In re Lakeysha P.

MOYLAN, Judge. To pinpoint the precise issue before us on this consolidated appeal, it may be helpful to posit a criminal jury composed of twelve law professors. A 21-year-old defendant is before them on a two-count indictment, the first count charging the Theft of an automobile and the second, the Unauthorized Use of that automobile. Undisputed evidence established that the defendant, without the consent of the owner, broke the window of the automobile, “hot wired” the ignition, and drove off, alone.

He was apprehended by the police two minutes later, four blocks away. The defendant, with no criminal record, had apparently never spoken to anyone with respect to that or any other automobile. He gave no statement to the police and did not testify. There was no suggestion that the defendant was not both sane and sober.

After several hours of deliberation, the jury returned with a question: We are unanimously persuaded beyond a reasonable doubt that the defendant unlawfully took the car and specifically intended to deprive the owner of it. As to the duration of that intended deprivation, however, we don’t have a clue. We are not persuaded that the defendant intended to deprive the owner of the car permanently or for such a period as to appropriate a portion of its value. Neither are we persuaded that the defendant intended to deprive the owner of the car only temporarily.

Given these findings and non-findings, must we acquit the defendant on all charges or may we resolve our doubt by convicting him of the less blameworthy charge? Please advise. We would advise that hypothetical jury to convict of Unauthorized Use. There is no eye in the hurricane of guilt.

In ⁴⁰⁴ reaching that conclusion, we are not unmindful of Henry v. State, 273 Md. 131 , 328 A.2d 293 (1974). We venture to suggest, however, that Henry v. State is no longer binding, inviting as we do so the full scrutiny of the Court of Appeals to be brought to bear on a vexing doctrinal problem. It is the problem of the relationship between two crimes that share every element of a common corpus delicti, but then differ only as to the levels of blameworthiness of their respective mentes reae. We believe that different gradations or degrees of culpability all rise in the same direction, with each level telescoping imperceptibly into the next higher level as fact finders are, one by one, persuaded that the pertinent boundary marker has been passed.

We do not believe that related degrees of blameworthiness point in opposite directions, creating the anomaly (if not absurdity) of some intermediate “free zone” where one might be not guilty enough for the greater crime but too guilty for the lesser crime. We venture to advance this position because of our belief that the whole mode of legal and semantic analysis typified by cases such as Henry and our own McCarson v. State, 8 Md.App. 20, 257 A.2d 471 (1969) has, in closely analogous situations, been superseded by a more sophisticated and semantically more finely tuned analysis exemplified by the Court of Appeals opinion in Lightfoot v. State, 278 Md. 231 , 360 A.2d 426 (1976). The Cases at Hand In each of the two juvenile delinquency adjudications in this consolidated appeal, the key issue is exactly the same. It is not at all fact-specific, but is presented to us as an abstract legal question in two appellate briefs that are essentially verbatim copies of each other.

Consolidation is appropriate. At an adjudicatory hearing before Judge Martin P. Welch in the Circuit Court for Baltimore City, the appellant Lakeysha P. was found to have committed the delinquent acts of Theft of a Motor Vehicle and the Unauthorized Use of that same Vehicle—counts one and three, respectively, of the juvenile, ⁴⁰⁵ multi-count petition filed against her. At the subsequent disposition hearing, Lakeysha was found to be a delinquent child. She was placed on probation for an indefinite period.

Judge Welch indicated that he was merging the “lesser” offense of Unauthorized Use into the “greater” offense of Theft. Notwithstanding having merged the finding on the Unauthorized Use count, the judge then dismissed the count. It was also at an adjudicatory hearing before Judge Welch that the appellant Dontanyon T. was found to have committed the delinquent acts of Theft of a Motor Vehicle and the Unauthorized Use of that same Vehicle. It was at a subsequent disposition hearing before Judge Paul A. Smith that Dontanyon was found to be a delinquent child.

He was placed on probation for one year. Judge Smith ordered restitution in the amount of $800 on the Theft count and opined that the Unauthorized Use count had merged into the Theft count. The Issue Both appellants contend that their judgments of delinquency, based on findings that they had committed automobile Thefts, were fatally flawed because such findings were inconsistent with the companion findings that they had been guilty of the Unauthorized Use of the automobiles in question. The argument is that if they only intended to take the cars temporarily, findings they claim to be implicit in the Unauthorized Use convictions, they could not, ipso facto, have intended to take the cars permanently (or quasi-permanently), which would preclude Theft convictions.

There is a surface appeal to such an argument, but it is fallacious. The argument, we note, is not a complaint about multiple punishment, and In re Montrail M., 325 Md. 527, 535 , 601 A.2d 1102, 1106 (1992) (holding that a failure to merge two counts is not reversible error where only one penalty is imposed) is not apposite. The argument, rather, is that inconsistent verdicts of Theft and Unauthorized Use cannot stand, quite aside from any concern about multiple punishment. Nor is State v. Anderson, 320 Md. 17, 30 , 575 A.2d ⁴⁰⁶ 1227, 1233 (1990), apposite (where an apparent inconsistency in verdicts was explained away and shown not to have been an inconsistency at all).

