People v. Stovall

WORKS, P. J.

Defendants were informed against jointly in two counts, the first charging them with the crime of grand theft, the second charging a violation of section 146 of the Motor Vehicle Act, both charges being based on the same taking of an automobile. Stovall and Roark entered pleas of guilty to the charge made under section 146 and the grand theft charge was dismissed as to them. Miller pleaded not guilty as to both charges and after trial was convicted of grand theft and acquitted of the charge of violating section 146. Miller appeals from the judgment and from an order of the trial court denying his motion for a new trial.

[637]

Section 146 of the Motor Vehicle Act (Stats. 1923, p. 564, Deering’s Gen. Laws, Act 5128) provides: “Any person who shall drive a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, shall be deemed guilty of a felony.” As this language denounces the asportation of an automobile, under the other circumstances stated in the section, appellant contends that his acquittal of the charge made under it rendered it impossible for the jury to find him guilty of grand theft. He therefore says that the verdict of guilty returned against him cannot stand. This does not follow. The real question—one to be mentioned again later—is whether the evidence was sufficient to establish guilt of grand theft. If it was, it is immaterial that the jury acquitted on the other charge. Perhaps a conviction should have resulted on both. Under a state of facts somewhat similar to that here presented we once said: “It may be conceded, for the purpose of the argument, that under the evidence the jury had as much reason for finding appellant guilty on the first and second counts as it had for finding him guilty on the third; but even so, the fact remains that the evidence was sufficient to justify the verdict on the third count, and we must conclude that the jurors were convinced of his guilt thereon. If the jurors paltered with their oaths and with the law they must make their own peace with conscience. If appellant was wrongfully acquitted on the first and second counts the error was in his favor, and he cannot be heard to complain. The fact that the jurors relieved him on two counts does not oblige this court to relieve him on the third”