315 A.2d 797 (Md.App. 1974), 211, Henry v. State

Docket Nº:211.
Citation:315 A.2d 797, 20 Md.App. 296
Opinion Judge:[10] Moylan
Party Name:Tyrone Steven HENRY v. STATE of Maryland.
Attorney:[7] Robert W. Baker for appellant.
Case Date:February 27, 1974
Court:Court of Special Appeals of Maryland
 
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Page 797

315 A.2d 797 (Md.App. 1974)

20 Md.App. 296

Tyrone Steven HENRY

v.

STATE of Maryland.

No. 211.

Court of Special Appeals of Maryland.

February 27, 1974

Page 798

[20 Md.App. 297] Robert W. Baker, Baltimore, for appellant.

John P. Stafford, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., Sandra O'Connor and James Sherbin, Asst. State's Attys., for Baltimore City, on the brief, for appellee.

Argued before THOMPSON, MOYLAN and DAVIDSON, JJ.

MOYLAN, Judge.

The appellant, Tyrone Steven Henry, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge Anselm Sodaro, of larceny of an automobile and the receipt of $16 in stolen cash. The same jury acquitted the appellant of the murder of Benjamin Rubin, the assault with intent to murder Shirley Rubin, and the armed robbery of Shirley Rubin. Upon this appeal, the appellant challenges the procedure by which the jury verdict was rendered and the propriety of the ultimate sentence.

We will look first to the rendering of the verdict by the jury. The jury returned its verdict at 6:25 p. m. In addition to the various acquittals, it announced convictions on three charges. Under indictment 3157, it convicted the appellant on the seventh count, charging him with the unlawful receipt of $16 stolen from Shirley Rubin. Under indictment 3163, it convicted the appellant under the first and third counts, charging, respectively, the larceny of an automobile and the unauthorized use of the same automobile. After the jury was polled, at the request of the State, as to the murder charge, all of the verdicts were hearkened to at 6:30 p. m. and the jury was excused. Immediately thereafter, the following colloquy took place:

'THE COURT: Mr. Baker?

MR. BAKER: Well, I believe the verdicts as to Indictment 3163 are inconsistent.

THE COURT: Well, we'll bring the jury back if you're going to claim they're inconsistent. Let's [20 Md.App. 298] bring the jury back. You mean the larceny of the automobile?

MR. BAKER: May we approach the bench?

THE COURT: Yes.

(OFF RECORD BENCH CONFERENCE)

THE COURT: Is the jury out there? We'll have to bring them back.

(Thereupon, at 6:32 P.M. the jury resumed the jury box.)

THE COURT: Members of the jury, I'll have to ask you to take your seats again, please. Members of the jury, I regret to have to ask you to do this. I'm going to ask you to go back to your jury room and consider indictment 3163 in which you found the defendant guilty on

Page 799

the first count of stealing a car, not guilty of receiving stolen goods, and guilty on the third count of the indictment. I'm going to ask you to go back to your jury room and consider and make a choice between the first count and third count of that indictment.

(Thereupon, at 6:33 P.M., the jury retired to the jury room for further deliberation.)

(Thereupon, at 6:35 P.M., the jury resumed the jury box.)'

The jury's verdict was that the appellant was guilty of the larceny of the automobile and not guilty of its unauthorized use. These verdicts were hearkened to and the jury was again excused. No objection was made by the appellant to the recall of the jury or to any of the proceedings following that recall.

Appellant contends that his larceny conviction is invalid. He maintains that when the verdict of the jury that he was guilty of both larceny and unauthorized use of the same automobile was hearkened to and recorded, it became final and could not thereafter be altered or amended. He concludes that because these two convictions are inconsistent, they cannot be permitted to stand.

We note that the appellant called the judge's attention to [20 Md.App. 299] the alleged inconsistency after the jury had been excused. He interposed no objection to the jury's recall and reconstitution nor to any of the subsequent proceedings. The challenge to the procedure was, therefore, not raised and ruled upon below. We eschew easy reliance upon Maryland Rule 1085, however, because of our belief that even the initial verdicts were not inconsistent. Unauthorized use is, we hold, a lesser included offense within its parent crime of larceny and, as such, a conviction therefor merges into a conviction for the greater, parent crime.