This contention poses squarely the question of whether the crime of Unauthorized Use of an Automobile is logically inconsistent with' the Theft (or larceny) of that automobile or is simply a closely related crime with a lesser included mens rea. What Did the Legislature of 1880 Intend? The specimen on the dissecting table is the mens rea of Unauthorized Use. The crime itself is now codified as Md. Ann.Code, art. 27, § 349 (1993).

The statute creating the crime was ch. 164 of the Acts of 1880. It was a companion provision to the Maryland “horse stealing” statute, which had been on the books since 1744 and which created a special penalty for the common law larceny of horses and other related chattels. As a mere sub-variety of common law Larceny, dealing with certain specific chattels, the crime of horse stealing required proof of an animus furandi or intent permanently to deprive the owner of the horse. The newly created crime of Unauthorized Use was not a crime recognized at the common law and the 1880 statute had, therefore, to spell out all of its required elements.

The essential difference between traditional larceny and the newly enacted crime of Unauthorized Use was that the latter did not require proof of an animus furandi nor of any other specific intent. The question before us is whether the Legislature simply eliminated the requirement of a specific intent to deprive the owner of the chattel permanently—a mere dropping of an element—or whether it intended to create a substitute mental element of an affirmative intent to deprive the owner of the use of the chattel temporarily. Some latter-day champions of the “temporary” position maintain that the crime requires affirmative proof of an intent to deprive that is: 1) temporary in duration, 2) nothing but temporary, and 3) proved to be ⁴⁰⁷ temporary beyond a reasonable doubt. “Temporary” to them is not something that is merely “less than permanent;” it is the very opposite of “permanent.” The indecisive thief, therefore, who has not yet decided whether to keep the horse (or the car) either temporarily or permanently would presumably be guilty of nothing. That is the unavoidable logical consequence of making an affirmative element out of an intended temporary deprivation.

That, however, cannot be the law. Dealing With Horse Thieves As we begin to probe legislative intent, much can be deduced about the legislators’ collective purpose in 1880 by looking at the older law that the new Unauthorized Use statute was fashioned to complement. Wright v. Sas, 187 Md. 507, 510 , 50 A.2d 809 (1947), provides an excellent history of the horse-stealing statute; see also In re Wallace W., 333 Md. 186, 191 , 634 A.2d 53, 56 (1993); Robinson v. State, 17 Md.App. 451, 456 , 302 A.2d 659, 662 (1973). The Wright opinion points out how at early English law “horse stealing had been punished more severely than other cases of larceny.” 187 Md. at 510 , 50 A.2d 809 .

A series of English statutes in 1547, 1549, and 1589, see 1 Edw. 6 , ch. 13; 2 & 3 Edw. 6 , ch. 33; 31 Eliz., ch. 12, had removed the benefit of clergy from horse thieves, whether they were principals or accessories before or after the fact, thereby making the stealing of a horse a capital offense. The Maryland Colonial Assembly of 1744 replicated the English penalty provision, making it punishable by death to “steal any horse or horses, mare or mares, gelding or geldings, colt or colts.” 1744 Md.Laws, ch. 20 § 1. Ch. 20 was entitled “An Act for Punishment of Horse Stealers and Other Offenders.” Id. Following American independence, ch. 61 of the Acts of 1799 amended the 1744 statute modestly by eliminating the plural references and proscribing simply the stealing of “any horse, mare, gelding, or colt” 1 and then adding to the list the entries, ⁴⁰⁸ “jack, 2 jenny, 3 or mule. 4 ” 1799 McLLaws, ch. 61.

By ch. 38, § 6 of the Acts of 1809, Maryland’s first attempt to codify its criminal law, the penalty for violating the horse-stealing statute was reduced to one of not less than two nor more than fourteen years in the penitentiary. 5 1809 Md.Laws, ch. 38 § 6. It also eliminated the unnecessarily particularized references to “jack” and “jenny” and substituted the gender-neutral term “ass.” Id. That was the “horse stealing” statute, unchanged after 1809, that was on the books in 1880, see Md.Code art. 30, § 68 (1860), when the Legislature chose to supplement it or complement it with an immediately succeeding section in the criminal code. The Birth of Unauthorized Use The Unauthorized Use statute was enacted by ch. 164 of the Acts of 1880.

The best way to determine what a law means is to see what it says and what it does not say; the most revealing insight into legislative intent is to look at the words the legislators used. There is little need, as many opinions have done, to look at one-sentence characterizations of the 1880 law made seventy or eighty years after the fact, most of them no more than repetitions of an earlier one-sentence ⁴⁰⁹ characterization, when one can readily look at the 1880 law itself. 6 As we now do just that, we reiterate that our narrow focus is on the single question of whether the 1880 law merely eliminated the mental element of an intended permanent deprivation or substituted for it the mental element that there be an affirmatively intended temporary deprivation. Post-1880 amendments to the Unauthorized Use statute have, incidentally, not remotely affected the mens rea of the crime and it may not be necessary to look beyond the original statute itself. The 1880 law began by routinely reciting the persons covered by it: ANY PERSON OR PERSONS, THEIR AIDERS OR ABETTORS, WHO SHALL ... 1880 Md.Laws, ch. 164.

