Robinson v. State

Decision Date06 April 1973
Docket NumberNo. 386,386
PartiesEdward J. ROBINSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Leonard J. Kerpelman, Baltimore, for appellant.

Mary Elizabeth Kurz, Asst. Atty. Gen. with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and James Eagan, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before MORTON, MOYLAN and MENCHINE, JJ.

MOYLAN, Judge.

Although every unauthorized use not amounting to an Unauthorized Use may not establish the element of a trespassory taking, hearsay (even twice compounded) may. Thus the conviction of the appellant, Edward J. Robinson, in a non-jury trial in the Criminal Court of Baltimore, for the Unauthorized Use of an Automobile in violation of Article 27, § 349, will be sustained for one reason, if not for another. The appellant, also convicted of receiving stolen goods and of possession of a deadly weapon, here appeals all three convictions. We will consider first the conviction for the Unauthorized Use of an Automobile.

On August 20, 1971, the National Car Rental System, located at 1915 N. Howard Street, leased a 1971 Matador to one Robert William Anderson. The period of the lease was to run through August 23, 1971. By the terms of the lease, Mr. Anderson was not to permit the vehicle to be operated by any person who was not a qualified licensed driver and who was not furthermore a member of his immediate family or his employee.

On the following day, August 21, 1971, at approximately 4:30 p. m., Officer Monroe Gilliam was on patrol in the 1500 block of Pennsylvania Avenue. He was looking for the appellant who was at that time an escapee from the Maryland Department of Correction and who was reputed to be planning to rob a bank. He had in his possession a picture of the appellant. Spotting the appellant driving an automobile, he hailed the vehicle to the curb, alighted from his own patrol car, and approached the stopped automobile. As he reached the rear fender of the stopped car, it suddenly took off at a high rate of speed. Officer Gilliam, and ultimately several other cars, took off in pursuit. After a high-speed chase, reaching at times speeds of between 50 and 75 miles per hour, the fleeing automobile collided with a stopped automobile in the 2200 block of Edmondson Avenue. The appellant was arrested. The leasing agreement from National to Robert Anderson was recovered from the glove compartment. The appellant was not a licensed driver.

Robert Anderson was not called as a witness by the State. The appellant took the stand and claimed that Robert Anderson was his cousin. The appellant claimed that he had gone with Robert Anderson to rent the automobile. He claimed that Robert Anderson gave him the keys and permitted him to drive the car. The ignition keys were in the car when it was ultimately stopped and there were no indications of a forced entry nor of hot-wiring.

The State relies upon the theory that since the lease from National to Anderson in no event authorized the appellant to drive the automobile, his operating of the car was, ipso facto, an instance of Unauthorized Use. The State's position is predicated upon certain comments made by the trial judge in the course of denying the appellant's Motion for a New Trial:

'The owner of the car was the rental company. They had the equivalent of that person here by virtue of the agreement of American Motors which was the actual lawful owner of the vehicle that had been rented so the owner of the car really did appear to testify against you and he said you have no authority to operate this vehicle under the contract because the fellow who rented the car didn't have any right to let you rent it. It was a clear case of unauthorized use even if the fellow that rented the car were to appear. You had no business driving a rented car without a license, especially when you are an escapee, and you belong in an Institution and certainly anybody who authorized you to drive a car under those circumstances is in danger of going to jail himself. Nevertheless, if anybody was given the opportunity to put on a defense, I think you were and I can't imagine a clearer case of guilt.'

