dissenting.
I dissent. One cannot obtain a valid lien in the fashion here attempted by appellant. This type of lien is not provided by statute. Statutory liens are strictly construed. Minnehoma Financial Company v. Pauli, Wyo., 565 P.2d 835, 839 (1977); American Buildings Company v. Wheelers Stores, Wyo., 585 P.2d 845, 847 (1978). A nonstatutory lien cannot be created except by contract with the owner of the property. Cities Service Oil Company v. Pubco Petroleum Corporation, Wyo., 497 P.2d 1368, 1373 (1972).
The majority opinion does not contend otherwise. Rather, it contends that appellant’s belief that he had a valid lien negatives his “intent to steal” and that the jury was not adequately instructed on lack of intent being a defense to the charge. The majority opinion acknowledges that the court did not err in refusing to give the instruction offered by appellant inasmuch as it was not a proper statement of the law. Rather, such opinion is premised on:
« ⅜ * * jjowever, if the instruction, although not entirely correct, is at least sufficient to apprise the court of the theory of defense, then it is incumbent upon the court to either give the instruction or to otherwise properly instruct upon the accused’s theory of the case. * ⅜ * ”
I believe (1) that the offered instruction was not sufficient to apprise the court of the theory relative to lack of intent, and (2) that, nonetheless, the court was otherwise aware of such theory, and did adequately instruct concerning it.
OFFERED INSTRUCTION
The offered instruction is as follows:
“A defense to larceny by bailee is the taking possession of property to secure payment of a claim.”
On its face, the instruction reflects the contention that one can take property of another at any time in any way to secure payment of a claim. As already noted, such is not the law. The offered instruction does not mention intent. The focus in it is on the activity of taking possession of property. It did not sufficiently apprise the court of a desire to put before the jury as a defense the appellant’s belief that he had a valid lien. The court was not fairly informed that appellant did not believe the other instructions did not go far enough in this respect.
ADEQUATE INSTRUCTIONS
In any event, the instructions given by the court were adequate to advise the jury of appellant’s theory, i.e., that he believed he had the right to refuse delivery of the trailer and thus did not have an intent to steal.
In Instruction No. 3, the jury was informed that the State had “to prove beyond a reasonable doubt every essential fact necessary to constitute the offenses charged.” “Intent to steal” was set forth as an element of the crime in Instructions 7 and 8, with the direction in Instruction No. 8 that:
“If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.”
Instruction No. 10A provided:
“Intent to steal means one must intend to deprive the owner of the possession of *78his property permanently or for an unreasonable length of time.”
Specific intent was defined in Instruction No. 16 as follows:
“To constitute the crime charged of unlawful conversion by bailee and possession of a firearm with intent to unlawfully threaten, there must be a union of two essential elements, an act forbidden by law and a specific intent.
“Specific intent means more than the general intent to commit the act. To prove a crime which involves specific intent, the prosecution must prove beyond a reasonable doubt:
“1. That the Defendant did the act charged; and
“2. That he did it with the specific intent described in the crime charged. The specific intent must be proved beyond a reasonable doubt as any other fact in the case.”
The jury was adequately instructed on the necessity for specific intent, and it is obvious that appellant’s contention that he lacked specific intent was fairly placed before the jury.
I would affirm.