Farlow v. State

• Decision Date: 27 May 1970
• Docket Number: No. 480,480
• Citation: 265 A.2d 578,9 Md.App. 515
• Parties: E. Stephen FARLOW v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 515

9 Md.App. 515

265 A.2d 578

E. Stephen FARLOW v. STATE of Maryland.

No. 480.

Court of Special Appeals of Maryland.

May 27, 1970.

William F. Mosner, Towson, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Barry S. Frame, State's Atty., and Asst. State's Atty., for Baltimore, City, respectively, on the brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

If a person unlawfully appropriates the personal property of another to his own use the path between proof of that fact and conviction of a crime should be straight and clear. But in the absence of a legislative enactment creating an all inclusive crime of theft it is not. We do not have such a statute in Maryland. The result is that the precise factual circumstances determine what offense is committed and one offense is distinguished from another by fine distinctions, always technical and frequently absurd. See Loker v. State, 250 Md. 677, 245 A.2d 814; Loker v. State, 250 Md.App. 1, 233 A.2d 342; Couture v. State, 7 Md.App. 269, 255 A.2d 84; Gordon v. State, 5 Md.App. 291, 246 A.2d 623; Lockard v. State, 3 Md.App. 580, 240 A.2d 312; Van v. State, 1 Md.App. 347, 230 A.2d 109. The prosecutor is faced with a kindle of offenses and if the proof established deviates from the proof anticipated, or if the facts are not precisely interpreted, there may be an acquittal of the offense pursued. ¹ This is so because larceny in this jurisdiction is a crime under the common law. Only the punishment authorized on conviction of it, more severe if the value of the goods stolen is $100 or upwards, and its classification as a felony in such case, are prescribed by statute. Code, Art. 27, § 340. And see § 341. See also Gazaille v. State, 2 Md.App. 462, 465, 235 A.2d 306. Simple common law larceny is the wrongful and fraudulent taking and removal of personal property from the possession of another against his will, with intent to deprive the person entitled thereto of his ownership therein. Robinson v. State, 4 Md.App. 515, 532, 243 A.2d 879. The 'taking' refers to the taking of possession from possession of one entitled thereto. Thus it must be a trespassory taking and trespass against possession is the matrix of the common law larceny concept. ² There has been a constant judicial struggle to ascertain who has possession because an accused cannot, in legal contemplation, trespass against a person's property, if that person does not have possession. Clark and Marshall, Law of Crimes, 6th Ed., § 12.00, p. 707. In general, the taking of possession from another is always a trespass unless with the consent of the other. Consent to possession obtained by fraud, force or intimidation is the same as no consent so far as trespass is concerned. So if the taking is pretended to be for a temporary purpose but with the real intent at the time of the taking to deprive the other of his property permanently, it is a trespassory taking and larceny, sometimes termed 'larceny by trick.' On the other hand if the taking was with innocent intent and thereafter, as a result of a change of mind there was a wrongful appropriation, it is not larceny because the misdeed was by one having lawful possession. It is because trespass against possession is the matrix of common law larceny that several large gaps in the law result. Although larceny is committed when a person by fraud obtains possession and carries the goods away with intent to appropriate them, it is not larceny if the fraud induced the possessor to part with title as well as possession; ³ by obtaining title, even though by fraud, the wrongdoor is not a trespasser by taking and holding goods which, by reason of the title, are his own. This gap was plugged by creating the crime of false pretenses.

