Flannigan v. State

Prescott, J., delivered the opinion of the Court. After conviction and sentence on the third and fourth counts of a four-count indictment, appellant noted this appeal. The only question involved is whether the evidence adduced was sufficient to support a finding of guilt on either, or both, of said counts? On May 4, 1962, appellant Flannigan presented a check to one Mehn, who was the manager of “Franz’ Food Market,” and requested him to cash it.

The check was dated May 2nd, was made payable to a certain Wade J. Shaver for the sum of $57.00, and purportedly was drawn by “Town and Country Construction Company of Baltimore” on the Union Trust Company. It was endorsed on the back with the name of Wade J. Shaver, but the record fails to disclose who, in reality, drew the check or who endorsed the same. Mehn cashed it as requested, and shortly thereafter he was notified that the “account [had been] closed.” The police were notified and several weeks later the appellant was arrested. He admitted to them that he had cashed the check, but stated that he had found it in the men’s room where he worked and had written nothing thereon.

The third count charged a violation of Code (1962 Cum. Supp.), Article 27, § 142 (The Worthless Check Act). Appellant contends that this count charged him with having obtained $57.00 “of the goods, chattels and properties of the said Vernon H. Mehn” by means of the worthless check, when actually, the money given to him in exchange for the check belonged to Jacob Franz, the owner of the food market. He comes to this conclusion because Mehn failed to testify the money belonged to him; he was acting in his capacity as man ¹⁷ ager when the check was cashed; he stated that he went back and got the money to cash the check, indicating that he went to the place where he kept the food market’s money; and last, but not least, the only name on the back of the check in addition to Wade J. Shaver, the payee, was Jacob Franz, the owner of the market.

The evidence, we think, supports this conclusion of the appellant. From this point, he argues that if Franz were the true owner of the money used to cash the check when the indictment laid the ownership in Mehn, then there was a fatal variance between the allegata and probata, and his motion for a judgment of acquittal should have been granted. Maryland Rule 755. The State counters by stating that if there were any variance at all, it was an immaterial one, and, in addition, the evidence was sufficient to support a finding that the appellant endorsed the check.

The trial judge did not state the reasons for his findings of guilt, so we do not have the benefit of knowing how he arrived at his conclusions; but we are unable to agree with either of the above arguments of the State. There can be little doubt that in this State the ownership of the property claimed to have been obtained by false pretenses is a necessary allegation in an indictment charging that offense. State v. Blizzard, 70 Md. 385 , 17 A. 270 ; Armacost v. State, 133 Md. 289 , 105 A. 147 . Cf.

Simmons v. State, 165 Md. 155 , 167 A. 60 ; State v. Petrushansky, 183 Md. 67 , 36 A. 2d 533 . Hence, any failure of the State to prove the ownership as laid in such an indictment could not be said to be immaterial. However, we have held in a prosecution for larceny that an allegation of the ownership of stolen goods is supported by proof of any legal interest, or special property, in the goods, as, for instance, where the person named in the indictment is in lawful possession as a bailee or common carrier. Richardson v. State, 221 Md. 85, 88 , 156 A. 2d 436 .

And we think that reason and authority support a similar holding with reference to false pretenses. 22 Am. Jur., False Pretenses, § 92; 35 C.J.S., False Pretenses, § 44 b. Cf. State v. Blizzard, supra, wherein this Court stated that it was no less ¹⁸ requisite in false pretense indictments to allege the ownership of the property obtained than for such averments in indictments for larceny.

In the instant case, Mehn was in lawful