Pirner v. State

• Court: Maryland Court of Appeals
• Writing for the Court: WILNER
• Citation: Pirner v. State, 411 A.2d 135, 45 Md.App. 50 (Md. App. 1980)
• Decision Date: 14 February 1980
• Docket Number: No. 696,696
• Parties: Kelly James PIRNER v. STATE of Maryland.

Page 50

45 Md.App. 50

411 A.2d 135

Kelly James PIRNER v. STATE of Maryland.

No. 696.

Court of Special Appeals of Maryland.

Feb. 14, 1980.

Thomas A. Pavlinic, Glen Burnie, for appellant.

Paul T. Cuzmanes, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Robert C. Nalley, State's Atty. for Charles County, and Richard B. Starkey, Deputy State's Atty. for Charles County on the brief, for appellee.

Argued before THOMPSON, WILNER and MacDANIEL, JJ.

WILNER, Judge.

On the evening of June 24, 1978, someone broke into the County Prescription Shop, Inc., a drug store in Charles County, and stole a considerable amount of prescription drugs, some of which, as will be seen, were classified as controlled dangerous substances. Nearly four months later on October 14, 1978, to be exact officers of the Charles County Sheriff's Department, having some reason to believe that appellant was in possession of at least a part of the stolen drugs, arrested him and searched his automobile. Both the arrest and the search were without benefit of a warrant. In a duffle bag located under the carpet behind the passenger's seat of the car, the officers found 752 capsules of Darvon which, the record shows, had been taken from the County Prescription Shop, Inc., in the course of the June 24 breaking.

As a result of all this, appellant and a co-defendant were charged in a six-count indictment with various larceny and unlawful possession offenses. Following the denial of his motion to suppress the evidence seized from his automobile, appellant worked out a form of "plea agreement" with the State in which (1) he maintained his not guilty plea to all six counts, (2) the State agreed to proceed upon the third count only, all evidence to be by an agreed statement of facts, (3) the State would remain mute as to sentence, and (4) after sentencing on the third count, the State would Nol pros the other five counts. ¹ All of this was done; and, upon the statement of facts read into the record by the State's Attorney, appellant was convicted on the third count. After considering a pre-sentence investigation report, the court sentenced him to 90 days in the county jail.

In this appeal, appellant makes two claims: one, that the court erred in denying his suppression motion and, two, that the third count, in effect, failed to state a crime. Though arguing vigorously that the search was valid, the State has seen fit to confess error with respect to the second issue and has urged that we reverse the conviction on that account. It is commendable for the Attorney General to confess error when he believes that a mistake affecting a citizen's life, liberty, or property has been made; and this is a proper case for such a confession. It seems, however, that he has confessed to the wrong error. In our judgment, the third count of the indictment does state a crime. It is the search that was improper, and it is for that reason that we must reverse the conviction.

(1) The Third Count

Count three of the indictment charged appellant with the "unauthorized use" of the stolen prescription drugs in violation of Md.Ann. Code art. 27, § 349. Specifically, the count recited that appellant "against the will and consent of County Prescription Shop, Inc., a Maryland corporation, unlawfully did wilfully take and carry away: assorted prescriptive drugs and pharmaceutical products, to include containers of Darvon Compound 65 (propoxyphene hydrochloride), of the goods, chattels, monies and properties of County Prescription Shop, Inc. . . . contrary to Article 27, Section 349 of the Annotated Code of Maryland . . . ."

Article 27, § 349 states, in relevant part:

"Any person . . . who shall enter, or being upon the premises of any other person . . . shall, against the will and consent of said person . . . wilfully take and carry away any horse, mare, colt, gelding, mule, ass, sheep, hog, ox or cow, or any carriage, wagon, buggy, cart . . . 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 . . . Any of the above-enumerated property at whatsoever place the same may be found, shall upon conviction thereof . . . be adjudged guilty of a misdemeanor . . . ." (Emphasis supplied.)

Nowhere in the body of § 349 is the taking of prescription drugs specifically proscribed, yet that is what count three of the indictment charged, and that is what the evidence showed appellant did. Appellant did not challenge the sufficiency of count three until after his conviction thereon pursuant to his "plea agreement"; indeed, he first raised the issue at his sentencing hearing. This is not fatal to his complaint here, however, for if § 349 does not apply to the taking of prescription drugs, count three, as written, fails to charge a crime. Such a defect would be jurisdictional in nature and could therefore be raised beyond the time otherwise required by Maryland Rule 736. See Baker v. State, 6 Md.App. 148, 250 A.2d 677 (1969); Andresen v. State, 24 Md.App. 128, 153, 331 A.2d 78 (1975), Cert. den. 274 Md. 725, Aff'd 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627.

