Wright v. Sas

• Decision Date: 09 January 1947
• Docket Number: 48.
• Citation: 50 A.2d 809,187 Md. 507
• Parties: WRIGHT, Warden, v. SAS. SAME v. DE HAVEN.
• Court: Maryland Court of Appeals

50 A.2d 809

187 Md. 507

WRIGHT, Warden, v. SAS.

SAME v. DE HAVEN.

No. 48.

Court of Appeals of Maryland

January 9, 1947

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Chief Judge.

Habeas corpus proceedings by John Sas, Jr., and by Robert De Haven against J. Leroy Wright, Warden of Maryland House of Correction. From orders releasing petitioners, the warden appeals.

Orders reversed and petitioners remanded to custody.

William J. O'Donnell, Asst. St. Atty., of Baltimore (William Curran, Atty. Gen., J. Edgar Harvey and T Barton Harrington, Asst. Attys. Gen., and T. Lyde Mason and J. Bernard Wells, St. Attys., both of Baltimore, on the brief), for appellant.

No appearance for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

These are appeals (Act of 1945, ch. 702, Art. 42, sec. 3C) from orders releasing petitioners (appellees) on habeas corpus. Petitioners had been convicted in the Criminal Court of Baltimore of 'taking and carrying away, out of the custody and use' of the owner, an automobile, in violation of section 397 of Article 27, and had been sentenced to three years imprisonment. The ground of release was that section 397 of Article 27 (Act of 1880, ch. 164, as amended by Act of 1892, ch. 88 and Act of 1918, ch. 422) had been repealed by implication by the Act of 1943, ch. 1007 (enacting Article 66 1/2), and specifically by section 154 (under the subtitle 'Operation of Vehicles Upon Highways), which provides: 'Any person who drives a vehicle, not his own, without the consent of the owner thereof, and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same, is guilty of a misdemeanor,' punishable by a fine of not less than $10.00 or imprisonment for not less than thirty days nor more than one year, or both fine and imprisonment. By section 3 of the Act of 1943 all laws or parts of laws inconsistent with the provisions of the Act were repealed to the extent of the inconsistency. The Act of 1943 is, by its title, an act 'revising generally the Motor Vehicle Laws of Maryland.' The question now presented is whether section 397 was repealed by the Act of 1943.

Section 397 is closely related to section 396, a much older statute which originated in the Act of 1744, ch. 20, 'An Act for the punishment of horse stealers and other offenders.' In England much earlier, horse-stealing had been punished more severely than other cases of larceny. By statutes (1 Edw. VI c. 13; 2 & 3 Edw. VI, c. 33; 31 Eliz. c. 12) the benefit of clergy had been taken away 'for horse-stealing in the principals and accessories both before and after the fact.' Blackstone's Commentaries, IV, 238. By the Act of 1744, sec. 1, a person guilty of horse-stealing, or as an accessory before or after the fact, or of receiving a stolen horse, knowing it to be stolen, was punished by 'death as a felon without benefit of clergy.' By the Act of 1799, ch. 61, the Act of 1744 was extended to the stealing of a 'jack, jenny or mule.' By the Act of 1809, ch. 138, sec. 6, the receiver was not included and the punishment was not less than two nor more than fourteen years in the penitentiary. By the Act of 1918, ch. 422, sec. 293, the words 'or motor vehicle as defined in the laws of this State relating to such' were inserted after enumeration of the animals covered. Section 396 is the same as the Act of 1918, and in other respects the same as section 68, Art. 30 of the Code of 1860 and section 164, Art. 27 of the Code of 1888 and substantially the same as the Act of 1809. By the same section of the Act of 1809 ordinary cases of larceny to the value of five dollars or upwards were punished by not less than one nor more than fifteen years in the penitentiary. By the Act of 1882, ch. 84 and the Act of 1933 (Special Session), ch. 78, provision was made for imprisonment in the house of correction or jail and the limit of value was made $25 or upwards. In other respects section 387 of the Code of 1939 is the same as section 98, art 30, of the Code of 1860 and section 156 of the Code of 1888 and substantially the same as the Act of 1809.

By the Act of 1880, ch. 164, section 396 (then 68) of the Code was not changed, but a new section (now 397) was enacted, creating a new misdemeanor, which may be roughly characterized as larceny of the use of horses or vehicles, punishable by a fine of not less than five nor more than twenty dollars, or not less than one nor more than six months in jail, or both fine and imprisonment. The Act of 1880 was applicable to 'any person * * * who shall * * * take and carry away out of the custody or use of any person * * * any of the above enumerated property [any horse, mare, colt, gelding, mule, ass, sheep, hog, ox or cow, or any carriage, wagon, buggy, cart or any other vehicle or property whatsoever] at whatsoever place the same may be found,' though taken for his 'present use, and not with the intent of appropriating or converting the same.' By the Act of 1892, ch. 88, the penalty was increased to a fine of not less than $50 nor more than $100, or not less than six months nor more than four years in jail or in the penitentiary or house of correction, or both. By the Act of 1918, c. 422, sec. 294, the words 'including motor vehicle as defined in the laws of this State relating to such' were inserted after 'any other vehicle.' The Act of 1918 is, by its title, an act to repeal and reenact with amendments sections 293 and 294 (now 396 and 397) 'and providing penalties for the larceny of motor vehicles.' This purpose was effected by inserting the same words in sections 396 and 397 (then 293 and 294). Perhaps the amendment was not necessary in section 397, which already covered 'any carriage, wagon, buggy, cart or any other vehicle, * * * or property whatsoever.' Apparently it was though or feared that, by reason of the association of vehicles (all horse-drawn or ox-drawn, in 1880) with horses, 'vehicle' might not include a subsequently invented 'horseless carriage.' Except as changed by the Acts of 1892 and 1918, section 397 is the same as the Act of 1880.

The first Maryland 'motor vehicle law' was the Act of 1904, ch. 518. It did not prohibit unauthorized use. The Act of 1906, ch. 449 repealed and reenacted with amendments the sections (of Article 56) enacted in 1904 and added a new section, 139A, which provided: 'No chauffeur or other person shall drive or operate any motor vehicle upon any street or highway in the absence of the owner of such motor vehicle without his consent.' The Act of 1910, ch. 207, repealed and reenacted the sections enacted in 1906, with amendments and additional sections; section 139A was reenacted, as section 140l, without change except insertion of the words 'of this State' after 'highway.' Section 140l was reenacted without change, as section 156, by the Act of 1916, ch. 687, the Act of 1918, ch. 85, and the Act of 1920, ch. 506, and became section 203 in the Code of 1939. It was repealed by the Act of 1943 and superseded by section 154 of Article 66 1/2. The Act of 1916, by its title, was 'intended to comprise a revision and reenactment of all the laws of this State pertaining to motor vehicles.' The Act of 1918 was 'intended to comprise a revision of all the laws of this State dealing with the use of motor and other vehicles on the public Highways of the State.' The Act of 1943 was an act 'revising generally the Motor Vehicle Laws of Maryland.' The Act of 1918, ch. 85 was approved March 28, 1918; the Act of 1918, ch. 422 (now section 397 of Article 27), was approved April 10, 1918.

The judge who heard these cases held that: The Act of 1943 is a codification of the motor laws of the State, and was intended as a substitution for other laws upon that...