It then went on to set out two almost indistinguishable sets of circumstances in which the unlawful caption and asportation might occur. Sandwiched between them was the list of specific chattels covered by the law. The new crime first listed all of those special chattels then covered by the horse stealing statute, to wit, horses, mares, colts, geldings, mules, and asses, but then added 1) four varieties of other livestock and 2) four varieties of transportative conveyances plus a miscellaneous catch-all phrase. 7 The law expressly specified its coverage of the following chattels: ⁴¹⁰ ... ANY HORSE, MARE, COLT GELDING, MULE, ASS, SHEEP, HOG, OX, OR COW, OR ANY CARRIAGE, WAGON, BUGGY, CART, OR ANY OTHER VEHICLE OR PROPERTY WHATSOEVER ...

Id. The arguably redundant geographic settings for the unlawful taking and carrying away of certain chattels first prohibits those unlawful acts from the premises of another and then prohibits them from any place whatsoever. See Thomas v. State, 277 Md. 257, 269 , 353 A.2d 240, 248 (1976). The first possible situs of the crime is from premises: ...

WHO SHALL ENTER, OR BEING UPON THE PREMISES OF ANY OTHER PERSON, BODY CORPORATE OR POLITIC IN THIS STATE, AND SHALL AGAINST THE WILL AND CONSENT OF SAID PERSON OR PERSONS, BODY CORPORATE OR POLITIC, OR THEIR AGENTS, WILFULLY TAKE AND CARRY AWAY ... 1880 Md.Laws, ch. 164. The second venue for unlawful caption and asportation (perhaps inadvertently omitting the adverb “wilfully”) is from “whatsoever place,” a situs presumably broad enough to have embraced the first: ... OR TAKE AND CARRY AWAY OUT OF THE CUSTODY, OR USE OF ANY PERSON OR PERSONS, BODY CORPORATE OR POLITIC, OR THEIR AGENTS, ANY OF THE ABOVE ENUMERATED PROPERTY AT WHATSOEVER PLACE THE SAME BE FOUND ... Id.

At that point in the statute, the crime of Unauthorized Use is completely defined. All of its required elements are expressly set out. As a “junior varsity” version of larceny law ⁴¹¹ generally or of horse-stealing law specifically, the new crime includes all of the elements of the older crimes save one. The express elements are: 1.

AN UNLAWFUL TAKING; 2. AN UNLAWFUL CARRYING AWAY; 3. OF CERTAIN DESIGNATED PERSONAL PROPERTY; 4. OF ANOTHER.

Significantly, the new crime does not mention any specific mens rea or particular intent element at all. There is no larcenous animus furandi; neither is there any lesser or “junior varsity” version thereof. The specific intent element has simply been eliminated. The crime having been fully defined, the statute then proceeded to set out the sanctions.

A person convicted of the crime, as thus described, was: 1) deemed guilty of a misdemeanor, 2) obligated to restore the property, 3) subject to a fine, and 4) subject to imprisonment. As a crime without the animus furandi of the horse-stealing statute, it only carried a prison term of between one and six months 8 rather than a term of between two and fourteen years. The penalty provisions of the 1880 law were: ... SHALL, UPON CONVICTION THEREOF IN ANY OF THE COURTS OF THIS STATE HAVING CRIMINAL JURISDICTION, BE ADJUDGED GUILTY OF A MISDEMEANOR, AND SHALL RESTORE THE PROPERTY SO TAKEN AND CARRIED AWAY, AND BE FINED NOT LESS THAN FIVE NOR MORE THAN TWENTY DOLLARS, OR BE IMPRISONED IN THE CITY OR COUNTY JAIL NOT LESS THAN ONE NOR MORE THAN SIX MONTHS, OR BE BOTH FINED ⁴¹² AND IMPRISONED AS AFORESAID, IN THE DISCRETION OF THE COURT ...

Id. Then following the sanction-related verbal phrases “shall ... be adjudged,” “shall restore,” “[shall] be fined,” and “[shall] be imprisoned,” came the modifying (by way of being explanatory) clause: ... ALTHOUGH IT MAY APPEAR FROM THE EVIDENCE THAT SUCH PERSON OR PERSONS, THEIR AIDERS AND ABETTORS, TOOK AND CARRIED AWAY THE PROPERTY, OR ANY PORTION OF THE SAME ENUMERATED IN THIS SECTION, FOR THEIR OR HIS PRESENT USE, AND NOT WITH THE INTENT OF APPROPRIATING OR CONVERTING THE SAME. Id.

(Emphasis supplied.) The transparent purpose of that final proviso was to make explicit what was already implicit, to wit, that the crime of Unauthorized Use did not include any element of an animus furandi. The modifying clause was not part of the setting out of the affirmative elements of the offense. It simply confirmed that the sanctions may be imposed on a violator even though the evidence may show that he did not possess an animus jurandi. Thus, an intent to deprive temporarily may be a sufficient condition, but it is not a necessary condition.

