State v. Barker
State v. Barker
Opinion of the Court
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.
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).
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.
Implicit in this analytical foundation is the opposite conclusion, i. e., that several distinct acts of larceny constitute separate criminal offenses.
“If different articles are taken from different owners at different times, the de*696 fendant 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.
“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 act
The other contentions advanced by the State are equally without merit and the District Court’s decision should be upheld
. 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).
Dissenting Opinion
(dissenting):
The main opinion treats the crime of criminal mischief
The common-law crime of malicious mischief
In the instant case, notwithstanding the fact that the State has no burden of proof as to specific intent of malice toward the property owners, the defendant is not precluded from presenting evidence of such intent, and he may proceed to do so if he deems it to be in his best interest. However, as yet, no such evidence has been presented. The mere fact that the 16 vehicles involved are in separate ownership, standing alone, certainly does not resolve the matter of defendant’s intent.
There is no dispute that the property damaged was “of another” and it is readily apparent that the act of the defendant in breaking the 16 windshields was of continuous duration punctuated only by the insignificant lengths of time necessary to move from one vehicle to another. Therefore, the ipse dixit of the main opinion is unacceptable that the defendant did not commit a single act of public vandalism.
When viewed in the light of the foregoing, the “single larceny” doctrine has application, by analogy, to the crime of malicious mischief. The wrongful deprivation of private property (by whatever means) is involved in both offenses, and the same public wrong is perpetrated.
A majority of U.S. jurisdictions (including Utah
Jurisdictions have not been uniformly rigid on what constitutes “the same time” or “the same place.” Some have opted for a strict construction of the rule, holding that, where items are taken consecutively (albeit rapidly) rather than at once,
Defendant argues that, where the Legislature has intended the aggregation of value of the property involved in several offenses, it has specifically provided therefor. The cited examples are those dealing with the issuance of bad checks
Defendant likewise resorts to Utah’s “single criminal episode” provision
It must also be observed that no apparent policy objective would be served by imposing the interpretation of the trial court and the defendant upon the legislative provision in question. To the contrary, it seems little more than a technical escape-hatch, which would permit a criminal defendant to engage in the wholesale destruction of private property, and then evade the statutory punishment assigned simply on the basis that multiple owners were involved. Such an interpretation is clearly in derogation of the intended purpose of the Legislature.
The majority of the Court opines that its ruling is supported by the underlying purpose and policy of the single larceny doctrine, i. e., the prevention of the aggregation of criminal penalties for a single act. However, my reading of the single criminal episode statute
I would reverse and remand for a trial on the merits.
. U.C.A., 1953, 76-6-106.
. Formerly provided for by U.C.A., 1953, 76-60-5, but now superceded by “criminal mischief’ provisions of U.C.A., 1953, 76-6-106, supra.
. In construing a similar Colorado statute, the court in People v. Cisneros, 193 Colo. 380, 566 P.2d 703 (1977), reached the same conclusion.
. U.C.A., 1953, 76-1 — 401 defines a “single criminal episode” as all conduct which is closely related in time and is incident to an accomplishment of a single criminal objective.
. State v. McKee, 17 Utah 370, 53 P. 733 (1898); State v. Mickel, 23 Utah 507, 65 P. 484 (1901).
. 2 Wharton’s Criminal Law and Procedure, § 451.
. 50 Am.Jur.2d, Larceny, § 3.
. State v. Maggard, 160 Mo. 469, 61 S.W. 184 (1901).
. State v. Norman, 135 Iowa 483, 113 N.W. 340 (1907).
. U.C.A., 1953, 76-6-505.
. U.C.A., 1953, 76-6-506.1.
. U.C.A., 1953, 76-1-401, et seq.
. U.C.A., 1953, 76-1-402(1).
Reference
- Full Case Name
- The STATE of Utah, Plaintiff and Appellant, v. Walter Darwin BARKER, Defendant and Respondent
- Cited By
- 10 cases
- Status
- Published