Fletcher v. State

Sybert, J., delivered the opinion of the Court. John Francis Fletcher, appellant, was charged in a three count criminal information with (1) larceny of a motor vehicle; (2) receiving stolen goods; and (3) larceny of the use of a motor vehicle. All three counts referred to the same motor vehicle. In a non-jury trial in the Circuit Court for Prince George’s County he was found not guilty under the first count and guilty under the second and third counts.

He was sentenced to serve two years on the second count and six months on the third count, the latter sentence being suspended. He claims on this appeal that the verdicts of guilty of the crimes of receiving and of larceny of the use of the same vehicle, based upon the same evidence, are inconsistent and therefore fatally defective. We agree that the two convictions are inconsistent. This Court has often recognized that a finding of guilt on two inconsistent counts, such as larceny and receiving, is defective.

See Hardesty v. State, 223 Md. 559, 562 , 165 A. 2d 761 (1960); Bell v. State, 220 Md. 75, 81 , 150 A. 2d 908 (1959); Heinze v. State, 184 Md. 613, 617 , 42 A. 2d 128 (1945). As was stated in the Bell case, supra (at pp. 80-81 of 220 Md.): “* * * 'pjfig is so because a defendant cannot be both a thief and a receiver when it is apparent that the property alleged to have been stolen is the same as that alleged to have been received. When a verdict of guilty is rendered on inconsistent counts, the defendant has a right to require the trier of facts to specify on which of the counts he is guilty * * ¹⁹² We think that a consideration of the elements constituting the offenses of receiving stolen goods and larceny of the use of a motor vehicle requires the same result as that reached in the cases cited. It is generally held that the common law crime of larceny involves a felonious taking and carrying away of the personal property of another with intent to deprive the owner of his property permanently.

Putinski v. State, 223 Md. 1 , 161 A. 2d 117 (1960); see also Murray v. State, 214 Md. 383 , 135 A. 2d 314 (1957). It has been said that it is the act of taking which distinguishes larceny from its kindred offense of receiving stolen goods. 52 C.J.S., Larceny, Sec. 5; see also Brizzie v. State, 120 So. 2d 27 (Fla. App. 1960). While our statutes, Code (1957 and 1962 Supp.), Art. 27, Secs. 466 and 467, do not define the offense of receiving stolen goods, but merely prescribe the punishment therefor, the Maryland cases recognize that four elements are necessary to constitute the crime: (1) the property must be received; (2) it must, at the time of its receipt, be stolen property; (3) the receiver must have guilty knowledge that it is stolen property; and (4) his intent in receiving it must be fraudulent.

Weddle v. State, 228 Md. 98, 102 , 178 A. 2d 882 (1962); Jordan v. State, 219 Md. 36, 43 , 148 A. 2d 292 (1959). And we have said that although the fraudulent intention