Significantly for present purposes, the word “temporary” never appeared anywhere in the statute. Indeed, neither the word “temporary” nor the notion of an affirmative intent to deprive temporarily would appear for another 83 years, and even then only in passing references in the case law. Later in this opinion, we shall discuss both the latter-day gloss on the 1880 statute and the common semantic error of subconsciously transforming a purely negative silence with respect to an element into an affirmative statement of the opposite of that element. By vivid contrast with the silence of 1880, the Legislature knew full well how to use the word “temporary” or “temporarily” when it intended to establish such an element.

By ch. ⁴¹³ 1007 of the Acts of 1943, it enacted what was then codified as Art. 66yé, § 154 under the subtitle “Operation of Vehicles Upon Highways”: Any person who drives a vehicle, not his own, without the consent of the owner thereof, and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same, is guilty of a misdemeanor. 1943 Md.Laws, ch. 1007 (Emphasis supplied.) That was the traffic-related statute that Wright went to great lengths to contrast with the Unauthorized Use statute now before us, holding that the former differed in many significant regards from the latter and did not, therefore, repeal it by implication. Wright, 187 Md. at 510-11 , 50 A.2d at 810 ; see also Thomas v. State, 277 Md. at 269 , 353 A.2d at 248 (1976). Unlike that statute, now codified as Md.Code Ann., Transp. § 14-102(a), the Unauthorized Use statute never employed language such as “with intent temporarily to deprive” or “without intent to steal the same.” It specified no particular intent requirement. The Legislative Intent of 1880: The Probable Purpose of the Complementary Statute Another insight into the legislative intent of 1880 may be had by looking at the probable reason for the enactment of the Unauthorized Use statute.

The discovery of that probable purpose can be found in significant part in the inextricable linkage between the Unauthorized Use statute and the preexisting horse-stealing statute. They were complementary provisions in the various criminal codes from the moment of the birth of the Unauthorized Use statute in 1880, to the moment of the death of the horse-stealing statute in 1978. 1978 Md.Laws, ch. 849 (repealing Md.Ann.Code Art. 27, § 348). By then, it was designated as a provision dealing with “Larceny— Horses or Vehicles” and merged with the newly enacted Consolidated Theft Statute, Md.Ann.Code Art. 27, §§ 340-343 (1992). Horse stealing and Unauthorized Use were, respectively, §§ 164 and 165 of the Code of 1888; §§ 269 and 270 of the ⁴¹⁴ Code of 1904; §§ 326 and 327 of the Code of 1924; §§ 396 and 397 of the Code of 1939; §§ 414 and 415 of the Code of 1951; and finally, §§ 348 and 349 of the Annotated Code of 1957.

Indeed, the Acts of 1918 amended both criminal provisions at the same time by adding to their respective lists of covered chattels “motor vehicles as defined in the laws of this State relating to such.” 9 1918 Md.Laws, ch. 422. The almost perspicuous purpose of the Unauthorized Use statute in 1880 was to alleviate problems of proof caused by the animus furandi element in the larceny law. The penalty for a violation of the law dealing with the larceny of horses, etc. was harsh. In marginal cases, where judges or juries may have been loathe to subject a defendant to so harsh a penalty, the easiest way to avoid the imposition of such a sanction would have been to confess a failure of persuasion with respect to the mens rea of larceny.

It was easy for the State to prove the mere physical elements or actus reus—the unlawful taking and carrying away by the defendant of one of the designated chattels. Proof of intent to deprive permanently, on the other hand, was far more speculative in nature and gave a fact finder, wishing to mitigate, a convenient avenue to mitigation. Even with mens rea mitigated, however, one who unlawfully took the designated chattels was nonetheless deserving of some punishment, regardless of his intent with respect to the duration of the deprivation. The Unauthorized Use statute plugged that loophole in the law.

It applied, and still applies, to no less than four closely-related situations: 1) where there is a clearly established intent to deprive only temporarily; 2) where there is simply a failure of persuasion as to the intent to deprive permanently; 3) where the culprit has not, at the moment of the taking, yet decided whether the ⁴¹⁵ intended deprivation is to be permanent or temporary; and 4) where there is no evidence at all as to the duration of the intended deprivation. The solution to all four problems was not to burden the crime of Unauthorized Use with any special mens rea with respect to the duration of the intended deprivation. The law, therefore, was deliberately silent on the subject. In Robinson v. State, 17 Md.App. 451, 456 , 302 A.2d 659, 662 (1973), we opined as to the purpose of the 1880 legislation: The present Unauthorized Use shoot branched off from the parent stem in 1880.

It filled the gap sometimes left by the absence in the unlawful taker of an animus furandi .... The “Unauthorized Use Statute” is similar to its senior counterpart in all respects except that there is no element of “an intent permanently to deprive the possessor of the item taken.” (Footnote omitted.) Id. (Emphasis supplied.) See also Shope v. State, 18 Md.App. 472, 475-77 , 307 A.2d 730, 732-33 (1973). The Legislative Intent of 1880: 1880 Was Not 1943 One apparent reason why some persons theorize that the Unauthorized Use law contains an affirmative element of an intent to deprive temporarily is because they misperceive that law as an “anti-joyriding” statute.

