Osborne v. State, 149
| Decision Date | 29 April 1968 |
| Docket Number | No. 149,149 |
| Citation | 241 A.2d 171,4 Md.App. 57 |
| Parties | Jerome OSBORNE v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
James W. Murphy, Baltimore, for appellant.
Martin M. Mrozinski, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and John H. Lewin, Jr., State's Atty., and Asst. State's Atty., for Baltimore City, respectively, on brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Appellant was charged in the Criminal Court of Baltimore under a five-count indictment with robbery, assault with intent to rob, common law assault, larceny, and receiving stolen goods. At the trial before the court sitting without a jury, the State produced two witnesses-the victim, Dallas Wyatt, and Ebie Sawyer, a self admitted participant in the crime. The victim testified that four colored boys came up behind him on the street, threw a coat over his head, hit him with a club, cut into his clothing, and removed his wallet containing $41.00. He was unable to identify any of the participants in the crime. Sawyer, the accomplice, testified that Jerome Hill and Michael Gray were also participants in the crime; that Hill and Gray each grabbed the victim's coat and threw it over his head; that he, Sawyer, struck the victim over the head; that Gray went through the victim's pocket, extracted his wallet, and handed it to appellant who was standing at the victim's side; and that they ran from the scene of the crime when the police appeared, at which time the appellant tossed the victim's wallet on the roof of a house. At the end of the State's case, the court granted the appellant's motion for judgment of acquittal on the counts charging assault with intent to rob, assault, and larceny, and thereafter entered a not guilty verdict on the robbery count. The court found appellant guilty as a receiver of stolen goods and sentenced him to three years imprisonment.
Appellant contends on this appeal that the State's evidence showed that he was a principal in the robbery and, accordingly the court erred in convicting him as a receiver of stolen goods. He relies upon the rule that one who is himself a principal thief cannot be found guilty of criminally receiving the thing stolen, for the reason that he cannot receive from himself.
Robbery is larceny from the person, accompanied by violence or putting in fear. Harrison v. State, 3 Md.App. 148, 238 A.2d 153. More specifically, to constitute robbery, the property must, as in larceny, be both taken and carried away, so that an asportation of the stolen property, as well as a trespass, would appear to be indispensable elements of the offense. To constitute an asportation, the robber, like the thief in larceny, must acquire complete control of the property at least for an instant, but the slightest asportation is sufficient to satisfy that element of the offense. Clark and Marshall on Crimes (6th Edition), § 12.12; Perkins on Criminal Law, pp. 236-240. We think it clear beyond any question that, like the thief in a larceny, the principal in a robbery who actually takes and carries away the property from the victim cannot be convicted of the crime of receiving the property stolen. See 45 Am.Jur. Receiving Stolen Property, § 10; Clark and Marshall on Crimes, § 12.37; Perkins on Criminal Law, p. 275; Wharton's Criminal Law and Procedure (Anderson Edition), Vol. 2, § 576. When one accused of receiving stolen property is a mere aider or abetter in the commission of the robbery, other than an accessory before or after the fact, the decisions are in conflict as to whether the circumstances can ever be such that he can be convicted of receiving the property stolen. The inquiry in such cases would appear to be whether the participation in the robbery by one accused of receiving the goods is of such character and extent as to make the receiving a part of the theft itself, or whether the receiving is, under the circumstances, so distinct as to constitute the separate offense of receiving stolen property. See the cases collected in the Annotation at 136 A.L.R. 1087, particularly at pp. 1093-1095 and 1101-1103. In this connection, it has been held, in larceny cases, that if the receiving takes place subsequent to and after the...
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