State v. Cude - 14 Utah 2d 287, 383 P.2d 399 (Sup.Ct. 1963)

Rule:

If property is taken under any circumstances from which the jury might infer that the taking was under a claim of right, an accused is entitled to an appropriate charge distinguishing larceny from a mere trespass. 

Facts:

Cude left his automobile at a garage in Ogden, Utah with the request that the same be repaired. The garage owner initially estimated the cost of the necessary work to be in the neighborhood of $ 180.00. There was evidence, however, that the defendant authorized the garage owner to fix the car, irrespective of the cost. After leaving his automobile at the garage, Cude left the state and returned a few days later. At that time he was presented with a repair bill in the amount of $ 345.00. Unable to pay this charge (or, for that matter, the estimate of $ 180.00), he was refused possession of the car by the garageman. Several hours thereafter (after the garage had closed for the night) Cude returned and, using a duplicate key, drove the automobile away. The automobile was recovered by the police a day or so later while in the possession of Cude’s friend. He contended had taken the car for the purpose of selling the same to realize enough cash to pay off the garage bill. The trial court convicted him of grand larceny. One of Cude’s allegations in his appeal was that he requested an instruction regarding his defense, i.e. that he could not be found guilty if, at the time of the taking, he honestly believed that he had a right to the possession of the automobile, but the trial court refused.

Issue:

Did the trial court err in not granting Cude’s request for instruction?

Answer:

Yes.

Conclusion:

Cude’s own evidence shows he had the necessary intent to steal at the time he took the car. This seemed to argue the weight of the evidence; that the defense was not made in good faith; and that it could not be believed. This was a jury question. Cude’s position was exactly to the contrary. The testimony of the garageman was that Cude’s requested permission to leave his car on the lot while he went to Salt Lake to get money. Cude gave an explanation of his return to the lot and the removal of the car which could be considered as consistent with his theory of defense. He also testified that, "But since that I was the owner of the automobile I had never in my life believed I was committing any felony by taking the car for just a day or two, and that is what I did." That he thought he had a right to take his own car was the only avenue of defense open to him and the only one he asserted. It was consistent with the testimony just quoted and with his request for the instruction referred to above. It was inescapable that the refusal of the trial court to submit the case to the jury upon his theory deprived Cude of a fair trial, and for that reason the judgment should be reversed on that ground.