State v. Greenlaw

• Decision Date: 27 March 1963
• Parties: STATE of Maine v. Paul E. GREENLAW. STATE of Maine v. Thomas J. LAYTE.
• Court: Maine Supreme Court

Page 370

189 A.2d 370

159 Me. 141

STATE of Maine v. Paul E. GREENLAW.

STATE of Maine v. Thomas J. LAYTE.

Supreme Judicial Court of Maine.

March 27, 1963.

Arthur Chapman, Jr., County Atty., Portland, for the State.

Basil A. Latty, Portland, for respondents.

SULLIVAN, Justice.

By separate indictment each respondent was accused of robbery. The same criminal incident was detailed in each accusation and the respondents were jointly tried by jury. Verdicts of guilty were returned. The respondents here prosecute their exceptions to specific instructions rendered to the jury by the presiding Justice, to the refusal of the Justice to direct verdicts of not guilty, and to communicate certain requested instructions to the jury. Respondents appeal from the denial of their motions for new trials.

The indictments charged that at Portland on April 4, A.D.1961 each respondent respectively:

'* * * on one George W. Berry feloniously did make an assault, and by force and violence, One motor vehicle, to wit, a 1959 Ford four-door taxicab color red and yellow, of the value of Eighteen hundred dollars, of the property of Central Cab Company, Inc., a corporation * * * from the person of said George W. Berry feloniously did steal, take and carry away * * *'

The case record affords this narration. On April 4, 1961 the respondents and three male companions had consigned and abandoned themselves to a drinking bout and carouse. They rented a taxicab operated by George W. Berry and paid him the fare for a trip to Biddeford but forthwith altered their plan and instructed Berry to proceed to Westbrook. En route, at the Portland City Hospital Layte voiced a desire to visit a friend and inmate and had Berry stop the cab and turn off the motor. Berry was at the driver's wheel. Greenlaw sat at Berry's right and Layte occupied the other end of the front seat. The other three passengers were in the rear portion of the cab. Greenlaw put his hand into his shirt and pressed something into Berry's ribs, advised Berry that he, Greenlaw, had a gun and demanded Berry's money. Layte left the cab through its right front door, passed in front of the vehicle and opened the left front door. He seized Berry's left arm and put his knee against Berry. Layte's other hand remained in Layte's pocket. He admonished Berry that he, Layte, had a knife, demanded Berry's money, said he was taking the cab and attempted to push Berry over to the middle of the seat. The companions fled out of the back of the cab and disappeared. Greenlaw gripped Berry's shirt. A nurse on the hospital veranda heard the altercation and witnessed the struggle. She yelled. Layte, distracted or alarmed momentarily desisted from his attack on Berry who wrenched himself free from Greenlaw and propelled himself out of the cab. Berry ran into the hospital to notify the police by telephone. Layte accompanied by Greenlaw drove the cab away in the direction of Westbrook. The time was then approximately 12:45 P.M.

Within the hour in Westbrook at a distance of one half mile from Portland City Hospital Layte and Greenlaw were found lying asleep in the snow not far from the parked and empty taxicab.

The taxicab possessed a yellow body and red fenders. Painted upon each side in three inch letters of red was the name, Central Cab Company. The vehicle was designedly a cynosure adapted to attract public gaze and notice. Any prospect of stealing, secreting and marketing it in its conspicuous state must be regarded as highly delusive.

The statute defining and punishing robbery reads as follows:

'Whoever, by force and violence or by putting in fear, feloniously steals and takes from the person of another property that is the subject of larceny is guilty of robbery and shall be punished * * *.' R.S. (1954) c. 130, § 16.

Robbery has been described as:

'* * * It is 'larceny committed by violence from the person of one put in fear'.' State v. Perley, 86 Me. 427, 432, 30 A. 74, 76.

R.S. c. 132, § 1 generically defines larceny and assigns its punishment:

'Whoever steals, takes and carries away, of the property of another, money, goods or chattels, * * * is guilty of larceny; and shall be punished * * *.'

For larceny to obtain the taking of a thing must generally be accompanied by a purpose of deprive the owner or possessor of the chattel permanently.

'In order to constitute a larceny there must be not only a taking and carrying away of the goods of another, but there must also exist contemporaneously the felonious intent, the animus furandi, on the part of the taker, which means a taking without excuse or color of right, with the intent to deprive the owner permanently of his property and all compensation therefor. The felonious intent is the very gist of the offense * * *.' Stanley v. Prince, 118 Me. 360, 364, 108 A. 328, 330.

'* * * This Court in criminal prosecutions and in a libel suit has considered larceny as a carrying away with animus furandi. There must be a felc nious intent to deprive the owner permanently. * * *' Wheeler v. Phoenix Assurance Co., 144 Me. 105, 109, 65 A.2d 10, 12.

'* * * 'A felonious intent' observes Baron Parke, in Regina v. Holloway, 2 Cor. & Kir., 61 E.C.L., 944, 'means to deprive the owner, not temporarily, but permanently of his own property, without color of right or excuse for the act, and to convert it to the taker's use without the consent of the owner.'' State v. Coombs, 55 Me. 477, 480.

'A conviction for larceny will not be sustained unless a felonious intent at the time of the taking is shown. Generally, the intent must be to deprive the owner permanently of the property; merely borrowing property for a temporary use does not constitute larceny. Intent is a jury question.' Underhill's Criminal Evidence, 5th ed., Herrick, Larceny, Vol. 3, P. 1440. See, also, Larceny, 32 Am.Jur., § 37, P. 927; Wharton's Criminal Law, 12th ed., Ruppenthal, Larceny, Intent, Vol. 2, § 1122, P. 1431; Poster v. Andrews, 183 Tenn. 544, 194 S.W.2d 337, 339; Putinski v. State, 223 Md. 1, 161 A.2d 117, 119, 82 A.L.R.2d 859.

The presiding Justice in his instructions to the jury discoursed upon the applicable elements of the inclusive and complex crime of robbery, as follows: (italics supplied)

'* * * You will note from my reading of the statute that in order for a person to be found guilty of robbery, such purson must use force and violence, or place the other person, in this case, George Berry, in fear, and have feloniously stolen and taken from George Berry the automobile described in the indictment, and in the custody of George Berry * * *

'However, if you find that either force and (sic) violence was used, or Berry was put in fear, then there is another element which you must consider, and that is, did the respondents intend to commit a larceny. The intent to commit the crime is an essential element and requires proof on the part of the State * * *

'* * * The respondents say to that: 'No, we are not guilty even though you find that the evidence is sufficient to satisfy you that the elements of force and violence or fear, and of the taking of the automobile, as we were at that particular time in such a state of intoxication as not to be able to form an intent which is a necessary element to the commission of the crime of robbery.' * * *

'If you find, as a matter of fact, the respondents did either use force and violence, or place Berry in fear, and did steal the automobile, with the intent to commit larceny, then the respondents, in order to be excused from the commission of the offense, must satisfy you by a preponderance of the evidence, that is by the weight of the evidence, that they were in that state of intoxication which stripped them of the mental faculties necessary to form an intent * * *

'* * * And if you find that they did take part, or did use force and violence, or fear, then you go on to the next step as to whether they did actually take from another property of value * * *

'* * * if they had that faculty to form an intent to take from the possession of George Berry, this taxicab with the intent to deprive him of it, then they would be guilty of the offense (robbery)

'If you find that the respondents, or either of them, on the facts as you determine them to be, after applying the law that I have given you, are not...