State v. Barker

MAUGHAN, Chief Justice:

The State appeals the District Court’s order granting the defendant’s motion to quash the information filed against him. We affirm. All statutory references are to Utah Code Annotated, 1953, as amended.

The defendant, Walter Darwin Barker, was initially charged with criminal mischief in violation of 76-6-106.1 In support of this charge the State alleged that on the evening of March 8, 1979, the defendant broke or damaged the windshields of 16 separately owned vehicles. The State further contends the several acts of vandalism occurred within a short period of time and at one location, to-wit: the parking lot of P. J.’s Lounge in Salt Lake City, Utah.

Although the damage to any single vehicle did not exceed $250, the total damage to all the vehicles was approximately $1800.00. Relying on this latter amount the State charged the defendant with a third-degree felony as provided for in 76-6-106(2)(c).2

Pursuant to 77-23-3(e) and (g) the defendant moved to quash the information on the grounds the facts presented in the State’s bill of particulars did not constitute the offense charged, but rather represented 16 separate misdemeanor offenses involving 16 separate victims. The defendant further argued this series of misdemeanor offenses could not be aggregated to support the third-degree felony charge. Following a hearing on the matter, the District Court granted the defendant’s motion and dismissed the charge.

The sole issue before this Court is. whether the State may, for the purpose of charging a defendant with a felony under 76-6-106 aggregate the damages suffered by individual property owners from separate acts of vandalism occurring at the same general location over a short period of time.

In support of its aggregation of the damage amount, the State relies on an analogy to the single larceny doctrine. This common law doctrine which is rooted in antiquity rests upon a specific analytical foundation. That foundation provides a single larcenous taking of property, whether owned by one or several individuals, will be treated as a single criminal offense.3 This conclusion is based on the premise that if the taking (in the older cases referred to as the caption) constitutes but a single act, then there is but one offense and the multiple ownership of the property taken is immaterial.4

Implicit in this analytical foundation is the opposite conclusion, i. e., that several distinct acts of larceny constitute separate criminal offenses.5 This concept is explained in Wharton’s Criminal Law and Procedure,6 which states:

“If different articles are taken from different owners at different times, the de*696fendant is guilty of separate larcenies. Accordingly, if on the same expedition there are several distinct larcenous takings, as taking the goods of one person at one place, and afterwards taking the goods of another person in another place, and so on, as many crimes are committed as there are several and distinct takings, and this is true although the thefts may all have been committed in rapid succession and in pursuance of a formed desiring to steal.”

Following this “single act-several act” dichotomy, the Colorado Supreme Court held the robbery of three stagecoach passengers, although committed at the same place and in rapid succession, constituted three distinct offenses.7 Similarly, where articles belonging to different owners were stolen from several areas of a wagon yard, each taking was considered a separate offense.8 The same conclusion was reached in State v. Bolen9 where the court held the theft of money from two cash registers which, although belonging to separate retail shops, were located in a single room and divided by a low wall represented two separate criminal offenses. The court explained:

“The facts show a taking from each cash register. The registers were in different locations; the money taken was the property of separate owners. The factual predicate for the doctrine (single larceny) is lacking because taking the money from two cash registers did not occur at the same time and place.”10

Under the facts of the present case, the defendant moved from automobile to automobile smashing windshields. Each automobile was owned by separate individuals whose property was damaged by separate acts of the defendant. Although the several acts occurred at the same place and in rapid succession, the factual prerequisite for the application of the single larceny doctrine, i. e., a single act, is absent.

Therefore, each separate act of destruction constitutes a violation of 76-6-106(l)(c). Since none of the individual acts resulted in damage to the property of another in excess of $250, the defendant could not be tried for a felony under 76-6-106(2)(c).

This result is also supported by the underlying purpose and policy of the single larceny doctrine. The purpose of that doctrine is to prevent the aggregation of criminal penalties for a single act11 and stems from the presupposition of our law to resolve doubts in the enforcement of the penal code against the imposition of a harsher punishment.12

The other contentions advanced by the State are equally without merit and the District Court’s decision should be upheld *697and the order granting the defendant’s Motion to Quash affirmed.

STEWART and WILKINS,* JJ., concur.

. 76-6-106 reads, in pertinent part: “(1) A person commits criminal mischief if: ... (c) He intentionally damages, defaces, or destroys the property of another....”

. 76-6-106(2)(c) states: “Any other violation of this section is a felony of the third degree if the actor’s conduct causes or is intended to cause pecuniary loss in excess of $1,000 value; a class A misdemeanor if the actor’s conduct causes or is intended to cause pecuniary loss in excess of $500; a class B misdemeanor if the actor’s conduct causes or is intended to cause pecuniary loss in excess of $250; and a class C misdemeanor if the actor’s conduct causes or is intended to cause loss of less than $250.”

. See People v. Sichofsky, 58 Cal.App. 257, 208 P. 340 (1922). See generally 37 A.L.R.3d 1407-1416.

. This rationale is followed in the first Utah case which expressly employs the single larceny doctrine, i. e., State v. Mickel, 23 Utah 507, 65 P. 484 (1901). In that case, this court explained: “Where many articles are stolen at one time, there is only one theft, whether the ownership is in one or many.” Id. at 485.

. See State v. Warren, 77 Md. 121, 26 A. 500 (1893).

. 2 Anderson, Wharton’s Criminal Law and Procedure, § 451 (1957).

. In Re Allison, 13 Colo. 525, 22 P. 820 (1889).

. State v. Maggard, 160 Mo. 469, 61 S.W. 184 (1901). In Maggard, the Supreme Court of Missouri explained: “But, where property belongs to different persons, and is located in different places, as in the case at bar, each asportation with intent to steal constitutes a different offense, although the thefts may all have been committed in rapid succession, and in pursuance of a formal design to steal. In this case it was impossible, in consequence of the different location of the property, that it could have all been taken at the same time, ...” Id. at 184-185.

. State v. Bolen, 88 N.M. 647, 545 P.2d 1025 (1976); see also, People v. Sichofsky, supra, note 3, at 342. (“Where articles stolen from different owners are located at different places, as, for example, where they are located in different rooms of the same house, each asportation with intent to steal constitutes a different offense, although the thefts may all have been committed in rapid succession and in pursuance of a formed design to steal.”)

. State v. Bolen, supra, note 9, at 1026.

. See Sweek v. People, 85 Colo. 479, 277 P. 1 (1929). In Sweek, the Colorado Supreme Court explained: “This is a humane rule .... If each article stolen were of a value sufficient to make the crime a felony, and a separate charge could be filed as to each, a defendant, if convicted, might be sentenced to the penitentiary for the rest of his life.” Id. at 3.

. See Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955).