The trial court submitted this case to the jury in the belief that repossession by title holder of the car in question was issuable. Touching this question the prevailing opinion states:
"All the evidence in the case leads to but one conclusion that the titleholder of the automobile had repossessed it at the time the appellant (defendant) took it from the garage."
We challenge vigorously the accuracy of that statement. Quite the contrary, the evidence on the issue of repossession was such that, when resolved either way by the jury, the verdict would not lack substantial support. This we shall demonstrate.
A brief statement of the State's method of proof will assist in a true appraisal of the evidence at the close of the State's case. The defendant did not take the stand nor put on any evidence. The State introduced as a witness one F.L. Schooley, the representative of General Motors Acceptance Corporation, hereinafter referred to as the finance company, claimed in the prevailing opinion to have repossessed the car; also a transcript of certain testimony at the former trial given by one C.E. Magourik, service manager of United Chevrolet Garage in Raton, where the car was stored for repairs at the time of the acts now claimed by defendant to have amounted to repossession as a matter of *Page 363 law and by the State to leave the matter issuable.
It is an admitted fact that the car was in the lawful physical possession of the defendant under the contract when he brought it into the garage for repairs only two days before the acts in question following an accident. While certain repairs were under way in the main garage and before removal to the body shop, a separate building 24 feet distant therefrom, where it was necessary to take it to make body repairs ordered by defendant, the finance company representative, Schooley, visited the garage, identified the car as the one covered by the defendant's contract by checking its motor and serial number, and instructed Magourik, service manager, to hold the car and to let no one have it without his permission. The defendant was in the garage at the time seeing after the repairs. The finance company representative also informed him that he had instructions to tie up the car because of default in making of payments under the contract. The defendant, Shedoudy, did not acquiesce in the finance company's claim of right to possession. On the contrary, he challenged the right of its representative to instruct the service manager to hold the car. Schooley testified:
"Q. Did he (defendant) resist your possession at that time? A. Yes, sir, he said I had no right whatever to issue those instructions."
The service manager, Magourik, neither by word, act nor conduct, indicated acquiescence in or acceptance of the instructions from Schooley to hold the car. And the defendant himself, by interposing an objection which was sustained, blocked the State's efforts to elicit knowledge on Schooley's part as to whether the United Chevrolet Garage would or would not have abided by his instructions. On redirect examination by the State, the following occurred, to-wit:
"Q. Do you know whether or not the United Chevrolet Garage would or would not have abided by that order?
"Mr. Stringfellow: We object as that calls for a conclusion.
"The Court: Sustained."
Although the witness was not permitted to answer the foregoing question, it may fairly be assumed that in relating what transpired between him, the service manager and Shedoudy, he told the whole story and that he would have had to answer "No," thus proving that defendant's objection to an answer was well taken.
The foregoing being all that was said on the occasion in question, as testified by Schooley, the finance company representative, and by the service manager, Magourik, it now remains to be seen whether there was anything to go to the jury on the fact of repossession or whether the trial court should have held as a matter of law on the motion for directed verdict that repossession had been accomplished.
It is an undisputed fact that the car came into the garage in the physical possession *Page 364 of the defendant. It is an undisputed fact that it left the garage in his physical possession two days later. When it passed out of his physical possession upon leaving the car at the garage for repairs, it passed into the physical possession of the United Chevrolet Garage as bailee for requested repairs, remaining in defendant's constructive possession. This was the status on the question of possession when the parley between the finance company representative, the service manager and the defendant took place, a few hours prior to the time when defendant again took the car into his physical possession.
The prevailing opinion overlooks some very important testimony by the finance company representative, Schooley, bearing on the issue of repossession. On redirect examination he testified:
"Q. Did the United Chevrolet Company give the possession of that car to you? A. No, sir.
* * * * * * "Q. In August, 1938, did the United Chevrolet Company actually give the possession of the Shedoudy car to you? * * * A. I never had physical possession of the car."
Thus, if we are to overrule the jury's verdict, it is because of what would seem to us a sort of legal legerdemain whereby at some instant of time subsequent to the meeting of the three persons mentioned and after the colloquy which there transpired, possession of the car passed constructively from the defendant to the finance company. Its physical possession never changed from the time defendant left it in the garage for repairs until he took it from the garage following the colloquy, being in United Chevrolet Garage all the while.
Let us see if this may be deemed accomplished by facts so one sided that reasonable minds could not differ regarding them but must inevitably reach the same conclusion. Remember this important fact: Physical possession of the car never changed from the time it left defendant's physical possession until it came back into his physical possession. In the interim it was in the physical possession of United Chevrolet Garage and, admittedly, in its possession as defendant's bailee until the time of the colloquy between the finance company's representative, the service manager and the defendant. Then, at what instant of time, if ever, did United Chevrolet Garage cease to be defendant's bailee and become bailee of the finance company? The answer to that question must depend on the state of mind of the service manager. The finance company representative stated in his and defendant's presence that he was taking the car into his possession, admonishing the service manager to let no one have it except upon his order. The service manager said neither yea nor nay to this admonition.
The witness Schooley admitted he did not take the car into his physical possession. He neither moved it, nor secured *Page 365 it against moving, as with chains, nor locked the wheels, as was the case in Studebaker Bros. Co. v. Witcher, 44 Nev. 442, 195 P. 334, a decision relied upon in the prevailing opinion. He did not even take the key of the car. So far as repossession was concerned, if repossessed, it was done merely by an assertion in defendant's presence, to which the latter did not assent but, on the contrary, vigorously protested and as to which the service manager remained absolutely silent.