Many of the so-called unauthorized use statutes around the country were products of the 1940’s and 1950’s and are, indeed, anti-joyriding statutes. As the Automotive Age came into full bloom, joyriding emerged as a significant problem. See, e.g., 3 Francis Wharton, Criminal Law & Procedure § 363 at 334 (14th ed. 1980), (“[B]y statute in many jurisdictions, the mere unauthorized use of a motor vehicle—sometimes called “joyriding”—has been made a crime”); W. LaFave & A. Scour, 2 Substantive Criminal Law, § 8.5(b) at 362 (1986), (“A large number of states have singled out the motor vehicle for special treatment, making it a crime (generally called ‘joyriding,’ a crime somewhat less serious than larceny) to take such a vehicle ⁴¹⁶ with intent to use it and return it.”); B. Finberg, Annotation, Automobiles: Elements of Offense Defined in “Joyriding” Statutes, 9 A.L.R.3d 633 , 640 (1966); see Model Penal Code § 223.9 Comment, 270-71, entitled “Unauthorized Use of Automobiles and Other Vehicles,” which states: Nearly all states have legislation penalizing unauthorized taking, use, or operation of motor vehicles. These laws are designed to reach temporary dispossession.

The typical situation dealt with is the “joyride,” i.e., the taking of another’s automobile without his permission, not for the purpose of keeping it but merely to drive it briefly. The offense is typically committed by young people, and the car is generally recovered undamaged. Such behavior would not amount to larceny, which, as traditionally defined, requires proof that the actor intended to deprive the owner permanently. Id.

(Footnote omitted.) R. Perkins & R. Boyce, Criminal Law 333-34 (3d ed. 1982), gives perhaps the best summation of the joyriding problem and the law’s response thereto: The social problem back of this legislation is well known. When the automobile began to appear and was limited to the possession of a few of the more fortunate members of the community, many persons who ordinarily respected the property rights of others, yielded to the temptation to drive one of these new contrivances without the consent of the owner. This became so common that the term “joyrider” was coined to refer to the person who indulged in such unpermitted use of another’s car.... It was when “joyriding” was at its height that most of the legislature enactments providing a penalty therefor were passed and the mere prevalence of this type of wilful trespass is sufficient to explain the creation of this statutory crime.

Id. Where the actual words of a particular statute permit, a plausible argument can be made that an anti-joyriding stat ⁴¹⁷ ute—a product of the 1940’s or 1950’s dealing exclusively with automobiles—is aimed narrowly at a circumstance in which the intended deprivation of the automobile is unequivocally temporary, when a teenager unlawfully takes someone’s automobile on a lark for the clear purpose of riding around only for a few hours or only for the evening before returning it or abandoning it in some public place. The only Maryland law that is a candidate for inclusion in the “anti-joyriding” category, however, is the law enacted by ch. 1007 of the Acts of 1943 and now codified as § 14-102(a) of the Transportation Article: Driving vehicle without consent of owner.—A person may not drive any vehicle without the consent of its owner and with intent to deprive the owner temporarily of his possession of the vehicle, even if without intent to steal it. Md.Code Ann., Transp. § 14-102(a) (Emphasis supplied.) The maximum penalty for a violation of that statute is a fine of not more than $500 or imprisonment for not more than two months or both.

Id. § 27-101(c); Thomas, 277 Md. at 269 , 353 A.2d at 247 . The Maryland Unauthorized Use statute of 1880, now codified as Art. 27, § 349, was, from its birth, a far different creature. Thomas, 277 Md. at 270 , 353 A.2d at 248 ; Wright, 187 Md. at 513 , 50 A.2d at 811 . It was on the books before the automobile itself was invented, let alone before the forbidden pleasures of joyriding in automobiles came into vogue.

The Maryland law had, indeed, been part of the criminal law for 38 years before the phrase “motor vehicles” was even appended to its lengthy list of endangered chattels. We are unaware, moreover, of any special social problem in the years immediately proceeding 1880 of persons’ going joyriding on another’s “horse, mare, colt, gelding, mule, etc.” One might, to be sure, unlawfully “borrow” a horse just to ride it, a cow just to milk it, or a sheep just to shear it; it is hard to imagine, however, why one would ever harbor an intent to deprive another temporarily of his hog. Although there is a decidedly revisionist tendency to look on the crime of Unau ⁴¹⁸ thorized Use as an anti-joyriding law, concerned primarily with motor vehicles, manifestly that was not the world view of the Maryland Legislature in 1880. The Weight of Authority: A Lesser Included Offense Even in the context of anti-joyriding statutes—frequently employing such phrases as “taking or using temporarily” and “without intent to steal,” which the Maryland Unauthorized Use law does not—the heavy weight of authority of the case law and the academic commentary alike is that even an anti-joyriding statute is a lesser included offense within the greater, inclusive offense of automobile larceny or automobile theft.

