Brown v. State

• Decision Date: 08 September 1967
• Citation: 233 A.2d 445
• Parties: William BROWN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 445

233 A.2d 445

William BROWN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Sept. 8, 1967.

Carl Schnee, Asst. Public Defender, for appellant.

Jerome O. Herlihy, Deputy Atty. Gen., for appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

CAREY, Justice.

After a trial by jury, the appellant William Brown, Jr. was convicted of grand larceny of an automobile under T. 11 § 631. From the sentence imposed he has appealed. He alleges three errors in the charge to the jury: (1) refusal of the trial Judge to charge on the circumstantial evidence rule; (2) refusal to charge that a permissible verdict was guilty of operating a motor vehicle without the consent of the owner; (3) misleading language concerning the presumption arising from possession of recently stolen property.

Thomas A. Ciconte works in a barber shop in Wilmington Manor Shopping Center which is located on the southeasterly side of Route 40, a dual highway leading from Wilmington to Baltimore, Maryland. The center consists of a fairly long row of stores and shops with a sizeable parking area between the highway and the buildings. On August 16, 1966, Mr. Ciconte was not working, but had occasion to go to the shop about 2:25 P.M. He parked his car (a 1966 Chrysler) at the rear door and walked to his chair at the front of the shop. Upon glancing around, he noticed his car was moving backward. He hastened to the back door and saw the car move forward to the southerly end of the building, then turn right. It was being driven by a colored man wearing a very dark shirt. Mr. Ciconte immediately went to the front of the shop and saw the car pass over both lanes of Route 40, stopping on the far shoulder where there was standing a colored woman wearing a red dress. She entered the car and sat on the front seat. It then moved southwesterly. Mr. Ciconte went to the telephone and called the State Police station at State Road, which is also on Route 40 about 3 1/2 miles southwest of the Center. Almost immediately after the call, Trooper Fleet-wood left the station and drove southwesterly looking for the Chrysler. After proceeding a few miles at high speed, the trooper decided the car must be behind him. He pulled over to the opposite section of the road and started back. Very soon he saw the car proceeding southwesterly. It was being driven by a man who fitted the description given by Mr. Ciconte and who was the appellant. On the front seat was a colored woman wearing a red dress. A man was in the rear seat. The trooper turned to follow them and saw the car stop on the shoulder, whereupon the appellant and the woman got out and exchanged places. As they started to move on, the trooper stopped them and asked to see their driver's licenses. Neither she nor the appellant had such a license. The third person proved to be an Army man who was hitch-hiking to South Carolina. The trooper had previously noticed him standing beside the highway at its intersection with Route 13.

All these events occurred in a very short space of time. The trooper had received word of the call from Mr. Ciconte at 2:34 P.M. He stopped the car at 2:42 P.M. It was proven at the trial that appellant lived in Baltimore. The appellant did not take the stand nor did he present any evidence whatever.

I

Appellant contends that the conviction was based upon circumstantial evidence, at least as to the intent to appropriate the car to his own use, and that the Court should have explained to the jury the rule applicable to that kind of evidence. His argument assumes that this charge is required whenever any part of the State's case depends upon that type of proof.

The general rule is that a refusal to give such a charge is reversible only when the State's case is based entirely or very substantially upon circumstantial evidence. 53 Am.Jur. 570; 23 A C.J.S. Criminal Law § 1250, P. 610. Particularly is this true where intent is the only element not proven by direct testimony. 23A C.J.S. Criminal Law § 1250, P. 620. Intent must usually be inferred from the acts done, but this fact does not necessarily require that the charge on circumstantial evidence be given.

Here the State's case was not based entirely or substantially upon circumstantial evidence. There was direct testimony of a taking and carrying away. The evidence of identity of the taker was very strong, especially in view of the extremely short interval between the taking and the apprehension. The wrongful taking with no apparent purpose of returning the property is, in the absence of explanatory circumstances, evidence of an intent to permanently deprive the owner of his property. State v. Von Buren, 7 Boyce 79, 102 A. 981; 32 Am.Jur. 1048. There was nothing in the proofs in the present case to suggest any intent to return the car to its owner. The finding of larcenous intent was clearly justified. Under the evidence, there was no prejudicial error in refusing the prayer.

II

T. 21 Del.C. § 6702 makes it a misdemeanor to drive a motor vehicle without the owner's consent, with intent temporarily to deprive the owner of his possession thereof. T. 11 Del.C. § 3709 permits the jury, upon a charge of larceny of a motor vehicle, to acquit of the larceny and find a verdict of guilty of violating T. 21 Del.C. § 6702, 'if the evidence warrants such a finding'.

It is appellant's contention that he was entitled under the statute to have the jury consider this alternative verdict and that the trial Judge erred in denying his prayer to so charge. This argument, in our opinion, is not justified by reason or precedent.

At common law, there could never be a conviction of a misdemeanor under an indictment for a felony, nor could an indictment include in separate counts a felony and a misdemeanor. State v. Fitzsimon, 18 R.I. 236, 27 A. 446. In some States, even without statutes, that principle has been held inapplicable because the reasons for its existence have no application in this country today; in other states, statutes have been passed to bring about that result. Delaware has adopted several statutes so providing; they make up the greater part of T. 11 Del.C.Ch. 37. For example, § 3702 permits a verdict of guilty of petty larceny (a misdemeanor) upon an indictment for grand larceny (a felony) if warranted by the evidence, the only distinction between the two crimes being in the value of the property taken. With a...