The precise question at issue is whether the phrase "or property whatsoever," which would ordinarily include prescription drugs, is, by application of the doctrine of Ejusdem generis, so limited to the types and classes of property particularized in the language preceding that phrase in the statute as to exclude anything else. Appellant and the Attorney General believe that it is; the court below thought otherwise.

Appellant's argument proceeds primarily from certain observations made by the Court of Appeals in Wright v. Sas, 187 Md. 507, 50 A.2d 809 (1947), and by this Court in Robinson v. State, 17 Md.App. 451, 302 A.2d 659 (1973), as to the nexus or relationship between § 349 an "unauthorized use" offense and § 348, a much older larceny statute that was originally designed to deal with horse thieves. Both Courts have said that the two statutes are "closely related" (Wright, 187 Md. at 510, 50 A.2d 809) or that § 349 is "similar to" or "parallels" § 348 "in all respects." Robinson, 17 Md.App. at 456, 302 A.2d 659; Henry v. State, 20 Md.App. 296, 299, 315 A.2d 797 (1974). From these statements, and from the historical predicate offered for them, appellant suggests that the phrase "or property whatsoever" as it appears in § 349 cannot be given any broader meaning or effect than the particular types of personal property mentioned in § 348 or § 349.

As was determined in Wright and Robinson, § 348, in its original 1744 enactment by the Colonial Assembly, followed an even older common law practice of dealing more severely with horse thieves than with purloiners of other types of personalty. A convicted horse thief, both in England and under the 1744 statute, was denied benefit of clergy, making death on the gallows a virtual certainty. Over the years, however, the Legislature amended the statute in two significant respects: it expanded the scope of the enactment to include within it the theft of other types of animals than horses and it reduced, both absolutely and comparatively, the severity of the punishment. As of 1880, the statute, then codified as § 47 of art. 72 (1878 Code):

(1) applied to the felonious stealing of a horse, mare, gelding, colt, ass, or mule; and

(2) in addition to requiring restoration of the animal, subjected the offender to imprisonment for two to fourteen years. The penalty for grand larceny generally (§ 38) was restoration plus imprisonment for one to fifteen years not a whole lot of difference.

According to the Journal of the House of Delegates (1880 Session), § 349 originated from an order adopted on February 25, 1880, granting leave to the House Judiciary Committee to introduce a bill entitled "an Act to add an additional section to Article 30, of the Code of Public General Laws, to prevent dog-stealing." ² It does not appear that a bill dealing with dog stealing was ever introduced, however. What was submitted by the Judiciary Committee and read for the first time on March 2, 1880, was "A bill entitled an Act to add an additional section to Article 30, of the Code of Public General Laws, entitled 'Crimes and Punishments.' " This bill, which was to pass the House without amendment, made it a misdemeanor to enter the premises of another person and, against the will and consent of that person, to take away a "Horse, mare, colt, gelding, mule, ass, ox, or cow, or any carriage, wagon, buggy, cart, or any other vehicle or property whatsoever." (Emphasis supplied.)

The Senate added a number of amendments to the bill, one of which was the inclusion of sheep and hogs in the list of animals covered. See Senate Journal (1880), pp. 573, 574. The House concurred in the Senate amendments, and that is how the bill passed and became law as Chapter 164, Acts of 1880. As enacted, the bill was considerably broader in scope than the 1744 horse-stealing law as then current. It was not restricted to animals, for one thing, but included all manner of carts and vehicles I. e., inanimate objects; and it also expanded the list of animals to include oxen, cows, sheep, and hogs. These, of course, were not animals normally used for human transportation, as were all of the animals included in the 1744 statute; their use was as livestock or, in the case of oxen, as work animals.

It is thus clear that, although the two laws (or offenses) were closely related and parallel in Some respects, the distinction between them was greater than merely the requirement in one of Animus furandi (although that was, of course, itself a most important difference). The broader scope of the newer act has remained intact since its adoption. Indeed, the only significant change to either statute that is relevant to this case came in 1918 when the General Assembly added "motor vehicle as defined in the laws...