See Code, Art. 27, § 140. If personal property, possession of which was acquired by a servant or employee without trespass, in the name of or on account of his master or employer, is fraudulently appropriated by such servant or employee, it is not larceny. This gap was plugged by creating the crime of embezzlement. See Code, Art. 27, § 129. It has been expanded to apply to other than servants and employees, as for example, presidents and directors of a State chartered bank, § 128; insurance agents, solicitors and brokers, § 131; fiduciaries, § 132; carriers, § 133; and public officials, § 138. If a person who is entrusted with goods for the purpose of applying them for the use and benefit of the owner or person who delivered them, fraudulently converts them to his own use, he is not guilty of larceny (unless within the ambit of larceny by trick). This gap was plugged by creating the crime of larceny after trust. See Code, Art. 27, § 353. And we note that even if there is a temporary taking, if the intent is not to deprive the owner of the goods permanently, the offense is not larceny. This gap was plugged by creating the offense of unauthorized use or larceny of the use of certain property such as livestock and vehicles. See Code, Art. 27, § 349. We make one more observation. 'The general rule is that money or property delivered under a mistake of fact can be recovered if the recipient shared the mistake or fraudulently took advantage of it. * * * His duty to return it is clear and his appropriation of it after learning of the mistake is wrongful.' Perkins on Criminal Law, 2nd Ed., p. 253. But the recipient is not always guilty of larceny in the light of the requirement of trespass, even though he may not be free from fault. The test is: 'If the recipient acquires lawful possession before he discovers the mistake (that is at a time later than when the property is offered him), his appropriation to his use is not larceny, however wrongful it may be; if the discovery is made before he acquires lawful possession (that is before he takes what is offered him), it is his duty to disclose the error, and taking by him without such disclosure is a constructive trespass and hence sufficient for larceny.' Id. at 254.

Generally speaking therefore, within the frame of reference of the taking, it is larceny if the taking is trespassory. If the taking is not trespassory, it is false pretenses when title to the goods as well as possession is obtained by fraud; it is embezzlement if a servant or employee fraudulently converts to his own use goods of his master or employer which are in the possession of the servant or employee; it is larceny after trust if a person entrusted with the possession of goods for the purpose of applying them for the use and benefit of the owner or person who delivered them fraudulently converts them to his own use.

In the case before us it is clear that E. Stephen Farlow (appellant) unlawfully appropriated monies belonging to John D. Schapiro and others, trading as Crown Industrial Park and Warehouse (Crown). Farlow was hired by Crown as its General Manager in June 1967 and fired 18 July 1968. Crown rented space to various manufacturers for the storage of goods. An inventory of the goods of each manufacturer was maintained and goods withdrawn from Crown, as evidenced by a bill of lading, were deducted from the inventory. If goods stored by Crown were damaged by Crown's negligence (damaged goods), it was responsible to the owner. If an owner's inventory showed more goods than were in Crown's possession (shortages), Crown was also responsible. But if Crown had more goods than appeared by the inventory (overages), it was its practice to sell such goods and retain the proceeds without notice to the customer. Damaged goods were also sold, but unlike the overages, Crown was responsible for the value of the damaged goods. It seemed that prior to Farlow's employment damaged goods and overages were sold at auction. When Farlow became General Manager, however, he engaged a George W. Krauss, an independent broker, to dispose of such goods. Samples were given to Krauss and he would show them to his customers who would quote a price. If the price was acceptable the goods were picked up by the buyer or Krauss. The sales price would be paid directly to Krauss and he would deduct his commission of 15% and deliver the balance to a secretary of Crown or Farlow. No bills of lading were involved. The charges against Farlow arose from this practice. In receipt of information tending to show that Farlow had appropriated to his own use monies and goods belonging to or in the lawful possession of Crown, the prosecuting authorities were faced with the task of determining what crimes had been committed. The problem was avoided temporarily by the return of an indictment charging various offenses arising from the same acts. Indictment 2364 charged larceny after trust by the 1st count-that on 29 July 1968 Farlow feloniously and fraudulently converted to his own use $3930.50 which had been entrusted to his possession by Crown for the purpose of applying the monies for the use and benefit of Crown. It charged embezzlement of the same monies on the same date by the 2nd count. It charged grand larceny of the same monies on the same dute by the 3rd count. ⁴ At the trial before a jury in the Criminal Court of Baltimore, motion for judgment of acquittal was made at the close of all the evidence and denied. In the charge to the jury th court said: 'Now with respect to indictment 2364, the State is only pressing the third count of the said indictment, which charges larceny in the sum of three thousand nine hundred and thirty dollars and fifty cents. Therefore, your verdict under this indictment will be either guilty or not guilty under the third count. You need not make any finding as to the other counts.' The basis for the court's assertion that the State was pressing only the third count is not disclosed by the record. It may be that the State so stated in its argument to the jury which was made prior to the charge. In...