Henry v. State, No. 42

• Court: Court of Appeals of Maryland
• Writing for the Court: SMITH
• Citation: 328 A.2d 293,273 Md. 131
• Parties: Tyrone Steven HENRY v. STATE of Maryland.
• Decision Date: 25 November 1974
• Docket Number: No. 42

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273 Md. 131 328 A.2d 293 Tyrone Steven HENRY
v.
STATE of Maryland. No. 42. Court of Appeals of Maryland. Nov. 25, 1974.

[328 A.2d 295]

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Robert W. Baker, Assigned Public Defender, and Carl Anthony Maio, Asst. Public Defender, Baltimore, for appellant.

John P. Stafford, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

Petitioner, Tyrone Steven Henry (Henry), was found guilty by a Baltimore City jury of larceny of an automobile and the receipt of $16 in stolen cash. The same jury found him not guilty of the murder of Benjamin Rubin, assault with intent to murder Shirley Rubin, and the armed robbery of Shirley Rubin. The Court of Special Appeals affirmed in Henry v. State, 20 Md.App. 296, 315 A.2d 797 (1974). In granting Henry's petition for the writ of certiorari we specified 'that review (should) be on the questions whether

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the verdict of guilty as to the first count of Indictment No. 17203163 was invalid, and whether the sentence in each indictment was unconstitutionally imposed.'

The challenge to the validity of the verdict of guilty on the first count of Indictment No. 17203163 is founded on two contentions. The first is that the jury rendered inconsistent verdicts when it initially returned a verdict of guilty on the first count (larceny of an automobile) and the third count (larceny of the use or unauthorized use of the same vehicle). Secondly, Henry claims that it was improper to permit that jury to be reassembled, moments after its discharge, and then to render verdicts of guilty on the first count and not guilty on the third count. Further facts relative to the reassembling of the jury will be developed in the process of this opinion. The Court of Special Appeals resolved these contentions unfavorably to Henry, stating:

'We note that appellant called the judge's attention to 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.'

Id. at 298-299, 315 A.2d at 799.

The contention relative to sentence, on which the Court of Special Appeals was divided 2-1, is that imposition of consecutive sentences of 15 years for larceny of the automobile and 3 years for receiving stolen goods, the maximum penalty permitted in each instance by statute, was unconstitutional. ¹

[328 A.2d 296]

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We shall affirm the convictions. On the issue of 'whether the verdict of guilty as to the first count of Indictment No. 17203163 was invalid,' however, our reasoning will not follow that of the Court of Special Appeals, since we hold that unauthorized use or larceny of the use is not a 'lesser included offense within (the) crime of larceny' and, thus, there was no merger in this case. I

Merger or Inconsistent Verdicts

Henry was charged with larceny of an automobile and with unauthorized use or larceny of the use of the same vehicle. These two crimes are covered by Maryland Code (1957, 1971 Repl.Vol.) Art. 27, §§ 348 and 349. The first section, unchanged since 1809, except for the 1918 addition relative to motor vehicles, provides in pertinent part:

'Every person convicted of feloniously stealing, taking and carrying away any horse . . . or motor vehicle . . . shall restore the horse . . . or motor vehicle stolen, to the owner thereof, or shall pay to him the full value thereof, and shall be sentenced to the penitentiary for not less than two nor more than fourteen years.'

The history of § 349 was traced by Judge Markell for the Court in Wright v. Sas, 187 Md. 507, 510-511, 50 A.2d 809

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(1947), beginning with its original enactment by Chapter 164 of the Acts of 1880 relative to the larceny of the use of horses or vehicles. It provides in pertinent part:

'Any person . . . who shall enter, or being upon the premises of any other person . . . shall, against the will and consent of said person . . . or their agents, wilfully take and carry away any horse, . . . or cow, or any carriage, . . . or any other vehicle including motor vehicle as defined in the laws of this State relating to such, or property whatsoever, or take and carry away out of the custody or use of any person . . . or his . . . agents, any of the above-enumerated property at whatsoever place the same may be found, shall upon conviction thereof . . . be adjudged guilty of a misdemeanor, . . . although it may appear from the evidence that such person . . . took and carried away the property or any portion of the same enumerated in this section, for his . . . present use, and not with the intent of appropriating or converting the same. . . .' (Emphasis added.)