The State's theory of the case is not tenable. It confuses an unauthorized use ex contractu with an Unauthorized Use ex delicto. The purport of Article 27, § 349, can best be appreciated after a thumbnail sketch of how it came to be. It is an off-shoot of § 348 and shares with it an ancestry tracing back to 1547. Horse stealers were more threatening to the pillars of Tudor society than other mere thieves. Chapter 13 of the Acts of 1 Edw. VI removed the benefit of clergy from them, thereby condemning them to the gallows. In 1744, the Colonial Assembly of Maryland brought over the English horse stealing statute with its penalty of 'death as a felon without benefit of clergy'. 1 In 1799, coverage was extended to cover the theft of a 'jack, jenny or mule'. 2 Subsequent amendments added sundry varieties of live stock and wagons to the protected list of chattels. In 1809, the maximum penalty was lowered to fourteen years in the penitentiary. 3 The present Unauthorized Use shoot branched off from the parent stem in 1880. 4 It filled the gap sometimes left by the absence in the unlawful taker of an animus furandi. It applied to 'any person . . . who shall . . . take and carry away out of the custody or use of any person . . . any horse, mare, colt, gelding, mule, ass, sheep, hog, ox or cow, or any carriage, wagon, buggy, cart or any other vehicle' though taken for his 'present use, and not with the intent of appropriating or converting the same'. Chapter 422 of the Acts of 1918 heralded the arrival of the Automotive Age by appending to the phrase 'any other vehicle,' the perhaps superfluous clarification '(including) motor vehicle as defined in the laws of this State relating to such.' See generally Wright v. Sas, 187 Md. 507, 510-511, 50 A.2d 809, 810. In broad import, 'horse thieves' imperceptibly had become 'car thieves'. Their more venial side-kicks, 'joyriders,' experienced the same transformation without breaking stride. Plus ca change, plus c'est la meme chose.

It will thus readily be appreciated that what was once called the 'Horse Stealing Statute' and what is now called the 'Larceny of a Vehicle Statute' is similar to common law larceny in all respects except that it establishes special penalties when the objects of the larceny are designated means of locomotion or conveyance. The 'Unauthorized Use Statute' is similar to its senior counterpart in all respects except that there is no element of 'an intent permanently to deprive the possessor of the item taken'. An intent temporarily to deprive is sufficient. As Chief Judge Orth said for this Court in Sizemore v. State, 5 Md.App. 507, at 515-516, 248 A.2d 417 at 422:

'The distinction between the larceny of a motor vehicle and the larceny of its use (commonly referred to as the unauthorized use of a motor vehicle) is that in the larceny there must be an intent to deprive the owner permanently of his property while in larceny of the use the intent is to deprive the owner temporarily. Gopshes v. State, 1 Md.App. 396, 230 A.2d 475.'

In looking at Unauthorized Use statutes generally, Perkins on Criminal Law (2d ed., 1969) points out, at 273, that these statutes contain all the elements of larceny except that of an animus furandi:

'This statutory crime, whether called 'larceny' or not, is in effect an 'included offense.' It has all of the elements or larceny except the intent to steal, and is limited to a small portion of the general subject matter of larceny.'

It is, of course, fundamental that larceny is a crime against possession and not against ownership; that an essential element is the taking and carrying away of the stolen item; and that the taking must be trespassory or de bonis asportatis. Perkins on Criminal Law (2d ed., 1969) puts the point very concisely at 245-246:

'The taking of possession, while indispensable, is not sufficient for larceny unless it is a trespassory taking. . . . If the taking is consented to by the one from whose possession the chattel is taken, there is no larceny if the consent was not procured by fraud or duress.

For this trespass it is necessary to find that someone other than the wrongdoer had possession of the money or chattel, and that this possession was brought to an end by a taking by the wrongdoer (or by another at his instigation), under such circumstances as to amount in law to trespass.'

This Court was equally explicit as to the necessity for a trespassory taking in Farlow v. State, 9 Md.App. 515, at 516-517, 265 A.2d 578 at 580:

'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. 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.'

It is thus apparent that a trespassory taking is an essential element of the crime of Unauthorized Use. As the Court of Appeals said in Wright v. Sas, supra, 187 Md. at 513, 50 A.2d at 811, in pointing out the essential similarity between Unauthorized Use and larceny: 'In other important respects it includes elements similar to larceny, e. g., 'take and carry away'.'

The State's theory of the case that an unauthorized use in violation of the rental contract will, in...

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24 cases
  • Lakeysha P., In re
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ...history of the horse-stealing statute; see also In re Wallace W., 333 Md. 186, 191, 634 A.2d 53, 56 (1993); Robinson v. State, 17 Md.App. 451, 456, 302 A.2d 659, 662 (1973). The Wright opinion points out how at early English law "horse stealing had been punished more severely than other cas......
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    • Court of Special Appeals of Maryland
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    ...of the gun into evidence and consequently no error was committed in admitting it at the trial. See also Robinson v. State, 17 Md.App. 451, 462-63, 302 A.2d 659 (1973) ("The evidence, to be sure, was hearsay. It was, moreover, hearsay twice compounded.... It is relevant and it is probative."......
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