Loker v. State

• Decision Date: 27 September 1968
• Docket Number: No. 323,323
• Citation: 250 Md. 677,245 A.2d 814
• Parties: William M. LOKER, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 677

250 Md. 677

245 A.2d 814

William M. LOKER, Jr. v. STATE of Maryland.

No. 323.

Court of Appeals of Maryland.

Sept. 27, 1968.

James E. Hogan, Rockville (Arthur J. Hilland, Rockville, on the brief), for appellant.

Frank A. DeCosta, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Joseph D. Weiner, State's Atty., for St. Mary's County, Leonardtown, on the brief), for appellee.

Before HAMMOND, C. J., BARNES, SINGLEY and SMITH, JJ., THOMAS J. KEATING, Jr., ^* IRVINE H. RUTLEDGE, and ROBERT E. CLAPP, Jr., Special Judges.

ROBERT E. CLAPP, Jr., Special Judge.

This case is here on writ of certiorari to the Court of Special Appeals issued pursuant to Sec. 21A of Art. 5 of the Annotated Code of Maryland (1968 Repl. Vol.). On May 24, 1966, the appellant was convicted by a jury in the Circuit Court for St.

Mary's County on the second and fourth counts of an indictment, which counts, respectively, charged a violation of Art. 27, Sec. 129 of the Code (embezzlement by a clerk, servant, or agent or officer); and the commission of the crime of grand larceny. He was sentenced to imprisonment for a term of five (5) years for each offense, the sentences to run concurrently, and an appeal was noted to this Court and received Docket No. 380-September Term, 1966. After the brief for the appellant had been here filed, the case was transferred to the then newly created Court of Special Appeals which affirmed the judgment. Loker v. State, 2 Md.App. 1, 233 A.2d 342.

Following this affirmance a petition for the writ of certiorari was filed in this Court setting forth grounds hereinafter specified in detail and it was ordered on the 16th day of November, 1967, that the writ should issue and that the case be transferred to the regular docket as No. 323-September Term, 1967.

In his petition, the appellant raises the following issues:

I

The writ should be issued so that this Court may review that aspect of the Special Court's decision which brushed aside petitioner's showing that the indicting grand jury was not selected in the manner prescribed by the statutes of this State.

II

The writ should be issued in this case because the Special Court has disregarded the ruling of this Court in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965); and State v. Madison, 240 Md. 265, 213 A.2d 880 (1965).

III

The writ should be issued to enable this Court to review the ruling of the Special Court to the effect that a public official who embezzles public funds can be prosecuted under either the general embezzlement statute or the statute condemning embezzlement by a public official.

IV

The writ should be issued so that this Court can review the ruling of the Special Court to the effect that a public official who

removes public funds from a safe in his possession commits larceny rather than embezzlement.

V

The writ should be issued so that this Court can review the decision of the Special Court that the so-called 'less cash' transactions constituted a crime against the Town, and not against the two banks involved.

VI

The writ should be issued so that this Court can review the conclusion of the Special Court that the State met its burden, as to the larceny conviction, of adducing circumstantial evidence which, 'taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.'

THE MOTION TO DISMISS THE INDICTMENT

Appellant's issues I and II were raised in the Circuit Court by a motion to dismiss the indictment, which motion was overruled, after hearing and before trial on a not guilty plea pursuant to Maryland Rule 725. They were fully and adequately dealt with by the Court of Special Appeals which found no error in the denial of the motion to dismiss in which ruling we concur for the reasons stated by that Court. 2 Md.App. 5-16, 233 A.2d 346-352. That Court neither brushed aside the contentions of the appellant nor disregarded the rulings of this Court.

THE FACTS

In view of the careful and detailed summary of the facts upon which this prosecution is based, found in the opinion of the Court of Special Appeals, 2 Md.App. 16-20, 233 A.2d 352-354, we deem it unnecessary to repeat them here and shall proceed to a discussion of the remaining issues raised by the petition for the writ of certiorari.

THE CONVICTION OF EMBEZZLEMENT

(a) The statutes involved.

The appellant contends under his issue III that he, as treasurer of the Town of Leonardtown, was a public officer within the meaning of Sec. 138 of Art. 27 of the Code (embezzlement by elected or appointed public officers required by law to account) and, therefore, could not be prosecuted and convicted under Sec. 129 of Art. 27 proscribing embezzlement by cashiers, servants, agents, officers or clerks to any body corporate. The Court of Special Appeals held that the appellant was a public officer within the meaning of Sec. 138 but that he could, also, be tried and convicted under Sec. 129. We agree with the affirmance of the conviction under Sec. 129 but not for the reasons stated by the Court of Special Appeals.

