Johnson v. State

'Per Curiam. The Appellant, Harold Phillip Johnson, and his co-defendant below, Charles R. Brown, Jr., were convicted of unauthorized use of an automobile under Md. Code, Art. 27, Sec. 349, by Judge J. Gilbert Prendergast, sitting without a jury, in the Criminal Court of Baltimore and each was sentenced to the Maryland Correctional Institution for an indeterminate period, not to exceed three years. Both appealed to this Court but Brown subsequently dismissed his appeal. Johnson’s sole contention is that the evidence was legally insufficient to sustain his conviction.

The record indicates that on March 8, 1966, at approximately 3:00 A.M., a police officer on routine patrol, observed a 1957 Chevrolet automobile parked on a public street with exhaust ⁴⁸⁹ fumes emitting therefrom. Upon investigation, he found that the temporary license plates thereon had expired and, as he approached the car, the two individuals in the front seat “ducked down.” Upon questioning, Brown, who occupied the driver’s seat, admitted that he did not own the car, but stated he had a title for it. The title he produced was for a car registered as “junk.” The officer was unable to check the serial number because the serial number plate had been removed from the car. Brown produced a key for the ignition and, according to the officer, Johnson, who was sitting in the front passenger seat, produced one which he said was for the trunk.

The officer noted that the car had been sprayed with white paint and he observed “small jumper cables” on the front seat. Brown and Johnson wrere thereupon arrested and taken to the police station where Brown gave a written statement in which he admitted having taken the car three or four weeks before, but claimed that he took it from a location several miles from the place where the owner said she had last parked it. Johnson gave no statement, but testified in his own defense that he thought Brown owned the car and accounted for his presence in the car at the time of his arrest by asserting that he and Brown were awaiting the arrival of a friend of Brown’s to accompany them to a produce terminal where they hoped to obtain temporary employment, although he had previously testified that he was regularly employed. He denied any knowledge of a piece of paper found in the car with his father’s name thereon.

He conceded that he had given an automobile key to the officer but claimed it was the key to a car that “I used to own.” He admitted that at the time of his arrest he was on parole from a conviction for automobile larceny in 1965. It is contended on Johnson’s behalf that since there was no evidence that he was responsible for the larceny of the automobile, he could not be found guilty of unauthorized use. Such a contention, however, is based on a misconception of the elements constituting the crime. The scope of the crime was delineated in Anello v. State, 201 Md. 164, 167 , as follows: “In Maryland it is a misdemeanor for any person, his aiders or abettors, to take and carry away out of ⁴⁹⁰ the custody or use of any other person any of the enumerated kinds of property, including motor vehicles, although it may appear from the evidence that the offender, his aiders and abettors, took and carried away the property for his or their present use, and not with the intent of appropriating or converting the same.

Code, 1951, art. 27, sec. 415. This statute originated in 1880 when the Legislature created the misdemeanor of larceny of the use of