Perkins & Boyce, supra, at 384, observes: At the present time there is some tendency to reduce the grade of the offense and extend it to include the unauthorized temporary use of any vehicle. This statutory crime, whether called “larceny” or not, is in effect an “included offense. ” It has all of the elements of larceny except the intent to steal, and is limited to a small portion of the general subject matter of larceny. Id. (Footnote omitted.) (Emphasis supplied.) The Iowa anti-joyriding statute did not go on the books until 1978.

Although it explicitly qualifies the unlawful taking with the words “but without the intent to permanently deprive the owner thereof,” it goes on to provide that it is nonetheless a lesser included offense of theft. The Iowa Criminal Code provides: Any person who shall take possession or control of any railroad vehicle, or any self-propelled vehicle, aircraft, or motor boat, the property of another, without the consent of the owner of such, but without the intent to permanently deprive the oumer thereof, shall be guilty of an aggravated misdemeanor. A violation of this section may be proved as ⁴¹⁹ a lesser included offense on an indictment or information charging theft. Iowa Code § 714.7 (Emphasis supplied.) In State v. Eyle, 236 Or. 199 , 388 P.2d 110 (1963), the Oregon Supreme Court was dealing with what it described as the “offense commonly referred to as ‘joy-riding.’ ” 388 P.2d at 111 .

The Oregon statute expressly applied to “[ejvery person who takes or uses without authority any vehicle without intent to steal it.” Id. (quoting Or.Rev.Stat. § 164.670) (Emphasis supplied.) Following his conviction for joyriding, the appellant there lodged two complaints. He first contended that the State had failed to prove the mens rea of his being “without intent to steal.” The Oregon court held squarely that, despite its mention in the statute, that negative notion was not an affirmative element of the crime: By employing the words “without intent to steal,” the legislature meant to clearly distinguish the crime of “joyriding” from the greater crime of larceny and provide a specific penalty therefor. The words were not included so as to constitute an additional element for the state to prove.

We likewise hold that the phrase “without intent to steal” is not part of the definition of the crime of using a vehicle without authority and need not be proved. Id. at 111 (Emphasis supplied.) The appellant’s second argument was that he should not have been found guilty of the lesser crime because the evidence established that he actually intended to steal the automobile. The Supreme Court responded that even if he was guilty of a greater offense, that did not relieve him of guilt for the lesser included offense: It is next contended that the evidence indicates that the crime committed was larceny rather than “joy-riding” since the defendant did, in fact, intend to steal the automobile. Though this may well be true, defendant cannot complain of the conviction for the lesser offense.

The state may elect to ⁴²⁰ obtain a conviction for the lesser or included offense even though the accused is guilty of the greater offense. It is thus clear that the fact that the defendant might have been guilty of the greater crime of larceny is no defense to his conviction. Id. at 111-12 (Emphasis supplied.) The Oregon Supreme Court’s conclusion was clear: Thus the “joy-riding” statute stands as an “included offense” of larceny, having all the elements of larceny except the intent to steal. 388 P.2d at 111 . In Stewart v. State, 187 So.2d 358 (Fla.Dist.Ct.App.1966), the issue was whether the Florida Unauthorized Use law was a lesser included offense within the crime of automobile larceny.

Like the Maryland law, the Florida law covered broadly the unlawful taking of any boat, vehicle, horse, ass, mule, ox, or any other draught animal. It explicitly prohibited “[tjaking or using temporarily any vehicle or animal of another without authority.” Id. at 360 (quoting FlaFtatAnn. 811.21) (Emphasis supplied.) The statute itself expressly provided, moreover, that “[njothing in this section shall be construed so as to apply to any case where the taking of the property of another is with intent to steal the same.” Id. Notwithstanding that verbiage, the Florida District Court of Appeal held: The crime declared in the just-quoted statute seems to us to be a lesser included offense within the crime of larceny of automobiles. Id. at 361 .

It elaborated: [Wje find no difficulty in reaching the view that the misdemeanor of using a vehicle without the owner’s consent is a lesser included offense within the crime alleged in the ⁴²¹ amended information—the felony of unlawfully taking, stealing, and carrying away a certain motor vehicle. Id. at 362 (Emphasis supplied.) In Spencer v. State, 501 S.W.2d 799 (Tenn.1973), the Supreme Court of Tennessee came to a similar conclusion with respect to unauthorized use being a lesser included offense within larceny: Initially, this Court must determine whether “joyriding” is a lesser included offense of larceny. This issue is one of first impression to Tennessee ... Section 59-504 [Tenn.Code Ann.], describes the offense commonly referred to as “joyriding.” The statute is designed to condemn the acts of a person who takes another’s vehicle unlawfully, but without the intent to deprive the owner of its use permanently.