For the purposes of this opinion, we accept, without deciding, the assumption of the parties and of the Court of Special Appeals that the appellant was a public officer within the meaning of Sec. 138 and proceed to a discussion of his contention that public officers may only be prosecuted under that section and not under Sec. 129.

An examination of the legislative and judicial history of the two sections demonstrates the fallacy of this contention. Sec. 129 was first adopted by Chapter 162 of the Acts of 1820 and punished embezzlement by a 'cashier, servant, agent or clerk * * * to any person or persons whosoever, or to any body corporate or politic.' Here, it should be noted that officers of neither public nor private corporations were subject to prosecution thereunder.

Sec. 138 relating to embezzlement by the described public officers was first enacted by Chapter 196 of the Acts of 1854 (erroneously designated in the 1967 Replacement Volume of the 1957 Code as Ch. 196 of the Acts of 1884). Obviously, at that time there was neither conflict nor inconsistency between the two Acts, because the Act of 1820 had no application to public officers of bodies politic as distinguished from cashiers, servants, agents or clerks.

Both Acts were codified as Secs. 49 and 50 of Art. 30 of the Public General Laws of 1860 in which the phrase in the 1820 Act, 'any body corporate or politic' appears as 'any body corporate'. This Code was adopted by the General Assembly by Chapter 1 of the Acts of 1860 in lieu of and as a substitute for all the Public General Laws and the Public Local Laws, heretofore passed by the Legislature of Maryland. Appellant therefore, argues that this change in phraseology was intended to eliminate bodies politic from coverage under Sec. 129.

This contention is answered by the decision of our predecessors in State v. Denton, 74 Md. 517, 22 A. 305 and Denton v. State, 77 Md. 527, 26 A. 1022, holding that embezzlement by a clerk to the county commissioners is punishable under that section. In the former it was contended, just as here, that the appellant was a public officer, not subject to prosecution under Sec. 75 (now Sec. 129) although it was not conceded that he was subject to prosecution under Sec. 80 (now Sec. 138). In holding that he was not a public officer, but, as clerk, was subject to prosecution under present Sec. 129, the Court said, at page 521 of 74 Md., at page 306 of 22 A., 'The fact that he is a clerk to a public corporation does not put him outside of the seventy-fifth section, (now Sec. 129), because that section is broad enough to embrace public as well as private corporations.'

It should be noted that at the time of that decision in 1891, Sec. 129 did not include officers as distinguished from cashiers, servants, agents or clerks. Thus the reason is apparent why the State Treasurer, indicted under Sec. 138, could not be charged under Section 129. See State v. Archer, 73 Md. 44, 20 A. 172 (1890).

With this background in mind, we turn to a consideration of Chapter 329 of the Acts of 1914. That Act amended Sec. 129 to include officers of any body corporate among those within its purview. In view of this Court's decision in Denton, it is apparent that officers of public as well as private corporations were intended by the Legislature to be included in the section.

There is no dispute, nor could there be in view of Sec. 94 of Art. 19 of the Code of Public Local Laws (Flack, 1930) that the Commissioners of Leonardtown are a public body corporate. We, therefore, hold that the appellant, even though assumed to be a public officer was subject to prosecution under Sec. 129. It is unnecessary to decide whether he, also, could be prosecuted under Sec. 138.

(b) The alleged variance.

As his fifth issue under the embezzlement conviction, the appellant contends that there is a fatal variance between the allegations of the second count of the indictment and the proof. This second count alleges embezzlement of United States Currency, 'the property of the said Commissioners of Leonardtown.'

There was evidence that the appellant, from time to time, received checks on account of the Town for taxes, water rents, etc., that these checks were restrictively endorsed for deposit only to the account of the Town and listed on a deposit slip for deposit in the Town's accounts. On the deposit slip the appellant designated the total amount of the checks with the notation 'less cash' and upon presenting the deposit to the bank received, in cash the amount so designated by him. Only the difference between the total amount of the checks and the cash received by him was credited to the Town's accounts. There was testimony that in some instances, the appellant asked a teller receiving deposits in this fashion to give him larger bills and said he was going to put them in the other bank. In...