Garland v. Com.

• Decision Date: 26 July 1994
• Docket Number: No. 0852-93-2,0852-93-2
• Citation: 446 S.E.2d 628,18 Va.App. 706
• Court: Virginia Court of Appeals
• Parties: Wayman Jesse GARLAND v. COMMONWEALTH of Virginia. Record

Page 628

446 S.E.2d 628

18 Va.App. 706

Wayman Jesse GARLAND v. COMMONWEALTH of Virginia.

Record No. 0852-93-2.

Court of Appeals of Virginia.

July 26, 1994.

Robert P. Geary, Richmond, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BENTON and WILLIS, JJ., and COLE, Senior Judge.

WILLIS, Judge.

On appeal from his conviction of larceny from the person in violation of Code § 18.2-95, Wayman Jesse Garland contends that the evidence was insufficient to support his conviction. We disagree and affirm the judgment of the trial court.

On December 10, 1992, Charles Williams, manager of a Golden Skillet restaurant in Henrico County, noticed a vehicle without a rear license plate parked in his restaurant's parking lot. Fearing a possible robbery, Williams watched the customers and noticed Garland standing at a cash register. Garland stood there for "five minutes or so" without ordering.

Meanwhile, Angeline McDougal operated the cash register. As she opened the register to complete a sale, Garland reached over the countertop and took money out of the open cash drawer. While doing so, he stood within two feet, but reached to within inches, of Ms. McDougal, who stood just to the side of the cash register and across the countertop from Garland. He grabbed a handful of cash and ran from the restaurant. Ms. McDougal was frightened.

Police officers apprehended Garland a short distance from the restaurant. A search of his person revealed "a handful[ ] of various denominations of bills," totaling sixty to seventy dollars in his pants pocket.

Code § 18.2-95 provides, in pertinent part:

Any person who (1) Commits larceny from the person of another of money or other thing of value of $5 or more ... shall be deemed guilty of grand larceny [punishable as a felony].

Code § 18.2-96 provides, in pertinent part:

Any person who:

2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $200 ... shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.

On appeal, Garland contends that he committed only petit larceny, not larceny from the person. He argues that Code § 18.2-95 must be construed strictly, that "from the person" means from direct physical contact with the victim and is not satisfied by mere proximity of the stolen property to the victim. He argues, further, that larceny is based upon trespass, that larceny from the person requires commission of a trespass against the victim's person, and that he committed no trespass against the person of Ms. McDougal. We find these arguments unpersuasive.

In Johnson v. Commonwealth, 65 Va. (24 Gratt.) 555 (1873), the accused took money from the victim's hand. This was held to constitute larceny from the person. Numerous cases have held removal of property from the custody and control of the victim, albeit not from personal physical contact, sufficient to satisfy the theft requirement for robbery. However, robbery embraces the taking of the property of another, from his person or in his presence. Crawford v. Commonwealth, 217 Va. 595, 597, 231 S.E.2d 309, 310 (1977) (emphasis added). Virginia has not addressed heretofore whether the "from the person" requirement is satisfied other than by removal of the stolen property from direct physical contact with the victim. However, the majority of decisions from other jurisdictions have held that direct physical contact is not required. See James O. Pearson, Jr., Annotation, What Constitutes Larceny "From A Person", 74 A.L.R.3d 271 (1976).

In Commonwealth v. Subilosky, 352 Mass. 153, 224 N.E.2d 197 (1967), the accused was charged with larceny from the person of Lombardi, acting manager of a bank, who was in the banking room when the theft occurred. The evidence showed that the stolen money was taken from cash drawers for which two other tellers were responsible. Upholding Subilosky's conviction for larceny from the person of Lombardi, the Supreme Judicial Court of Massachusetts said:

The funds in the bank were under Lombardi's protection; hence the essential elements of the crime of larceny from the person have been shown.

Id. at 166, 224 N.E.2d at 206.

In State v. Blow, 132 N.J.Super. 487, 334 A.2d 341, cert. denied, 68 N.J. 152, 343 A.2d 440 (1975), the accused stole money from under the driver's seat of a car being operated by the victim. Affirming Blow's conviction of larceny from the person, the Superior Court of New Jersey, Appellate Division, said:

The definition of "from the person" must, of necessity, limit the area within which larceny will be punished as a high misdemeanor. However, we do not agree that the Legislature intended the phrase "from the person" to mean from the physical person of the victim. Rather, we are of the view that to constitute larceny "from the person" it is sufficient if the property is taken while in his possession and immediate presence.

