Krauss v. State

Henderson, J., delivered the opinion of the Court. The appellants, William Krauss and Edwin Schmidt, along with William Kramer, were charged upon warrant with “unlawfully trespass upon the property of said Edward Huntzberry”, 1125 Ritchie Highway, in Anne Arundel County. Kramer was tried before Trial Magistrate Pitcher, in Anne Arundel County, and acquitted. The appellants were tried before Trial Magistrate DeAlba and convicted.

They appealed to the Circuit Court for Anne Arundel County, and were there tried, convicted and each fined $10.00 and costs. We granted certiorari. The appellants and Kramer were employed by Eastern Acceptance Corporation to repossess a 1950 Oldsmobile automobile to which it held title under a recorded conditional contract of sale assigned to it by the vendor on December 14, 1956. This contract was in default, and it provided that in such event the “Seller may without notice lawfully enter any premises where the car may be found, take possession of it and custody of anything found in it”.

See also Code (1957), Art. 83, sec. 141. The contract further provided that the buyer would not “encumber” the car. On the morning of June 18, 1957, Schmidt located and identified the automobile standing on an open lot behind a filling station owned by Huntzberry. Schmidt testified that Huntzberry told him on the telephone that he claimed a garageman’s lien on the car for storage and towing.

Huntzberry denied talking to Schmidt, but said he learned of the visit from his son. Schmidt returned to the station about 1 A. M. on the following morning accompanied by Krauss and Kramer. A policeman saw their car standing on the lot, and investigated. They told him they were checking the serial number of the car. ³⁷² There was no testimony that they had attempted to move the car at the time the policeman arrived on the scene.

Schmidt admitted that they intended to repossess it. “If it would run we probably would have driven it.” They had not attempted to start it. The policeman ’phoned Huntzberry, who had closed the filling station at midnight. Huntzberry came back and subsequently swore out the warrant. He admitted that there were not any “no trespassing” signs posted on the premises.

The State concedes that the appellants were charged under Code (1951), Art. 27, sec. 26, (Code (1957), Art. 27, sec. 577), and not under sec. 300 (Code (1957), Art. 27, sec. 576), relating to posted property. Sec. 26 reads in part as follows: “Any person or persons who shall enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so shall be deemed guilty of a misdemeanor, * * * and, provided, further, that nothing in this section shall be construed to include within its provisions the entry upon or crossing over any land when such entry or crossing is done under a bona fide claim of right or ownership of said land, it being the intention of this section only to prohibit any wanton trespass upon the private land of others.” The State concedes that at common law a trespass to private property is not a crime unless