Burgess v. State

Digges, J., delivered the opinion of the Court. The appellants here were convicted of larceny by a jury in the Circuit Court for Howard County, the judgment and sentence being confinement in the penitentiary for the period of four years. From this judgment they have appealed. The indictment, as drawn, contained six counts, the first, second, and fourth of which were abandoned by the State, and the- defendants were tried upon the third, fifth, and sixth counts, which resulted in a verdict of not guilty as to the third and sixth counts but guilty as to the fifth count.

The circumstances, as shown by the record, are that on the day in question a colored man, Marcus Curtis, was transporting 90 gallons of whisky from Baltimore to Washington in a Chrysler coach, which car and whisky belonged to one Frank Guy, a resident of the District of Columbia. Further than the above, it is impossible to ascertain from the record before us the circumstances under which the alleged crime was committed. Counsel for both sides have, in their briefs, set forth certain facts which the record here does not contain; and while these statements may describe what took place according to the ¹⁶⁵ original transcript, this court is confined to the record now before it. While it is true that a record should be shortened by condensation, so as to contain only the testimony necessary to a determination of the questions involved, every record should contain so much of the testimony as will enable the court to have a proper understanding of the case.

In no other way can the questions passed upon hy the trial court be fairly and intelligently considered. This record consists of isolated bits of testimony, showing, in some instances, objection, ruling, and exception; in others, objection, no ruling, and no exception. The record seems to have been prepared upon the assumption that this court is as fully acquainted with the proceedings in the trial court as counsel who participated; and we are therefore asked to pass upon questions of evidence, on fragments of testimony, without the assistance of the context. Eor instance, under what is claimed to be exception 4-, a witness was asked: “What cars were in that accident ?

The defendants by their counsel objected to the question and witness answered as folLows: A Ford and a Cadillac.” There is absolutely no evidence in the record of any accident, and yet we are asked to sustain the appellants’ objection to that question. What the record contains is within the control of appellants, and what we desire to say is that it must ho prepared in such manner as to enable us to pass upon the questions sought to be raised. Anything less than that requirement would he not only unfair to the trial court, but disastrous to the litigants. With these observations, we will proceed to pass upon such of the contentions of the apTX'Hants as arc' properly presented in the record.

The defendants interposed a demurrer to the indictment, and to each count thereof. The indictment charges the defendants with the larceny of an automobile and ninety gallons of whisky. The value of the automobile is alleged to have been $100, and (each gallon of whisky of the value of $4.00. The demurrer was overruled, which action it is contended was erroneous, because the ownership of the articles alleged ¹⁶⁶ to have been stolen was laid in two different persons.

The only count in the indictment which charged larceny alleged property in Frank Guy; this was the fifth count, and the one upon which the defendants were found guilty. Other counts in the indictment, charging robbery, laid the property in Marcus Curtis. It is not proper, in one and the same count, to lay the property alleged to be stolen in more than one person, because each count must contain such allegations as will enable a jury to find the accused guilty on that count. It is clear that the jury could not find by their verdict that the same article, which they found had been stolen, was the property at the same time of different persons; but there is nothing to prevent the allegation of ownership of property in different persons, when contained in separate counts of the same indictment, for the purpose of meeting the varying degrees of proof which the testimony may develop.

In the case before us, it was not certain whether the testimony would show that the automobile and whisky were the property of Curtis, or the property of Guy. After the proof was in, it was shown to the satisfaction of the jury that it was the property of Guy, and they therefore found that the defendants were not guilty of taking the property of Curtis, which was alleged in one count, but were guilty of taking the property of Guy, contained in another count. In Bishop’s New Criminal Procedure, vol. 1, p. 311, citing numerous authorities, the principle is thus stated in a footnote: “The court should always interpose either by quashing the instrument or by compelling an election, where an attempt is made, as manifested by either the indictment or the evidence, to convict the accused of two or more offenses growing out of distinct and separate transactions; but should never interpose in either mode where the joinder is simply designed and calculated to adapt the pleading to the different aspects in which the evidence on the trial may present a single transaction.” The contention is made by the appellants in their brief that the whisky in question, being contraband, was not the subject of larceny. We do not think this question is properly ¹⁶⁷ raised.

It is not raised by the demurrer to the indictment, because each count of the indictment, in addition to charging the theft of whisky, also charged the defendants with the larceny of an automobile of the value of $100. Reither is it raised by what purported to be the second exception, because the record, while it shows that the defendants objected to the question by the state’s attorney, “Row, what was the whisky worth ?” and the court overruled their objection, there was no exception noted. The witness answered: “Four dollars a gallon.” If, however, this question were properly presented, we would have no hesitancy in holding that contraband liquor is the subject of larceny. This is practically the uniform holding of the courts throughout the country, before and since the passage of the Volstead Act.

