done with the feloniousintention of depriving such person of his rights or charging him with the value of the chattel."
In Bruley v. Rose, 57 Iowa 651, 11 N.W. 629, 630, it was held:
"Larceny consists in stealing, taking, and carrying away the property of another. Code, § 3902. It is said by the plaintiff that the legal title to a pledge remains in the pledgor, and that the interest of the pledgee in the thing pledged is not property.
"There is, however, what is known as a special property, distinguishable from the general ownership. The doctrine is elementary that a bailee has a special property in the thing which is the subject of the bailment. Belden v. Perkins,78 Ill. 449; Woodman v. [Town of] Nottingham, 49 N.H. 387, [6 Am. St. Rep. 526]. A pledge is a species of bailment, and the rule as to a special property in the thing which is the subject of the bailment in such case is especially applicable thereto.Lyle v. Barker, 5 Binney [Pa.] 457; Hays v. Riddle, 1 Sandf. [N.Y.] 248. * * *
"Having determined that if the horses were pledged to Rose, as there was evidence tending to show, he had acquired a special property in them. and had not released his lien at the time they were taken, it only remains to be determined whether, if the taking was with the felonious design of depriving Rose of his security, Bruley was guilty of larceny. Our attention has been called to no case where it has been directly held that larceny of a thing pledged can be committed by the pledgor. But where a person has a special property in a thing which has been stolen, the property, in indictment for larceny, may be laid in the special or general owner. State v. Quick, 10 Iowa 451;State v. Somerville, 21 Me. 14, [38 Am. Dec. 248]; 3 Greenl. Ev. *Page 30 § 161; Wharton's Criminal Law, 659. The property may be laid in a bailee even where he has parted with possession, if he did so by mistake. Regina v. Vincent West, 9 Eng. L. Eq., 548.
"In People v. Stone, 16 Cal. 369, it was held that a bailor may be guilty of stealing his own property, if his intent was to charge the bailee with the property. See, also, Palmer'scase, 10 Wend. [N.Y.] 165 [25 Am. Dec. 551]. We are satisfied that a pledgor may be guilty of stealing the thing pledged, and that there was evidence tending to show that Bruley committed such crime."
In an action for false imprisonment, Atchison, T. S.F.R.Co. v. Hinsdell, 76 Kan. 74, 90 P. 800, 803, 12 L.R.A., N.S., 94, 13 Ann. Cas. 981, the court said:
"The situation presented by the fraudulent taking of goods by their general owner from the possession of one having a special interest in them is unusual, and ignorance of the rights of individuals or the public with reference thereto is not to be taken as evidence of bad faith. The entire testimony, so far as it is binding upon the defendant is consistent with the idea that the plaintiff unlawfully took his property from the car where the company had a right to retain it until the freight charge was paid — an act which the law calls larceny, in this case a felony; that on the discovery of the fraud he was rightfully arrested, at the request of the company's agent; that before he had been detained for an unreasonable time, the stolen goods having been returned, the prosecution was abandoned and he was discharged. These facts would not of themselves give him a right of recovery."
In the case of People v. Cain, 7 Cal. App. 163,93 P. 1037, 1038, the court held:
"The law is well settled that the taking of personal property by the general owner with felonious intent from one in possession by virtue of some special right or interest therein constitutes larceny. `It is larceny to steal cattle from an agister who takes them from the owner to pasture, and the property may be alleged in the information to be the property of the agister.' People v. Buelna, 81 Cal. 135, 22 P. 396; People v. Thompson,34 Cal. 671; People v. Long, 50 Mich. 249, 15 N.W. 105; 12 Ency. of Plead. Prac. p. 965; Palmer v. People, 10 Wend. N.Y. [165], 166, 25 Am. Dec. 551; State v. McCoy, 89 N.C. 466;State v. Stephens, 32 Tex. [155], 156. By virtue of the law (Civ. Code, § 3051) Cheney not only had an interest in the heifer to the extent of his lien thereon, but sustained to defendant as the *Page 31 general owner of a relation which might render him legally chargeable for the value of the cow; and this lien, the enforcement of which depended upon possession, as well as the liability for her value, if imposed, constituted property in the animal which might be feloniously taken from him by the general owner. There is nothing in the Code provisions to which appellant directs attention contrary to the general rule. The phrase, `personal property of another,' as used in section 484 of the Penal Code, correctly interpreted, means property in the possession of another who is entitled as bailee, or otherwise, to retain possession thereof for some benefit or profit to himself to the exclusion of all others, rather than the absolute ownership defined by section 679 of the Civil Code. Our conclusion is that the taking of property by the general owner thereof from the possession of one who rightfully holds it as bailee or otherwise for benefit to himself, with the intent to charge such bailee with the value thereof, or deprive him of such benefit, constitutes larceny."
The instant case was tried to a jury. Instructions were given orally, upon stipulation, and Instruction No. 5 is here quoted:
"You are instructed that before you can find the defendant guilty of the crime of Grand Larceny, as charged in the information, you must believe from the evidence, beyond a reasonable doubt, each of the following:
"(1) That the defendant, Lester Parker, on the 17th day of March, 1941, at the County of Salt Lake, State of Utah, didsteal, take and carry away one automobile of the value of more than fifty dollars.
"(2) That the defendant, at the time of such stealing, taking or carrying away, had the felonious intent to steal saidarticle of personal property, and of permanently depriving theowner thereof.
"(3) That said automobile, at the time of the taking, if you should so find, was the personal property of Lena Lauriente.
"(4) That such stealing, taking or carrying away said automobile was against the will, and without the consent of said Lena Lauriente.
"You are further instructed that the burden is upon the State to prove to your satisfaction beyond a reasonable doubt that each and all of the foregoing elements of the crime of Grand Larceny are present in this case. If the State shall have failed to satisfy your mind on one or more of said elements, then you shall acquit the defendant." (Italics added.)
The other instruction define grand larceny and relate generally to the credibility of the witnesses, weight of the evidence, *Page 32 etc. Not one word in the instructions is said with reference to a bailor or bailee, to a lienholder's rights, or to general or special property in a chattel, and, under the instructions, there is no evidence to justify the jury in finding that the automobile alleged to have been stolen "was the personal property of Lena Lauriente," or that there was felonious intent on the part of defendant to commit larceny. It would serve no good purpose to quote at length the testimony supporting this holding.
Sec. 110, Art. 9, chap. 46, Laws Utah 1935, in effect at the time of this alleged offense, provided:
"Any person who obtains the custody of a motor vehicle from the owner thereof or from any person in lawful possession thereof, by any trick, fraudulent or false representation, or any false token or writing, or false personation of another, is guilty of a misdemeanor."
However, this section and Secs. 111 and 112 of the same chapter were repealed by Chap. 50, Sec. 2, Laws Utah 1941, on March 17, 1941 (the same day the alleged offense herein is laid), effective May 13, 1941. If any crime were assumed to have been committed, this statute would have more nearly answered the purpose of the prosecution. But, it has hereinabove been shown that the action brought against defendant for criminally issuing the draft in question was dismissed, which disposes of further consideration of this phase of the case.
The judgment is reversed and the cause remanded for a new trial.