Carter v. State

Morton, J., delivered the opinion of the Court. Appellant, James A. Carter, was convicted by a jury in the Circuit Court for Montgomery County (Shure, C. J., presiding) on three counts of receiving and retaining a credit ²²⁵ card, which he knew was delivered under mistake, with the intent to use it or transfer it to a person other than the issuer or cardholder. The indictments charged that the offenses occurred between August 1, 1974, and October 27, 1974. He was sentenced to three consecutive terms of one year each with the direction that after 18 months had been served he was to be placed on probation for the remaining 18 months.

In September, 1973, Texaco mailed five duplicate credit cards to a business known as American Technical Services. The cards were mistakenly delivered to American Technical Services’ old address, 4925 Bethesda Avenue, in Montgomery County which was then occupied by appellant. The cards, all mailed in the same envelope, had the same Texaco account number, but each had its own sub-account number. The State charged appellant with having distributed several of the cards to his employees to use for business related purposes and with having retained the remaining cards for future use, all in contravention of Md. Code, art. 27, § 142A (c) (2).

Although appellant received five cards, the State charged appellant only with three criminal violations. The indictments did not specify the manner in which the cards were used, but rather employed general language that they were used in violation of § 142A (c) (2). William Brooks, a former employee and alleged accomplice of appellant, testified pursuant to a dismissal of all charges against him. While working for appellant from July, 1974, until December, 1974, he stated that Carter showed him a Texaco credit card in July and gave him one in September to use for purchases made in connection with appellant’s business.

Brooks not only used the card for business related purposes, but he also utilized it extensively for personal purposes. Faith McCloud, a friend of Brooks, testified that she was present when appellant gave what appeared to be either a Mobil or Texaco credit) card to Brooks.) She stated,that the transfer occurred in either late July or during the first several weeks of August, 1974. Lt. Mason W. Gray of the Montgomery County ²²⁶ Department of Police testified that he recovered the credit card from Brooks in February, 1975.

At that time Brooks told him that he had received his card around August 1, and that the only person present pther than appellant and himself was a boy named John Kelley. He said nothing about McCloud being there. Richard Tanner, a service attendant at Westwood Texaco in Bethesda, Maryland, stated that Brooks used one of the subject credit cards to purchase gasoline on October 23,1974. The State attempted to prove that appellant had given one of the other cards to another employee, Irving Mayer, from whom a card was eventually recovered.

Wanda Wendrock, a customer service representative for Texaco, testified that on September 10 or 11, 1974, she telephoned appellant’s place of business and spoke to an individual who identified himself as Jim Carter. The purpose of the call was to discuss improper charges on the subject credit card account which had been made by Mayer. The person to whom she spoke indicated that Mayer was a former employee of his and that he knew that Mayer had the card. This card was used in June, July and August, 1974, partially for appellant’s business.

Ms. Wendrock stated that the individual to whom she spoke stated that he did not know how Mayer obtained the card but that he would pay any charges incurred by Mayer. A special investigator for Texaco, James G. Kohler, testified that he had a conversation with Carter on October 4, 1974, at which time appellant admitted having received the credit cards. Kohler stated that appellant informed him that a secretary had given the cards to his former employees, Brooks and Mayer. Carter stated'that he did not know the whereabouts of the remaining cards.

Barry Lee testified that he sublet portions of appellant’s business premises in the summer and fall of 1974. Lee stated that Carter showed him at least three, perhaps four or five, of the subject credit cards and then put them in his wallet. Although unable to recall when this incident occurred, Lee testified that he was able to discern that the cards were made out to American Technical Services. Furthermore, ²²⁷ appellant told Lee that “[i]f an emergency ever came up * * * where he had to leave town or something, whatever, he would have gas or whatever he needed.” Appellant surrendered two cards to Lt.

Gray on February 23, 1975, after being requested to search his car for them. Lt. Gray testified that he was acting upon information received from Brooks. Appellant, who professed ignorance that the cards were in his car, maintained that Brooks no doubt planted them there.

Appellant first contends that since all five credit cards were received at one time, in one envelope and were all issued on the same account, he was unlawfully convicted and sentenced on three separate counts for but one offense. Appellant relies in main on Bell v. United States, 349 U. S. 81 (1955) wherein the Supreme Court concluded that