Connor v. State

Per Curiam. The appellant, Robert Wayne Connor, was convicted of the crime of larceny to the value of $100.00 or upwards in the Circuit Court for Montgomery County, Judge Joseph M. Mathias sitting with a jury, and was sentenced to the jurisdiction of the Department of Correction for three years. The sole question presented on this appeal is whether the court erred in denying a motion for judgment of acquittal. Appellant contends that the evidence showed that he was in possession of the automobile radio- and the automobile stereo tape player here involved and that therefore the crime proven, if any, was larceny after trust rather than common-law larceny.

Larceny is the wrongful and fraudulent taking and removal of personal property from the possession of another against his will, with intent to deprive the person entitled thereto of his ownership therein. Robinson v. State, 4 Md. App. 515, 532 (1968) ; Hochheimer, Law of Crimes and Criminal Procedure, § 362 (2d ed. 1904) ; Wharton, Criminal Law and Procedure, § 447 (Anderson ed. 1957). On the other hand, larceny after trust is a statutory offense, Md. Code, Art. 27, § 353, (1967 Repl. Vol.) (Cum.

Supp. 1968), which provides that: “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, shall, where the value of the thing so converted is one hundred dollars or more, be deemed guilty of a felony It is, of course, well recognized that the crime of larceny after trust was created to reach those cases, not covered by the crime of common law larceny, where an individual lawfully entrusted ²⁶³ with possession of goods thereafter converts the entrusted goods to his own use. Pachmayr v. State, 1 Md. App. 270, 274 (1967). The evidence at trial showed that Harry B. Essex was parts manager of Miller Buick, Inc., a corporation, hereinafter referred to as Miller Buick, and that the appellant was employed by Miller Buick in its parts department. Mr. Essex stated that appellant was his “assistant” and that appellant’s duties were to drive a truck and to do “whatever was necessary in the parts department.” Mr. Essex’s only testimony with respect to his own duties was as follows : “Q. What are your duties as parts manager with reference to receiving any parts ? “A. My duties are to receive and then check in the parts, put them away in the proper places.” He also testified that Miller Buick was the owner of the automobile radio and stereo tape player here involved, and that when radios and stereo tape players are received at Miller Buick they are stored in their locations, which location is “in shelves” in the “rear shelving division” of the parts department.

The radio and stereo player involved here were received by Miller Buick in early October and were discovered missing on November 11. Vernon H. Miller, owner and manager of Miller Buick, testified that appellant had been employed by Miller Buick and that the “parts man did the actual hiring” of appellant. He also testified that pursuant to Miller Buick’s business the company has occasion to order automobile parts and that Miller Buick becomes the owner of such parts. The appellant testified that he had been employed as a “parts clerk” in the