I concur in the order reversing the judgment and remanding the case for a new trial.
I likewise concur in the conclusion indicated by the opinion of Mr. Justice MOFFAT that a bailor may commit larceny from his bailee of property, the title to which is in the former. I do not agree that if any crime were assumed to have been committed (under the evidence in light of the verdict) 1 Sec. 110, Art. 9, Chap. 46, Laws of Utah 1935, the statute relative to obtaining custody of property by trick, would more nearly have answered the purpose of the prosecution than the larceny statute. As to the construction of the 1935 statute I concur in what is said relative thereto by Mr. Chief Justice WOLFE. *Page 38
However, I am of the opinion that the crime committed was only the crime of petit larceny if the balance due on the repair bill was but $30. I am aware that there are cases which disagree with such conclusion; but in the light of our larceny statutes presently to be considered, I am unable to 2 ascribe to the Legislature the intent to make it a felony for the owner of a bicycle of the value of $50 to steal it from a mechanic who has expended $1 of material and labor thereon, while at the same time intend that if the theft had been of a $49 bicycle in which the thief had no property rights the crime would be only a misdemeanor.
In distinguishing degrees of larceny on the basis of value of property taken, the Legislature must have had in mind that theft of property of great value was a more serious crime than stealing something of small value because such taking deprived the owner of more and consequently caused him greater injury; and that as to owners of property in the State a more severe penalty is necessary to protect their property rights of greater value than where things of lesser value are involved. It is no offense against a piano to steal it. Nor is the right of a harmonica interfered with by its asportation. Hence we cannot indulge in speculation as to which, from the standpoint of the object taken, is the greater offense. We must refer the degree of the offense to the assumed injury to the owner. In the example given, the special property right which the mechanic had in the bicycle — the limited right of possession — was worth to him no more than $1. He could not be deprived of greater value than that, because payment of $1 by the general owner would obliterate such special property right.
It is true that if a thief who has no property rights therein, steals property worth $100 from one who has merely the possession thereof, he is guilty of grand larceny even though the one in possession was not even rightfully in possession. However, in such case the thief deprives the true owner of property of value $100. He likewise enriches himself *Page 39 to the same extent. But we should not apply such rule so as to say that by stealing property of $100 in value from a lienholder, the general owner is guilty of grand larceny although he deprived the possessor of only $1 in value and enriched himself but to the same extent. The value of "the property taken," as such words are used in 103-36-4, R.S.U. 1933 (U.C.A. 1943), should be held to be but $1.
That such construction of the last cited section accords with legislative intent is borne out by the provisions of 103-36-8, R.S.U. 1933 (U.C.A. 1943), set out in the opinion of Mr. Justice MOFFAT. Thereunder, where the thing stolen is a written instrument evidencing a debt, its value is determined by the amount remaining unpaid thereon. Thus if A gives his note for $100 to B, and after paying to B all except $40 of the debt, A steals the note, he is guilty of only a misdemeanor; because the value of the note is not its face amount but the amount unpaid. Such sum is the greatest amount which B could suffer by its loss; and A could profit by no greater sum by the theft. Suppose, however, that A gave as security for the payment of the loan of $100 a jewel of the value of $100; and, after reducing the indebtedness to $40, he stole the pledged property. If the value of the jewel — the pledged property — is to be the measure of the "value of the property taken," A would be guilty of a felony. On the other hand, if the value of the special property of the pledgee measures the degree of larceny the crime is a misdemeanor. The latter result, in my opinion, is more in accord with the expressed legislative policy and construction of the larceny statute in consonance with such policy gives effect to legislative intent.
Respondent points out, however, that in this case, the jury was justified under the evidence in finding that the lien was for a debt in excess of $50. Nevertheless, no instruction was given in accordance with the theory of value herein expressed, and under the instructions given the jury 3 could have returned its verdict of guilty of grand larceny though the jurors believed from the evidence *Page 40 that the lien was for an amount less than $50. Hence, a new trial should be ordered.