Commonwealth v. Rourke, 10 Cush. (Mass.) 397; Commonwealth v. Smith, 129 Mass. 104 ; Fears v. State, 102 Ga. 279 , 29 S. E. 463 ; State v. Donovan, 108 Wash. 276 , 183 P. 127 ; Ellis v. Commomwealth, 186 Ky. 497 , 217 S. W. 368 ; People v. Kilpatrick, 79 Colo. 303 , 245 P. 719, 720 ; People v. Otis, 235 N. Y. 421 , 139 N. E. 562 ; People v. Wilson, 298 Ill. 257 , 131 N. E. 609 ; Ray v. Commonwealth, 230 Ky. 656 , 20 S. W. (2nd) 484 , 66 A. L. R. 1297; 11 A. L. R. 1030, note; 66 A. L. R. 1297, note; 36 C. J. 747. In People v. Otis, supra, decided after the passage of the Volstead Act, the court said: “The statute further provides that ‘no property rights shall exist’ in liquor illegally possessed.

There can be no larceny of property not subject to ownership. How then, it is asked, may there be larceny of such liquor ? If we give the broadest possible construction to these words, there is no answer; for it must be conceded that to enforce the recent amendment to the Constitution, Congress may declare that to steal liquor shall no longer be a crime. It might think it wise to license theft so as to discourage intoxication.

We should not, however, readily impute to it such a design. * * * Certainly the earlier declaration of the same statute (section 3, title 2), that its provisions are to be ‘liberally construed to the end that the use of intoxicating liquor as a beverage ¹⁶⁸ may be prevented/ gives no indication of such a purpose. To so construe the language of section 25, title 2, would be to encourage the transportation, distribution, and consumption of liquor by the thief.” In our opinion, the clear purpose of the Act of Congress October 28th, 1919, in providing that “no property rights shall exist” (title 2, section 25) in liquor illegally possessed, was to prevent the possessor of contraband liquor from resorting to law to protect him in the possession and enjoyment thereof, and to prevent claim of damages against officials for destruction of such liquor, and not that a thief should go unmolested in the event that the subject of his theft was liquor. As stated by the court in People v. Kilpatrick, supra: “The purpose of this act was to limit civil rights, not criminal liability; to prevent the use of the law as a weapon of offense by the law-breaker, not to make one crime a shield for the protection of the perpetrator of another. To all demands for possession of contraband, or damages for its conversion, it (the law) returns its fiat, ‘Ho property’; to the thief who seeks its shelter it says, ‘Ho asylum.’ ” The first exception arose in the examination of Officer Kreiner, a member of the Baltimore police force, who had stated that he did not know the owner of a certain Ford coupé; and being asked if he knew who had been using that car, his answer was: “Yes.” He was then asked: “Who was using it?” The defendants interposed objection to this question, which the court overruled, and the witness answered, “Juliano,” who was one of the defendants.

In order to pass upon this ruling, it would be necessary to assume circumstances which the record does not disclose. If we could g’o beyond the record, one set of circumstances might make this question objectionable, while another would result in neither error nor injury; and we are bound to assume, under such a state of the record, that there was no error. What we have said in.reference to this exception applies to exceptions 3, 4, and 5. Sergeant Beaseman, of the State police force, while attempting to identify the car alleged to have been used in ¹⁶⁹ connection with the larceny, was permitted to use the record of a report which had been made immediately after the commission of the crime, in which report the number of the car was stated.

The witness testified that, while he did not make the report himself, he saw it made, and it was an accurate record of the information furnished the recorder by him. The court permitted him to refresh his recollection as to the number of the car by reference to that record. There was no error in this ruling. The witness later testified that he had first seen Kenney, one of the defendants, at the police station in Baltimore; that Sergeant Gearhart and himself had brought Kenney to Ellicott City jail in a Chrysler coach.

He was. then asked: “Did Marcus Curtis see the Chrysler coach?” The defendants interposed an objection, which was overruled, and the witness answered: “The only way he could see it was to look out of the window.” Without regard to whether the question was objectionable, the answer was entirely harmless. While the defendant Kenney was under cross-examination by the State, he was asked: “Have you ever1 been convicted of a crime?” Objection by the defense was overruled, and exception noted. The answer was, ‘Yes, sir.” It is established in this state that in criminal cases, where the defendant is a witness in his own behalf, he thereby puts his character in issue, and may be asked on cross-examination if he has been convicted of crime. Niemoth v. State, 160 Md. 544, 556 , 154 A. 66, 71.

In distinguishing that case from the cases of Duffy v. State, 151 Md. 456 , 135 A. 189 , and McAllister v. State, 140 Md. 647 , 118 A. 147 , Judge Umer, speaking for the court, referring to those cases, said: “The inquiries disregarded the principle that an accusation, as distinguished from a conviction, of crime may not be proved as a means of impeaching the credibility of a witness.” The effect of our decision is that the mere