I am constrained to dissent. To me the majority builds upon an unsound premise. It is first said that there is a "serious conflict" in the evidence with respect to that portion pertaining to the issue of the claimed oral consent of the bank to the defendant to remove the vehicle here involved from Teton County, Wyoming, to Montana. While there may have been a conflict in words inasmuch as defendant testified he had such consent and the bank's president testified unequivocally on the State's case in chief that the bank had not given such consent, written or oral, that scarcely creates a real conflict upon which the finding of the jury is binding upon this court in view of the bank's letter admitting it had given oral consent. Even the State concedes in its brief that oral consent was given and centers entirely upon the transaction occurring in Canada. True, the letter was couched in guarded language when it stated that such consent was limited "to one designated location in Montana," but such location was never identified. Likewise when the bank's president was called for rebuttal he retreated from his denial that consent was given, admitted it was orally given in April 1968, and in support of the letter with respect to location testified, "I believe it was Scoby, Montana." The record was not further developed by the State to prove what the limitation of the consent actually was and that defendant had violated it. To me there was no substantial evidence creating a real conflict and it is most unreasonable to suppose that the defendant would seek and obtain such consent with a preconceived scheme to deprive the bank of its security. See Steadman v. Topham, 80 Wyo. 63, 338 P.2d 820,825-827; and Montgomery Ward Co. v. Arbogast, 53 Wyo. 275,81 P.2d 885, 892. *Page 316
The majority then undertakes to overcome this infirmity in the State's proof by holding that the statute requires the consent to remove the vehicle out of the county to be in writing. That I cannot accept. In the first instance it is unquestioned that the statute which defendant is claimed to have violated is for the sole benefit and protection of the financial security holder. Notwithstanding the State's reliance upon Ellis v. State, 74 Fla. 215, 76 So. 698, and State v. Burton, 101 Kan. 62, 165 P. 847, which in essence hold that oral consent is entitled to no consideration, the fact is that the generally prevailing rule and the only reasonable rule is to the contrary despite the requirement that such consent must be in writing. 15 Am.Jur.2d, Chattel Mortgages, § 153, p. 323. To construe the statute in any other manner would be to lay a trap for the unwary.
This, I think, is rather well demonstrated by the within proceeding. The information did not allege that a crime was committed about the middle of May 1968 when the defendant took the wrecker from Wyoming into Montana. On the contrary, the information alleges in one count that defendant not only sold the vehicle in Canada on July 11, 1968, without written consent of the bank but by so doing removed the mortgaged property from Teton County, Wyoming, "with intent to deprive the Jackson State Bank of their security without first obtaining the consent in writing of the said Jackson State Bank." The charge submitted to the jury and upon which the defendant was convicted was the intent to deprive the bank of its security. As I interpret the statute, the gist of the charge is the specific intent of the accused at the time of removal. Proof thereof is an essential element, Pulliam v. State, 167 Neb. 614, 94 N.W.2d 51, 54, and may, of course, be proved by circumstantial evidence. It is fundamental, however, that such intent must exist at the time of the alleged violation of the statute. An intent subsequently formed does not supply the essential elements and it cannot be imputed to an accused "from a subsequent independent transaction." 21 Am.Jur.2d, Criminal Law, § 81, p. 163. Consequently, so far as I am concerned, proof of the disposal of the vehicle in Canada on July 11, 1968, is no proof of an intent to deprive the bank of its security in May 1968. Thus no criminal act within the reach of the statute relied upon was committed at the time defendant took the vehicle into Montana with the consent of the bank, and thus nothing is gained by inquiry into the matter of intent.
The trial court committed fundamental error when at the conclusion of the taking of the evidence it overruled the defendant's motion for acquittal. I would reverse.