Subsequently, the car was moved into the body shop, another building, and the body shop was locked. This removal took place near closing time the same evening and was seemingly in order to begin the next day the body work ordered by defendant. Let us see whether the act of moving the car into the body shop was in obedience to Schooley's hold order, or in pursuance of the garage company's first duty as bailee to the defendant to repair the car and redeliver same to him. The testimony of the service manager furnishes an answer. He testified:
"Q. For what purpose was the car put into the body shop? A. To get the car straightened; the left side of the body was damaged in the accident."
In other words, the bailee, United Chevrolet Garage, was continuing to perform instructions given it by the defendant. It was he who ordered repairs. Neither the finance company nor anyone else had ordered any.
The equivocal nature of the testimony relied upon by defendant as showing repossession, thus rendering the fact of repossession issuable, is reflected by defendant's cross examination of Schooley, the finance company representative, as follows:
"Q. You said awhile ago that you issued a hold order on this car? A. I told the shop foreman not to release the car without our permission.
"Q. To hold it for you? A. Yes, sir.
"Q. It was a repossession, was it not? A. No, sir.
"Q. Were you not claiming the right and possession of that car at that time? A. I was claiming it.
"Q. And you made that stick until Mr. Shedoudy came and got the car without your knowledge or consent? A. Yes, sir, it was in the possession of the United Chevrolet Company.
"Q. And they were holding it under your orders? A. Yes, sir, and also under the orders of the Insurance Company and Mr. Shedoudy.
"Q. You told them to hold it as you had repossessed it? A. I did not tell them I had repossessed it.
"Q. But that is the way you repossess a car? A. Yes, sir.
"Q. And that is what you did? A. There is a difference in a legal form of repossession." *Page 366
The evidence supports defendant's contention that he was not in default in his payments on the car, but that, as disclosed by a discussion between him and the finance company representative subsequent to the claimed repossession, he challenged a radio charge of $58 and an item for attorney's fees of $105, embraced in the list of alleged defaults on his part. The finance company's own ledger sheet disclosed, and its credit manager as a witness testified, that not a single installment payment had ever been made on time, defaults ranging from one to thirty-two days in payment thereof, and the one overdue when repossession was attempted was in default only seven days at such time. Without notice to purchaser that punctuality in payment would be insisted upon thereafter, and admittedly no such notice was given, this default would not support the right to repossess. Giannini v. Wilson, 43 N.M. 460, 95 P.2d 209.
The record fails to disclose that the finance company man exhibited any title papers, conditional sales contract or anything else to the garage company in proof of his asserted right to repossession. The garage company was first bailee for the defendant. It was changing allegiance on slight provocation if, solely on what transpired in the colloquy between the defendant, the service manager and the finance company representative, it became bailee of the latter. The service manager said nothing to indicate that change of allegiance and what he did after the colloquy and before defendant physically repossessed the car actually was more consistent withcontinuing as bailee for the defendant than with becoming a bailee for the finance company.
Furthermore, viewing charitably the defendant's physical repossession of the car, it reflects the sincerity of his statement to the finance company representative as testified by the latter that he, Schooley, had no right to give the instructions he did to the service manager. If the defendant was sincere in that belief, righteous indignation on his part would easily exonerate him in his own mind of larceny in taking what he already possessed through his bailee. We have direct authority in the books for taking defendant at his word. State v. Greenlee,33 N.M. 449, 269 P. 331; State v. Luttrell, 28 N.M. 393, 212 P. 739. In the first mentioned case the court said [33 N.M. 449,269 P. 333]:
"So, here, we have a question of appellant's mental state, his belief. He alone could say with certainty what he believed. He says he believed deceased was about to take his life, but does not intimate that he believed deceased had committed, or was about to commit, adultery with his wife. An accused person need make no special defense. He need not testify. If he does not, he may demand the submission of every theory of mitigation or justification which the evidence discloses. But, if he does testify, it is fair and reasonable that he be taken at his word."
The prevailing opinion quotes from our opinion on the former appeal of this case, *Page 367 State v. Shedoudy, 45 N.M. 516,118 P.2d 280, 283, as follows:
"At Raton he left it (the car) at a garage for repairs, wherethe holder of the legal title repossessed and stored it, allegedly because of his delinquency in making a payment due thereon." (Italicizing is for emphasis in the prevailing opinion and does not appear in the former opinion.)
It is asserted in the prevailing opinion that the statement just quoted rendered it impossible for the State, under the same facts and circumstances, to prove one of the essential elements of the corpus delicti, namely, that defendant was in possession of the car when the alleged concealment took place. Our former opinion also states:
"If appellant was not entitled to possession of the car at the time he took it from the garage, then he was not guilty of the crime charged, the very foundation of which was the alleged fact that he held possession by virtue of a conditional sales contract at the time he committed the acts charged in the information, ifhe did commit them." (Emphasis ours.)
It thus appears that we spoke loosely in our former opinion in this case on the question of whether repossession had been accomplished under the proof adduced at the former trial. The more important thing is what we did and we actually reversed and remanded the cause for a new trial. If the court then had entertained the view now expressed in the prevailing opinion on the question of repossession, it would have directed the defendant's discharge instead of awarding a new trial.
The defendant did not take the stand and thus did not choose to avoid the heavy burden assumed by one demurring to the evidence. In Paulos v. Janetakos, 41 N.M. 534, 72 P.2d 1, 6, we said: "He (demurrant) still may meet the case on the merits," if his demurrer be overruled. The defendant's motion for a directed verdict was in effect a demurrer to the evidence. It was overruled and the defendant took the risk of standing on the ruling. In our opinion, the court properly overruled the motion for a directed verdict.
We express no opinion whether other claimed errors in the record justify a reversal since the prevailing opinion rests itself squarely on the one discussed. We stop with our appraisal of it. It follows from what we have said that we think the trial court correctly submitted to the jury the issue of repossession of the car. Because of a contrary conclusion by the majority, we dissent. *Page 368