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AGLO 1970 No. 069 - April 30, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                              April 30, 1970



Honorable C. J. Rabideau
Prosecuting Attorney
Franklin County
P.O. Box 951
Pasco, Washington 99301
                                                                                                               Cite as:  AGLO 1970 No. 69


Dear Sir:

            This is written in response to your request for our opinion on a question pertaining to the scope and effect of RCW 9.54.140 (codifying § 1, chapter 32, Laws of 1965).  We paraphrase your question in terms of an illustrative hypothetical factual situation, as follows:

            An individual rents a car in county A and agrees to return it ten days later to a specific place in county B.  Prior to the expiration of this ten day rental period, he phones the rental agent from county C and obtains a five‑day extension of the rental agreement, still having the obligation to return the car to the specific place in county B.  At the end of the full fifteen-day rental period, he fails to return the car, and a notice is sent by registered or certified mail to his last-known address.  He continues to retain possession of the car for a number of months and uses it in counties D, E, and F.  He is eventually apprehended in county G while still in possession of the vehicle.

            Query:  Utilizing the presumption provided for in RCW 9.54.140, in which county or counties may this individual be prosecuted for a violation of our state larceny statute, RCW 9.54.010?

                                                                     ANALYSIS

            In considering this question, there are two preliminary points to be covered.  First, of course, is the basic proposition, as enunciated in Article I, § 22 (Amendment 10) of our state Constitution, that an accused person shall have the right, inter alia,

             [[Orig. Op. Page 2]]
            ". . . to have a speedy public trial by an impartial jury of the county in which the offense [with which he is charged] is charged to have been committed . . ."

            and second is the statutory proposition, as set forth in RCW 10.25.020, that:

            "When a public offense has been committed partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county."1/

             With these two precepts of county criminal jurisdiction in mind, we turn to the two statutes which are directly involved in your question.  The first is RCW 9.54.010, a part of our comprehensive 1909 criminal code,2/ which defines the crime of larceny as follows:

            "Every person who, with intent to deprive or defraud the owner thereof‑-

            "(1) Shall take, lead or drive away the property of another; or

            "(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or  [[Orig. Op. Page 3]] aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune‑telling; or

            "(3) Having any property in his possession, custody or control, as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian or officer of any person, estate, association or corporation, or as a public officer, or a person authorized by agreement or by competent authority to take or hold such possession, custody or control, or as a finder thereof, shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; or

            "(4) Having received any property by reason of a mistake, shall with knowledge of such mistake secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; and

            "(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this chapter‑-

            "Steals such property and shall be guilty of larceny."  (Emphasis supplied)

            The other statute is RCW 9.54.140 ‑ a statute of considerably more recent origin3/ - which provides that:

             [[Orig. Op. Page 4]] "Any person to whom a motor vehicle, or piece of machinery or equipment having a fair market value in excess of two thousand dollars, is delivered on a rental or lease basis under any agreement in writing providing for its return to a particular place at a particular time, who refuses or wilfully neglects to return such vehicle or piece of machinery or equipment after the expiration of a reasonable time after a notice in writing proved to have been duly mailed by registered or certified mail with return receipt requested addressed to the last known address of the person who rented or leased the motor vehicle, or piece of machinery or equipment shall be presumed to have intended to deprive or defraud the owner thereof within the meaning of RCW 9.54.010 defining the crime of larceny.  This presumption may be rebutted by evidence creating a reasonable inference that the failure to return the vehicle or piece of machinery or equipment was not with the intent to defraud or otherwise deprive the owner of his property."  (Emphasis supplied)

