52 Wn.2d 898, THE STATE OF WASHINGTON, Respondent, v. GERALD T. LECKBAND, Appellant

[No. 34324. Department One.     Supreme Court      April 17, 1958.]

THE STATE OF WASHINGTON, Respondent, v. GERALD T. LECKBAND,
                               Appellant.1

Appeal from a judgment of the superior court for King county, No. 30717, James, J., entered May 24, 1957, upon a trial and conviction of taking a motor vehicle without permission of the owner. Remanded.

Howard T. Manion, for appellant.

Charles O. Carroll and T. Patrick Corbett, for respondent.

PER CURIAM. -

Gerald T. Leckband was charged by information with the crime of "TAKING MOTOR VEHICLE WITHOUT PERMISSION OF OWNER." The cause was tried to a jury, which found the defendant guilty as charged. From the judgment and sentence based upon the verdict, the defendant has appealed.

Appellant assigns error to the court's instruction that the crime charged in the information constituted a felony. He contends that, since the information did not specify whether the appellant was charged under RCW 9.61.040 (cf. Rem. Rev. Stat., 2659], the misdemeanor statute, or RCW 9.54.020 [cf. Rem. Rev. Stat., 2601-1), the felony statute, the trial court erred in refusing to permit the jury to decide whether the appellant was guilty of a felony or a misdemeanor.

For the reasons announced in In re Walder v. Belnap, 51 Wn. (2d) 99, 316 P. (2d) 119 (1957) (an opinion rendered by this court subsequent to the perfecting of this appeal), we find no merit in appellant's contention.

1 Reported in 324 P. (2d) 254.

 June 1958]              IN RE ZOULAS' ESTATE.      899

The appellant was sentenced for a maximum term of twenty years. In In re Walder v. Belnap, supra, we held that the applicable statute fixing the penalty is RCW 9.92.010 [cf. Rem. Rev. Stat., 2265], which provides for a maximum imprisonment term of ten years.

The cause is remanded with instructions to vacate the judgment and sentence and to resentence the appellant in accordance with the views herein expressed.