However, the taking of a vehicle with the intent to steal or permanently deprive the owner of its use is prohibited, and is larceny. From a careful examination of the elements of both crimes, it is clear that the only difference in the two is that in “joyriding” there is not the element of intent to steal. Thus, we hold that the “joyriding” statute stands as an included offense of larceny. Id. at 800 (Citations omitted.) (Emphasis supplied.) In State v. Cornish, 568 P.2d 360 (Utah 1977), the Supreme Court of Utah was dealing with an anti-joyriding statute that expressly provided: Any person who drives a vehicle, not his own, without the consent of the owner thereof and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same is guilty of a misdemeanor ...

Id. at 361 . (quoting Utah Code Ann. 41-1-109) (Emphasis supplied.) That was a case where the fact-finding trial judge expressed the view that “under the evidence, he was uncertain of the intent of the defendant.” Id. at 361 . Under the circumstances, the State had failed to prove beyond a reasonable ⁴²² doubt, if it was required to do so, either 1) that the defendant had the “intent temporarily to deprive” or 2) that he was “without intent to steal.” The Utah Supreme Court had no difficulty rejecting the defense contention that these were fatal flaws in the State’s case: The only fact the state is not required to establish for joy riding, which is required for theft, is the intent to deprive permanently, or for such an extended period of time that a substantial portion of the economic value is lost. The phrases “intent temporarily to deprive” and “without intent to steal” do not indicate a legislative intention that an element of the crime, which must be established to sustain conviction, is the time element.

The state must establish an intent to deprive, but the negative “without intent to steal” viz., not permanently but temporarily, is not an element for the state to plead and prove. Id. (Citation omitted.) (Emphasis supplied.) That Court went on to explain the obvious function of such phraseology in an anti-joyriding or unauthorized use statute: It is not incumbent upon the prosecution to prove the quantum of the intent, for the terms “temporarily to deprive” and “without intent to steal” express no more than a legislative intention to distinguish this crime from the greater offense of theft, which requires proof of an additional element. 568 P.2d at 362 (Citation omitted.) (Emphasis supplied.) The opinion, moreover, made it clear that a function of a crime with a lesser intent is not only to deal with those situations where a lesser intent is affirmatively proved but also with those situations where there is simply a failure of proof as to the greater intent: If the trier of fact is convinced there was an unauthorized use of the vehicle, with an intent to deprive the owner, but is not convinced beyond a reasonable doubt the prosecution has sustained its burden to present and prove one of the ⁴²³ factors set forth; then defendant should be found guilty of the lesser, included offense ... Id.

(Citation omitted.) (Emphasis supplied.) In Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), the Supreme Court of the United States was dealing with the double jeopardy implications of sequential prosecutions and convictions in the Ohio courts for 1) joyriding in an automobile and 2) the theft of that same automobile. The Supreme Court first accepted the holding of the Ohio Court of Appeals that joyriding is a lesser included offense within automobile theft: Every element of the crime of operating a motor vehicle without the consent of the owner is also an element of the crime of auto theft. “The difference between the crime of stealing a motor vehicle, and operating a motor vehicle without the consent of the owner is that conviction for stealing requires proof of an intent on the part of the thief to permanently deprive the owner of possession.” [T]he crime of operating a motor vehicle without the consent of the owner is a lesser included offense of auto theft. Id., 432 U.S. at 163-64 , 97 S.Ct. at 2224 , 53 L.Ed.2d at 193 . In then discussing the double jeopardy implications of that holding, the Supreme Court made it clear that joyriding and automobile theft were, for double jeopardy purposes, “the same offense,” with theft being the greater and joyriding being the lesser included.

Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute “the same statutory offense” within the meaning of the Double Jeopardy Clause. As is invariably true of a greater and lesser included offense, the lesser offense—joyriding—requires no proof beyond that which is required for conviction of the greater—auto theft,. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it. ⁴²⁴ 432 U.S. at 168 , 97 S.Ct. at 2226-27 , 58 L.Ed.2d at 195-96 (Citation omitted.) (Emphasis supplied.); see also United States v. Johnson, 433 F.2d 1160, 1164 (D.C.Cir.1970); State v. Shults, 169 Mont. 33 , 544 P.2d 817, 819 (1976); State v. Blotzer, 188 Neb. 143 , 195 N.W.2d 199, 200 (1972); Commonwealth v. Nace, 222 Pa.Super. 329 , 295 A.2d 87, 89 (1972). Contra Sandoval v. People, 176 Colo. 414 , 490 P.2d 1298, 1300 (1971); State v. Cobb, 2 Ariz.App. 71 , 406 P.2d 421, 426 (1965).

The Legislative Intent of 1880: Our Reading If we were writing on a clean slate, our conclusion would be easy. Only one interpretation of the 1880 statute seems plausible. Based on 1) the explicit and limited elements the 1880 law sets out, 2) its overwhelmingly probable purpose, particularly in view of its close relationship with the horse-stealing statute, 3) its provenance as a broad 19th Century law and not as a 20th Century anti-joyriding measure, 4) the weight of authority around the country in dealing with similarly related crimes, and 5) the inherent logic of coordinating closely-related mentes reae into an integrated whole, it is clear to us that the Legislature in 1880 never intended to establish, as an affirmative mental element, a requirement that the intended deprivation be temporary in nature. It simply intended to eliminate the animus furandi of an intended permanent deprivation necessary for a larceny conviction.