            In relating these two statutes, it should be noted that RCW 9.54.140 creates a presumption that the person who rented the vehicle or other item and failed to return it "intended to deprive or defraud the owner thereof within the meaning of RCW 9.54.010 defining the crime of larceny."  This larceny statute includes the factor of "intention to deprive or defraud" as an element to be established for each of the five subdivisions describing separate categories of larceny.  Thus, it would appear that the presumption created by RCW 9.54.140 applies to all of these definitional subdivisions.  However, the conditions under which the presumption arises pursuant to this statute appear to have a relationship only to RCW 9.54.010 (1) and (3) ‑ i.e., a larcenous taking of the property of another, and the larcenous withholding of property of another the original possession of which was lawfully obtained.4/   Clearly, the first of these two subdivisions was in the minds of the legislators  [[Orig. Op. Page 5]] who enacted the presumption statute, as is evidenced by the following excerpt from the 1965 House Journal (pp. 510-511) regarding the measure:

            "Mr. Witherbee:

            "'Mr. Andersen, I notice in this bill ‑ I am for this piece of legislation ‑ that it says in here that after "expiration of a reasonable time."  Reasonable time means a lot of different things to a lot of different people ‑ one day, two hours, six months.  Isn't this leaving it rather vague?'

            "Mr. Andersen:

            "'That refers to a reasonable time which is stated in a notice to him.  In other words, the situation is this, if I may just elucidate a bit, somebody comes in and rents a car for two hours and doesn't come back for two years.  The man who rented this three thousand dollar piece of equipment can't get a larceny warrant from the prosecutor.  The prosecutor won't help him; nobody will help him.  But what this section says is that if he rents a car for a day or two days and doesn't come back, the owner, in a reasonable time, can go ahead and send him a notice addressed to his house telling him to bring it back within ten days or the police will be called.  If he doesn't come back at that time, he is presumed to have taken it with the intention to defraud and then he can be picked up.  If it develops that he is sick or has some other good reason, that is a defense to the cause.  This just provides some reasonable point within which you can go to the law enforcement authorities for recovery and ask for assistance to bring back an expensive piece of equipment.  The reasonable time is stated in the notice and what would be a reasonable time is not certain.  We specifically did not say ten days or a week, because the thing will vary from situation to situation, but a complete defense is to come in and explain why you weren't able to bring the equipment back.  It is merely a presumption; it doesn't make the person guilty of larceny.  It is a presumption to get the assistance of the prosecuting attorney and law enforcement agencies.'"

             [[Orig. Op. Page 6]]
            However, it is apparent to us, as you have suggested in your letter, that the presumption can be equally utilized and applied in connection with "larcenous withholding" under subdivision (3) of the larceny statute.

            We have found no Washington court interpretations of this 1965 enactment ‑ and it does not appear to have been patterned after any of the provisions in the Uniform Motor Vehicle Code.  However, in examining the statutes of other jurisdictions, we have found a similar provision in the statutes of California.  See, Cal. Stats., Vehicles, § 10855, which creates a presumption of embezzlement if an individual wilfully and intentionally fails to return a leased or rented vehicle within five days after the expiration of the rental period.  The statute has been considered by various California district courts of appeals in cases which may be briefly summarized as follows:

            In People v. Cloward, 16 Cal. Rptr. 772 (D.C.A. 1961), the defendant was rented a car by his employer (a new car dealer) in Los Angeles county by a written rental agreement under which he was to have the use of the car for so long as he was an employee of the dealer.  He subsequently severed his employment and took the automobile to San Joaquin county and continued to use it for a number of months.  Later he was arrested in Stanislaus county, where he still had possession of the vehicle.  He was charged and convicted in Los Angeles county, where he had originally obtained possession of the car.  The court indicated that the presumption language of the California statute was applicable to the "taking of the vehicle."

            In People v. Carr, 40 Cal. Rptr. 58 (D.C.A. 1964), the defendant rented a car for one day at the Los Angeles International Airport One‑Day Car Rental.  The rental period was subsequently extended for two days.  A month later the defendant was involved in an accident while driving the rental vehicle, and was arrested and charged (in Los Angeles county) with its theft.  The court indicated that every time the defendant drove the car after the five‑day presumption period, she was in violation of the law ‑ i.e., by continuing to deprive the owner of the vehicle of his rightful possession.  Thus, under this approach, any county in which she had used the car after the five‑day presumption period would have jurisdiction to charge her under the California embezzlement statute.

