State v. Gover

• Citation: 298 A.2d 378,267 Md. 602
• Decision Date: 09 January 1973
• Docket Number: No. 124,124
• Parties: STATE of Maryland v. Walter F. GOVER, Jr.
• Court: Court of Appeals of Maryland

Page 602

267 Md. 602

298 A.2d 378

STATE of Maryland v. Walter F. GOVER, Jr.

No. 124.

Court of Appeals of Maryland.

Jan. 9, 1973.

Arrie W. Davis, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, Samuel A. Green, Jr., State's Atty., and Stuart E. Hirsch, Asst. State's Atty. for Baltimore County, respectively, Towson, on the brief), for appellant.

Edward C. Covahey, Jr. and William F. C. Marlow, Jr., Lutherville, for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

DIGGES, Judge.

We consider in this case whether voluntary intoxication can be a defense to an indictment charging robbery with a deadly weapon.

November 12, 1970 began for Walter F. (Buddy) Gover when he awoke at 6:00 a. m. feeling the ill effects of the previous night's drinking bout. As a remedy for his hangover, he chose a shot of whiskey from a bottle left from his prior evening's activities. Throughout that day he continued to pursue this remedy by electing to sustain himself with numerous beers, a large amount of whiskey, and eight 'bennies', ¹ rather than eating anything more substantial. Several of his companions during that day, described Gover variously as 'high', 'like he was under the influence of some type of drug', 'like he wouldn't be able to walk when he got out of the car' and 'very drunk'. In any event, there is no dispute that he had, over a two day period, imbibed more than an appreciable amount of alcohol.

At approximately 7:00 p. m. on the evening of the twelfth, Dale Tutor, an off-duty employee of the 7-Eleven store located at 20 Church Lane, Texas, Maryland, arrived at the store in his car and encountered an individual in the parking lot whom he identified as Gover. Because Gover frequented that particular 7-Eleven on a regular basis and was well known by the clerks at the store, Tutor was able to immediately recognize him. As he approached, he noticed that Gover had a pistol pointed in his direction; but, disdaining the firearm, he continued toward his assailant who demanded $35.00. Tutor informed Gover that he had no money and prevailed upon him to holster the gun. Gover, however, apparently felt an urgent need for funds and therefore proclaimed that he would rob the store instead. The two men entered the 7-Eleven store where Tutor attempted to convince the inebriate for fifteen or twenty minutes that as he was well known by the clerk on duty he could not possibly get away with the crime and would be crazy to attempt it. The bandit remained unconvinced and again drew his revolver telling Tutor to give him the cash in the register as well as three packs of Kool cigarettes. Because of the 'little persuasion' of the gun, Tutor complied.

Gover claims that he is unable to recall these rather bizarre events occurring at the store. At trial he admitted that he was well acquainted with Tutor as well as the clerk on duty. And, while he was able to retrace some of his steps earlier that day, after these recollections, he claims his mind is a blank until the evening of Friday, November 13 at approximately 7:30 p. m. when he awoke in the Baltimore County jail.

Following his arrest, the accused was tried and convicted of robbery with a deadly weapon by Judge Raine, sitting without a jury, in the Circuit Court for Baltimore County. In so doing, the trial judge declined to accept the defense's contention that Gover's drunken state could negate the specific intent needed to sustain an armed robbery conviction. Although the judge discussed the defendant's drunkenness and indicated his belief that Gover was quite intoxicated, he made no categorical factual determination as to whether he believed the accused to be intoxicated to such an extent that he was incapable of forming a criminal specific intent. The trial judge apparently felt that it was unnecessary to determine the extent of intoxication since he concluded that voluntary drunkenness, regardless of its degree, cannot serve as a defense so as to excuse an armed robbery charge.

Sobered by the judge's decision, Gover perfected an appeal to the Court of Special Appeals which reversed his conviction. Gover v. State, 15 Md.App. 163, 289 A.2d 601 (1972). That court ruled that as a robbery embraces all of the elements of larceny, and since larceny requires a specific intent to deprive the owner permanently of his property, to sustain a robbery conviction it is necessary to prove an accused has the requisite intent. The Court of Special Appeals concluded that the trial judge committed reversible error when he failed to recognize that the capacity to form the specific intent required for a robbery conviction could be destroyed by the excessive consumption of alcohol. Therefore, the case was remanded for a new trial in which a determination of Gover's ability to form a specific intent could be made. We granted the State's petition for certiorari to review whether voluntary intoxication can be a defense to an armed robbery charge. As we agree with the holding of the Court of Special Appeals, we affirm its judgment.

Since the defendant was convicted of robbery with a deadly weapon, it is appropriate to begin with an examination of the definition of robbery. In Hadder v. State, 238 Md. 341, 354, 209 A.2d 70, 77 (1965) this Court quoted with approval the following definition of robbery which was contained in the instructions of the trial judge:

'Robbery may be defined as the felonious taking and carrying away of the personal property of another from his person . . . by the use of violence or by putting him in fear. The crime, however, is not committed unless there is an intention to deprive the owner permanently of his property or the property of another lawfully in his possession.'

It is clear that there can be no robbery without a larcenous intent. Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958). Therefore, as larceny is an ingredient of robbery, we look to the components of the former to ascertain the requisite mental element of the latter. Larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent. Brown v. State, 236 Md. 505, 204 A.2d 532 (1964); Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963); Putinski v. State, 223 Md. 1, 161 A.2d 117 (1960)....