If we were to conclude that the 1880 law intended to establish 1) one crime (horse stealing or auto theft) requiring proof beyond a reasonable doubt of an intended permanent deprivation and 2) a separate crime with a contrary mens rea requiring proof beyond a reasonable. doubt of an intended temporary deprivation, we would be attributing to that Legislature a design to create an eye in the hurricane of culpability, wherein an unlawful appropriator of horses and automobiles might stand completely unscathed. All sorts of culprits might slip between those very wide cracks. It is our belief that the ⁴²⁵ Legislature intended for the related crimes cleanly to abut, with no troublesome crevices between. It follows that, when the Legislature enacted the Unauthorized Use law, it simply eliminated the animus furandi of larceny so that it could handle not only one but a number of circumstances in which the mens rea of the culprit might somehow be in question: 1) the situation in which it is clearly established that the intended deprivation was only temporary, 2) the situation in which the intended deprivation was probably permanent but where there is a failure to carry the burden of persuasion in that regard, 3) the situation in which the fact finder is actually persuaded that the intended deprivation was still of uncertain and undetermined duration in the mind of the culprit, and 4) the situation in which there was simply no evidence at all bearing on the duration of the intended deprivation.

To reach any other conclusion would require us to attribute to the Legislature of 1880 the absurd scheme of saying to would-be horse thieves, “If you intend to keep the horse a long time, you go to jail; if you intend to keep the horse a short time, you go to jail; but if you truly don’t know how long you intend to keep the horse or if we can’t figure out how long you intend to keep it, you go free.” That would be an inane legislative intent that we cannot ascribe to the lawmakers of the Gilded Age. The intended temporary deprivation notion, as an affirmative element, just won’t fly. The Change, If Any, From Larceny to Theft In assessing the possible inconsistency between companion guilty verdicts, we are, of course, no longer measuring a conviction for Unauthorized Use, under Md.Ann.Code art. 27, § 349, against a conviction for the Larceny of a Vehicle, under the former § 348. We are now measuring it against a conviction for the Theft of an automobile, under § 342.

Does that make any difference to the present analysis? No. ⁴²⁶ By ch. 849 of the Acts of 1978, the Maryland General Assembly repealed a number of laws dealing with common law larceny, a variety of special larcenies of special chattels, and many other larceny-related offenses. It brought them together as part of a new Consolidated Theft Statute, codified as MdAnn.Code art. 27, §§ 340-344. Section 341 of the new law declared that the consolidation was not intended to abolish or to modify any of the preexisting crimes but only to treat them as instances of a single more broadly defined and more efficiently prosecuted crime known as Theft.

Section 342 defined Theft as a crime including, along with other elements, the mens rea of having “the purpose of depriving the owner of the property.” Section 340(c) provided a series of definitions for that term “deprive.” The definitions embraced four situations: “Deprive” means to withhold property of another; (1) Permanently; or (2) For such a period as to appropriate a portion of its value; or (3) With the purpose to restore it only upon payment of reward or other compensation; or (4) To dispose of the property and use or deal with the property so as to make it unlikely that the owner will recover it. MdAnn.Code art. 27, § 340(c) (1991). As part of a debate that is largely academic over distinctions without differences, some argue that that series of definitions of “deprive” has broadened to some extent what was once the animus furandi of larceny. Others argue that the series of definitions is no more than declaratory of the way the case law had broadly applied the larcenous animus furandi.

In any event, for present purposes, the only member of the series that concerns us is the second definition of “deprive” as “withholding] property of another ... [f]or such a period as to appropriate a portion of its value.” ⁴²⁷ It is clear that that definition of “deprive” does not embrace every unauthorized use of another’s property, no matter how minimal or how brief. If that were the case, what is now the crime of Unauthorized Use would be subsumed into the consolidated crime of Theft and § 349 would be repealed by implication. When ch. 849 of the Acts of 1978, however, meticulously listed the preexisting crimes that would be subsumed and the corresponding statutes that would be repealed, § 349, dealing with “Unauthorized use of livestock, boat, or vehicle,” was deliberately left untouched. The critical distinction between it and the larceny-related crimes that were subsumed into consolidated Theft is that it does not possess the special mens rea requirement of Larceny.

Even if we were to assume that § 340(c)(2) has ratcheted downward the former animus furandi of Larceny so as to embrace even less “permanent” intended deprivations, it still possesses more of a mens rea requirement than does Unauthorized Use. The utility of § 349’s elimination of any special mens rea is that it, unlike Larceny or Theft, is available to penalize unlawful captions and asportations when the intended deprivation is less than long enough to appropriate a portion of the value of the property, where the intended deprivation is of an indeterminate quality or duration, and where the intended deprivation is simply unproved. The change from the Larceny of Horses or Vehicles to consolidated Theft has not extinguished the issue we are still called upon to address. 83 Years Later: Making Something Out of Nothing Our biggest problem, of course, is that we are not writing on a clean slate. It is not enough, however,