             [[Orig. Op. Page 7]]
            In People v. Starkey, 44 Cal.Rptr. 738 (D.C.A. 1965), the defendant rented a truck for five hours and kept it for more than five days beyond this period.  The court in this case indicated that the presumption of embezzlement applied from the date upon which the rental agreement expired.  Thus, the defendant was unlawfully depriving the owner of the possession of the vehicle after the expiration of the five‑hour rental period.

            And, finally, in People v. Washburn, 71 Cal. Rptr. 577 (C.A. 1968), the defendant rented a car for a weekend in Santa Barbara.  Some six months later he was arrested in the state of Utah while in possession of the vehicle.  The defendant was charged in Santa Barbara county, and the court (as in People v. Cloward, supra) indicated that the presumption would apply to the taking of the vehicle, which was within Santa Barbara county.

            In light of the similarities between the Washington statute and the California presumption statute, it is reasonable, we believe, to interpret our statute in the same manner as the California courts have interpreted the California statute; i.e., that the presumption applies both to the original taking of the vehicle and the continued possession of the vehicle after the expiration of the extended rental period.  In terms of the pertinent subdivisions of RCW 9.54.010, this approach would support a prosecution under subsection (1) ‑ the "taking" provision ‑ in the county in which the vehicle was originally rented (county A in the hypothetical illustration); and, likewise, it would support a prosecution under subsection (3) ‑ withholding ‑ in any of the counties (D, E, F and G) in which the vehicle was used after the expiration of the extended rental period.


            On the other hand, a prosecution in counties B and C would appear to be more difficult to sustain ‑ at least on the basis of the presumption alone.  Of course if it could be shown in fact that the requisite intent to deprive or defraud was formed in county B (where the vehicle was due to be turned in) or county C (from which the phone call for an extension of the rental period was made), then the provisions of RCW 10.25.020 (relating to crimes committed partially in two counties) would appear to be applicable.  See, e.g., State v. Boulet, 5 Wn.2d 654, 106 P.2d 311 (1940), in which the court considered the application of that statute to a charge under RCW 9.54.010 (3).  The defendant in this case had obtained an assignment of notes in King county which were collectible in that county.  He subsequently took the notes to Pierce county, made the collections from King county and appropriated them to his own use.  When the defendant was charged in Pierce county, he challenged the jurisdictional venue of the court.  The supreme court concluded  [[Orig. Op. Page 8]] that both King county and Pierce county had jurisdiction to try the defendant for a violation of RCW 9.54.010 (3).

            Another case worth noting in this regard is State v. Bogart, 21 Wn.2d 765, 153 P.2d 507 (1944), wherein the defendant was tried and convicted in Yakima county for contributing to the delinquency of a minor even though he did not physically enter Yakima county, but rather directed his communication to the minor through the mail from King county.  That case could be considered in terms of the extension of the rental agreement by telephone call from county C in the hypothetical factual illustration upon which your question is based.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

FOR THE ATTORNEY GENERAL


Edward B. Mackie
Deputy Attorney General


                                                         ***   FOOTNOTES   ***

1/Contrast this statute with the provision now codified as RCW 10.25.040, which states that:

            "When property taken in one county by burglary, robbery, larceny or embezzlement, has been brought into another county, the jurisdiction is in either county."

            In light of the supreme court's decision in State v. Carroll, 55 Wash. 588, 104 Pac. 814 (1909), we do not believe it is appropriate to rely upon this provision.

2/Chapter 249, Laws of 1909.

3/Section 1, chapter 32, Laws of 1965.

4/See, State v. Johnson, 56 Wn.2d 700, 355 P.2d 13 (1960), for a discussion of the distinction between these two subdivisions of the statute.
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