The Relationship Between Larceny and Unauthorized Use

The Unauthorized Use Statute, Article 27, § 349, is a companion and supplemental section to Article 27, § 348, proscribing the larceny of various means of locomotion, animal or mechanical. The lesser misdemeanor parallels the greater felony in all respects, except that the lesser crime does not include the element of animus furandi-the intent to deprive the owner permanently of the goods. The lesser crime, throughout the common law world generally, was a latecomer and was devised to plug a loophole in the law, respecting those cases where trespassory takings had occurred but where the animus furandi was absent or difficult of proof. 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 of larceny except the intent to steal, and is limited to a small portion of the general subject matter of larceny.'

In Robinson v. State, 17 Md.App. 451, 455-456, 302 A.2d 659, 662, we traced the background, history and purpose of the Maryland Unauthorized Use Statute:

'The purport of Article 27, § 349, can best be appreciated after a thumbnail sketch of how it [20 Md.App. 300] came to be. It is an offshoot 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 clegy'. In 1799, coverage was

Page 800

extended to cover the theft of a 'jack, jenny or mule'. Subsequent amendments added sundry varieties of livestock and wagons to the protected list of chattels.

In 1809, the maximum penalty was lowered to fourteen years in the penitentiary. The present Unauthorized Use shoot branched off from the parent stem in 1880. 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's though taken for his 'present use, and not with the intent of appropriating or converting the same'.' (Emphasis supplied.)

The pertinent language of the present § 349, defining the offense, has not departed from that of the Act of 1880. There is no establishment of an affirmative 'temporary intent' as a necessary element of the lesser crime, but only the pointed absence of the element of 'permanent intent' contained in the greater crime of larceny. The main clause of the section makes no mention of intent of any sort. That main clause is followed by a clarifying subsidiary clause negativing the animus furandi:

'. . . although it may appear from the evidence that such person or persons, his or their aiders and abettors, took and carried away the property . . . for [20 Md.App. 301] his or their present use, and not with the intent of appropriating or converting the same.'

Although this negative notion of 'no animus furandi' is sometimes casually described in such affirmative terms as 'an intent to deprive the owner of the goods temporarily' or 'an intent to deprive the owner of the goods less than permanently,' we think it clear that conceptually the lesser offense simply lacks one additional element possessed by the greater offense, and does not establish and affirmative, alternative special mens rea of its own. It was to this point that this Court addressed itself in Robinson v. State; supra, at 17 Md.App. 456, 302 A.2d 662:

'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'.'

The same analysis was reaffirmed by us in Shope v. State, 18 Md.App. 472, 475, 307 A.2d 730, 732:

'Where there is no animus furandi, there is no larceny. Farlow v. State, supra (9 Md.App. 515) 518, 265 A.2d 578. With respect to certain classes of chattels, however, including for present purposes automobiles, the gap created by the lack of intent permanently to deprive the owner of his goods was filled by the enactment of the offense of unauthorized use.'

We there dealt with what would have been a 'larceny by trick' except for the fact that the animus furandi was lacking. We held, under the circumstances, that there had been an unauthorized use. We said, at 18 Md.App. 476-477, 307 A.2d 733:

'In deciding, therefore, whether the appellant, as the assumed lessee of the Ford Mustang, was guilty of unauthorized use, we must ask ourselves whether all elements of the crime of larceny have been established, saving only that of the animus furandi. . . . [20 Md.App. 302] The appellant committed what would have been 'larceny by trick,' had there been an animus furandi. It follows, we hold, that the appellant did, therefore, perpetrate an unauthorized use, absent the animus furandi.'

Those, who conceive of the lesser crime as inconsistent with, rather than subsumed within, the greater, are ensnared in a semantic trap which recurs with nagging frequency-the expression of a negative notion

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