In Veney v. State, 227 Md. 608, 177 A.2d 883 (1962), Judge Prescott reviewed the authorities for the Court, stating that '(d)ecisions and text-writers use various methods and formulae for testing whether one criminal episode merges and extinguishes another, but, when analyzed, they, in general, boil down to the rule' that 'if the lesser felony (or offense) is a necessary ingredient of the other, a conviction of one will bar a prosecution for the other [328 A.2d 297] . . ..' To like effect see Green v. State, 243 Md. 75, 80-81, 220 A.2d 131 (1966), and Bennett v. State, 229 Md. 208, 182 A.2d 815 (1962).

This case is controlled by the holdings in Veney and Ballard v. State, 236 Md. 579, 204 A.2d 672 (1964). In Ballard, as Judge Horney put it for the Court:

'Robert Ballard and Glenn Lewis were jointly charged in a three-count indictment with the larceny, receiving and unauthorized use of an automobile. Lewis pled guilty to the unauthorized

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use of it, and Ballard was convicted of the larceny thereof on the uncorroborated testimony of Lewis. The critical question presented on this appeal is whether Lewis was an accomplice of Ballard.' Id. at 580, 204 A.2d at 672.

A motion for judgment of acquittal was made by Ballard 'based on the theory that the codefendant Lewis was an accomplice and that there was no corroboration of his testimony.' Accordingly, the Court was placed squarely in the position of having to determine '(w)hether or not Lewis (who pled guilty of unauthorized use) was an accomplice of Ballard,' which determination 'depend(ed) on whether Lewis could have been punished for the crime of larceny for which both were indicted.' This Court held that he could not, stating:

'No cases were cited to us, nor have we found any, holding that one who is guilty of the unauthorized use of a motor vehicle may also be said to have been a participant in the larceny of the same vehicle. On the contrary, the cases in this state as well as those in other states recognize that the two offenses are separate and distinct and that one cannot be convicted of both larceny and unauthorized use. See Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963); Anello v. State, 20u Md. 164, 93 A.2d 71 (1952); People v. Ramistella, (306 N.Y. 379, 385,) 118 N.E.2d 566 (1954); People v. Tellez, (32 Cal.App.2d 217, 219,) 89 P.2d 451 (1939); Eastway v. State, (189 Wis. 56, 58,) 206 N.W. 879 (1926). See also 8A Blashfield, Cyclopedia of Automobile Law and Practice, § 5612.' Id. at 581-582, 204 A.2d at 673.

Similar views are found in McCarson v. State, 8 Md.App. 20, 257 A.2d 471 (1969); Ashby v. State, 24 Ala.App. 466, 467, 136 So. 483 (1931); State v. Corrolla, 113 Conn. 103, 154 A. 152, 153 (1931); Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971); Leap v. State, 189 Ind. 538, 127 N.E. 274 (1920); and Slater v. Commonwealth, 179 Va. 264, 267, 18 S.E.2d 909

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(1942). See also Annot., 9 A.L.R.3d 633 (1966). As a matter of fact, in McCarson Judge Orth said in a footnote for the Court of Special Appeals:

'(A) conviction of larceny of an automobile is inconsistent with a conviction of unauthorized use of that automobile. An element of larceny of an automobile is the intent to deprive the owner of his property permanently while as to unauthorized use the intent is to deprive the owner of his custody or use of his property temporarily without intent to steal it. Anderson v. State, 3 Md.App. 85, 237 A.2d 813; Johnson v. State, 2 Md.App. 486, 236 A.2d 41. It is patent that an automobile cannot be taken with the intent both to steal it and not to steal it.' Id., at 22, of 8 Md.App. at 472 of 257 A.2d

The reasoning behind these holdings is well expressed in Sandoval where the Colorado court said:

'From the foregoing discussion, it appears clear that an essential element of the crime of theft is the formation of an intent to permanently deprive the owner of his property. On the other hand, the crime of joyriding requires as an element of proof an intent to just temporarily deprive the owner of his property. The intent to permanently deprive is not a progression of an intent to temporarily deprive. To state it another way, the joyriding intent does not mature into the theft intent. A culprit who takes the [328 A.2d 298] automobile of another has either the intent to permanently deprive or the intent to temporarily deprive. He cannot have both intents because the one is exclusive of the other. Therefore, it follows that the greater offense of theft of an automobile does not include the element of intent to temporarily deprive. Under the rule of (People v.) Futamata, (140 Colo. 233, 343 P.2d 1058 (1959)), before an offense can be classified as a lesser included offense of a greater crime, the...