Burgess v. State, 7.

• Court: Court of Appeals of Maryland
• Writing for the Court: DIGGES, J.
• Citation: 155 A. 153,161 Md. 162
• Parties: BURGESS ET AL. v. STATE. [a1]
• Docket Number: 7.
• Decision Date: 09 June 1931

155 A. 153

161 Md. 162

BURGESS ET AL.
v.
STATE. ^[a1]

No. 7.

Court of Appeals of Maryland

June 9, 1931

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., Judge.

Robert Burgess, Frederick Juliano, and Thomas Kenney were convicted of larceny, and they appeal.

Affirmed. [155 A. 154]

Argued before URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Jerome A. Loughran, of Ellicott City, and John Philip Hill, of Baltimore (Joseph L. Donovan, of Ellicott City, on the brief), for appellants.

Wm. L. Henderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty. Gen., and James Clark, State's Atty., of Ellicott City, on the brief), for the State.

DIGGES, J.

The appellants here were convicted of larceny by a jury in the circuit court for Howard county, the judgment and sentence being confinement in the penitentiary for the period of four years. From this judgment they have appealed. The indictment, as drawn, contained six counts, the first, second, and fourth of which were abandoned by the state, and the defendants were tried upon the third, fifth, and sixth counts, which resulted in a verdict of not guilty as to the third and sixth counts but guilty as to the fifth count. The circumstances, as shown by the record, are that on the day in question a colored man, Marcus Curtis, was transporting 90 gallons of whisky from Baltimore to Washington in a Chrysler coach, which car and whisky belonged to one Frank Guy, a resident of the District of Columbia. Further than the above, it is impossible to ascertain from the record before us the circumstances under which the alleged crime was committed. Counsel for both sides have, in their briefs, set forth certain facts which the record here does not contain; and while these statements may describe what took place according to the original transcript, this court is confined to the record now before it.

While it is true that a record should be shortened by condensation, so as to contain only such testimony necessary to a determination of the questions involved, every record should contain so much of the testimony as will enable the court to have a proper understanding of the case. In no other way can the questions passed upon by the trial court be fairly and intelligently considered. This record consists of isolated bits of testimony, showing, in some instances, objection, ruling, and exception; in others, objection, no ruling, and no exception. The record seems to have been prepared upon the assumption that this court is as fully acquainted with the proceedings in the trial court as counsel who participated; and we are therefore asked to pass upon questions of evidence, on fragments of testimony, without the assistance of the context. For instance, under what is claimed to be exception 4, a witness was asked: "What cars were in that accident? The defendants by their counsel objected to the question and witness answered as follows: A Ford and a Cadillac." There is absolutely no evidence in the record of any accident, and yet we are asked to sustain the appellants' objection to that question. What the record contains is within the control of appellants, and what we desire to say is that it must be prepared in such manner as to enable us to pass upon the questions sought to be raised. Anything less than that requirement would be not only unfair to the trial court, but disastrous to the litigants. With these observations, we will proceed to pass upon such of the contentions of the appellants as are properly presented in the record.

The defendants interposed a demurrer to the indictment, and to each count thereof. The indictment charges the defendants with the larceny of an automobile and 90 gallons of whisky. The value of the automobile is alleged to have been $100, and each gallon [155 A. 155] of whisky of the value of $4. The demurrer was overruled, which action it is contended was erroneous, because the ownership of the articles alleged to have been stolen was laid in two different persons. The only count in the indictment which charged larceny alleged property in Frank Guy; this was the fifth count, and the one upon which the defendants were found guilty. Other counts in the indictment, charging robbery, laid the property in Marcus Curtis. It is not proper, in one and the same count, to lay the property alleged to be stolen in more than one person, because each count must contain such allegations as will enable a jury to find the accused guilty on that count. It is clear that the jury could not find by their verdict that the same article which they found had been stolen, was the property at the same time of different persons; but there is nothing to prevent the allegation of ownership of property in different persons, when contained in separate counts of the same indictment, for the purpose of meeting the varying degrees of proof which the testimony may develop. In the case before us, it was not certain whether the testimony would show that the automobile and whisky were the property of Curtis, or the property of Guy. After the proof was in, it was shown to the satisfaction of the jury that it was the property of Guy, and they therefore found that the defendants were not guilty of taking the property of Curtis, which was alleged in one count, but were guilty of taking the property of Guy, contained in another count. In Bishop's New Criminal Procedure, vol. 1, p. 377, citing numerous authorities, the principle is thus stated in a footnote: "The court should always interpose either by quashing the instrument or by compelling an election, where an attempt is made, as manifested by either the indictment or the evidence, to convict the accused of two or more offenses growing out of distinct and separate transactions; but should never interpose in either mode where the joinder is simply designed and calculated to adapt the pleading to the different aspects in which the evidence on the trial may present a single transaction."

The contention is made by the appellants in their brief that the whisky in question, being contraband, was not the subject of larceny. We do not think this question is properly raised. It is not raised by the demurrer to the indictment, because each count of the indictment, in addition to charging the theft of whisky, also charged the defendants with the larceny of an automobile of the value of $100. Neither is it raised by what is purported to be the second exception, because the record, while it shows that the defendants objected to the question by the state's attorney, "Now, what was the whisky worth?" and the court overruled their objection, there was no exception noted. The witness answered: "Four dollars a gallon." If, however, this question were properly presented, we would have no hesitancy in holding that contraband liquor is the subject of larceny. This is practically the uniform holding of the courts throughout the country, before and since the passage of the Volstead Act (27 USCA). Commonwealth v. Rourke, 10 Cush. (Mass.) 397; Commonwealth v. Smith, 129 Mass. 104; Fears v. State, 102 Ga. 279, 29 S.E. 463; State v. Donovan, 108 Wash. 276, 183 P. 127; Ellis v. Commonwealth, 186 Ky. 497, 217 S.W. 368, 11 A. L. R. 1030; People v. Kilpatrick, 79 Colo. 303, 245 P. 719, 720; People v. Otis, 235 N.Y. 421, 139 N.E. 562; People v. Wilson, 298 Ill. 257, 131 N.E. 609; Ray v. Commonwealth, 230 Ky. 656, 20 S.W.2d 484, 66 A. L. R. 1297; 11 A. L. R. 1030, note; 66 A. L. R. 1297, note; 36 C.J. 747. In People v. Otis, supra, decided after the passage of the Volstead Act, the court said: "The statute (41 Stat. 315, tit. 2, § 25) further provides that 'no property rights shall exist' in liquor illegally possessed. There can be no larceny of property not subject to ownership. How then, it is asked, may there be larceny of such liquor? If we give the broadest possible construction to these words, there is no answer; for it must be conceded that to enforce the recent amendment to the Constitution, Congress may declare that to steal liquor shall no longer be a crime. It might think it wise to license theft so as to discourage intoxication. We should not, however, readily impute to it such a design. * * * Certainly the earlier declaration of the same statute (section 3, tit. 2 [27 USCA § 12]) that its provisions are to be 'liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented' gives no indication of...