Id. at 490, 334 A.2d at 343.

In In re Welfare of D.D.S., 396 N.W.2d 831 (Minn.1986), the Supreme Court of Minnesota upheld a larceny from the person conviction based on theft of property "not actually on the person of another but only in the other's presence." The Court said:

At common law property was stolen "from the person" of another even if it was only "in the presence" of the person at the time it was stolen.... "Property is stolen 'from the person' if it was under the protection of the person ... although not actually 'attached' to him.... As said by Coke in the 1600's: 'for that which is taken in his presence, is in law taken from his person.' "

Id. at 832.

State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991), involved a situation similar to the case before us. The defendant purchased some candy. When the store clerk opened the cash register to make change, the defendant reached into the cash drawer, took money, and fled the store. Affirming his conviction for larceny from the person, the Supreme Court of North Carolina said:

The General Assembly of North Carolina has declared that so much of the common law as has not been abrogated or repealed by statute or become obsolete is in full force and effect in this state.

At common law, "Larciny [sic] from the person is either by privately stealing; or by open and violent assault, which is usually called robbery." ... At common law, larceny from the person differs from robbery in that larceny from the person lacks the requirement that the victim be put in fear.... Larceny from the person forms a middle ground in the common law between the "private" stealing most commonly associated with larceny, and the taking by force and violence commonly associated with robbery.

Taken in the context of the foregoing common law principles, "[p]roperty is stolen 'from the person,' if it was under the protection of the person at the time.... [P]roperty may be under the protection of the person although not actually 'attached' to him."

Id. at 316-18, 401 S.E.2d at 364-65 (citations omitted).

It is seen from the foregoing authorities that the concept of larceny from the person recognizes an enhanced societal concern for conduct that implicates at least a potential for personal assault, conduct that involves the person of the victim and jeopardizes his personal security. We find this concept to be sound. Thus, we hold that larceny from the person embraces not only theft of property from physical contact with the victim, but also theft of property that is in the victim's possession and within his immediate custody and control. See Roger D. Groot, Criminal Offenses and Defenses in Virginia (3d ed. 1994), p. 301, Larceny and Receiving (B).

Garland stole money from Ms. McDougal's possession. At the time of the theft, the money was in her immediate custody and control. Indeed, at the time of the theft, Ms. McDougal was in the process of handling the money. Garland's act frightened Ms. McDougal. Although Garland did not accomplish the theft through the agency of assault or intimidation, his conduct was nonetheless of an assaultive nature, such as to constitute a constructive trespass upon the person of Ms. McDougal. We hold that Garland's theft of the money under those circumstances constituted larceny from Ms. McDougal's person.

The judgment of the trial court is affirmed.

Affirmed.

BENTON, Judge, dissenting.

Larceny from the person was first distinguished from simple larceny in the sixteenth century, James O. Pearson, Jr., Annotation, What Constitutes Larceny "From A Person," 74 A.L.R.3d 271, § 2[b] (1976), when by an act of the English Parliament, larceny from the person was "debarred of the benefit of clergy," 5 Blackstone's Commentaries 241 (St. George Tucker ed., 1803). In a footnote to Blackstone's discussion of larceny against the person and the English statute which first distinguished that offense from simple larceny, Tucker observed that that statute was "not in force in Virginia." Id. at 241 n. 10. In that footnote, Tucker refers the reader to a footnote earlier in the volume which reads in pertinent part as follows:

All statutory offenses and penalties whatsoever, treated of in the [Blackstone] commentaries, as offenses, against the laws of England, are, therefore, to be regarded only as offenses in that kingdom, and, not as having any existence either in the Commonwealth of Virginia, or under the federal government, unless made such by the legislature of the Commonwealth, or of the United States.

Id. at 33 n. 9. Therefore, to the extent that larceny from the person is a crime in Virginia, it is so by virtue of legislative statute and does not trace its roots to the common law. See also Pearson, What Constitutes Larceny "From A Person" 74 A.L.R.3d at 274, § 1[a]. Simply put, larceny from the person is a statutory offense in Virginia.

Several well known principles of statutory construction govern our construction of Code § 18.2-95. "When the...