Van v. State, 72

• Decision Date: 29 May 1967
• Docket Number: No. 72,72
• Citation: 230 A.2d 109,1 Md.App. 347
• Parties: Arnold H. VAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 347

1 Md.App. 347

230 A.2d 109

Arnold H. VAN v. STATE of Maryland.

No. 72.

Court of Special Appeals of Maryland.

May 29, 1967.

Joseph G. Koutz, Baltimore, Maurice T. Siegel, Baltimore, on brief, for appellant.

Jon F. Oster, Asst. Atty. Gen., Baltimore, on brief: Francis B. Burch, Atty. Gen., Baltimore, Marvin H. Anderson, State's Atty. for Anne Arundel County, Annapolis, for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and KENNETH C. PROCTOR, Special Judge.

THOMPSON, Judge.

Arnold H. Van, the appellant, complains of a conviction of larceny after trust under a three count indictment, charging larceny, larceny after trust and embezzlement. He was acquitted of larceny and embezzlement in a trial before the court.

In November of 1964 Van was employed as Assistant Manager of the Glen Burnie Chevrolet and Cadillac Company. A Mr. and Mrs. Carson became interested in the purchase of a 1962 Chevrolet on the company's used car lot. At the time the Carsons owned a 1958 Oldsmobile on which they owed $350.00 to the City National Bank of Fort Smith, Arkansas. The Carsons first dealt with a salesman named Abbato who let them take the 1962 Chevrolet with temporary tags for the purpose of trying it out. At the time Mr. Carson told Abbato about the balance due on his Oldsmobile and that this amount would have to be paid before he could purchase the Chevrolet. The Carsons drove the 1962 Chevrolet for approximately two weeks, at the end of which time Mr. Carson telephoned Abbato and told him that $350.00 was all that he could raise, and that if that amount was not enough to pay off the balance due on the Oldsmobile 'and make a deal with the payments we will just have to come back and get my car and call the whole thing off.' After several telephone calls to the office Van informed Mr. Carson that he would try to work out the trade.

Mrs. Carson first met Van on November 15, 1964. On that date Mr. Carson telephoned the Company and told someone present that he was sending Mrs. Carson there with the check in the amount of $350.00. Mrs. Carson gave Van the check which she had filled out as to the amount and signed but which she left blank as to the payee. Van, the appellant, told her that the company name would be stamped on the check. Mrs. Carson understood that the check would be used to pay off the balance due on the Oldsmobile which in turn would be used as a down payment on the Chevrolet. Van instead filled in 'cash' and used the funds for his own purposes. He did not make restitution.

Van's specific complaint is that he was guilty of embezzlement, and therefore could not be convicted of larceny after trust. He relies on Nolan v. State, 213 Md. 298, 131 A.2d 851 noted in 18 Mayland Law Review 237, wherein the Court reversed an embezzlement conviction because the facts showed that the accused was guilty of larceny and therefore could not be also guilty of embezzlement. The court's opinion was based upon the British Courts' interpretations of the English embezzlement statute which is almost identical with the Maryland statute. It does not follow that an accused cannot be guilty of embezzlement and larceny after trust.

The fourth headnote in the Maryland Reports reporting of Nolan v. State, supra, indicates that the court discussed larceny after trust as being a crime at common law. The opinion, however, did not discuss the subject and the statement that larceny after trust was a crime at common law is erroneous, Blackstone: Commentaries on the Law. The crime of larceny after trust was not only unknown to common law, but under that name, at least, has been enacted in very few states of this country, 29A C.J.S. Embezzlement § 4. It was added to the law of Maryland by Laws of Maryland 1945 Chapter 831 in the following language:

'Any person who shall be entrusted with the possession of goods or things of value for the purpose of applying the same for the use and benefit of the owner or person who delivered the goods and things who shall fraudulently convert the same to his own use * * *.

'Provided that nothing contained herein in this section shall be construed to alter or repeal any section contained in this Article.'

The statute was apparently modeled after one from the State of Georgia. Georgia Code Section 26-2809 (originally passed in 1866) contains the following language:

'Any person who has been entrusted by another with any money, note, bill of exchange, bond, check, draft, order for the payment of money, cotton or other produce, or any other article or thing of value, for the purpose of applying the same for the use or benefit of the owner or person delivering it, who shall fraudulently convert the same to his own use * * *.' (Italics added.)

Although the Maryland statute has not been construed by the Court of Appeals of Maryland there are many cases in the State of Georgia construing its statute. ¹ We must, therefore look to the Georgia decisions for guidance as to the construction of our own statute, Nolan v. State, supra.

We have found no Georgia case in which the argument was made that an accused could not be convicted of larceny after trust by reason of the fact that the crime would also be embezzlement under the Georgia law; however, the Georgia courts have upheld convictions in situations that...