Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1972, Nos. 652 and 653, in case of Commonwealth of Pennsylvania v. Irvin Sanders.
Drew Salaman, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Louis A. Perez, Jr., Assistant District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Wright, P. J., would affirm on the opinion of the court below.
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The evidence presented in this non-jury case is not sufficient to support a conviction of larceny. The verdict is vacated and the matter remanded for sentencing on the charge of attempted larceny.
The Commonwealth's principal witness was the arresting officer. His testimony may be summarized as follows: On August 24, 1967, appellant and another man approached a parked car, which the officer had been watching because it had been reported as having been stolen. The appellant got into the car behind the steering wheel. The other man went under the hood with a length of wire and a pair of pliers, whereupon the officer went over to the car. The officer stated that "he believed" that the car had been started before he went over to it; he was sure that it had not been moved. When the men failed to produce an owner's card or driver's license, he placed them under arrest. The only other prosecution witness was the owner of the car. He stated that his wife was the possessor of the car, and that in a telephone conversation she told him she had returned from a church picnic, and, finding the car missing, had called to ask if he had it.
The trial judge rested his verdict of guilty of larceny on the ground that appellant's evidence*fn* failed to rebut the inference that one in possession of recently stolen goods has stolen the goods. See Commonwealth v. Dock, 146 Pa. Superior Ct. 16, 21, A.2d 429 (1941). However, the record contains no evidence that the car was recently stolen. The officer testified that he "[did not]
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have the exact date" when the car was stolen. There was no evidence of when the car was reported to the police as having been stolen. The owner of the car said he did not know when he had last had the car; and in his testimony as to what his wife had said (although hearsay, there was no objection) he gave no dates. Though it is possible to establish a non-consensual taking or theft without the possessor's testimony, Arizona v. Butler, 82 Ariz. 25, 307 P. 2d 916 (1957); Wigmore on Evidence, Vol. III, 3d ed., § 2089 (1940), there is no circumstantial evidence here that makes up for the failure of the wife to testify.
The Commonwealth in its submission to the court has stated that "appellant's conviction does not rest on such evidence [of possession of recently stolen goods] and there is no cause for the operation of that doctrine. Rather, appellant's guilt is based on the fact that he and another were attempting to 'jump' an automobile with wires and which they admittedly [sic] had no right whatsoever to drive or to start." Assuming that the trial judge's statement of why he convicted appellant may thus be ignored, even so the evidence is insufficient.
At the time of trial, larceny was defined in Pennsylvania (as it was at common law) as the taking and carrying away of the personal property of another with an intent to deprive the possessor of the goods permanently. Hilliard Lumber Co. v. Harleysville, 175 Pa. Superior Ct. 94, 103 A.2d 436 (1954); Commonwealth v. Nace, 222 Pa. Superior Ct. 329, 295 A.2d 87 (1972). The element of asportation thus required may be proved by evidence of the slightest movement of the property. See People v. White, 71 Cal. App. 2d 524, 162 P. 2d 862 (1945) (car pushed 20 feet from ...