Madero v. State

Melvin, J., delivered the opinion of the Court. Menchine, J., concurs and filed a concurring opinion at page 507 infra. Fred James Madero was tried by a jury in the Circuit Court for Baltimore County (Proctor, J. presiding) for the crimes of embezzlement, larceny after trust, receiving stolen goods and grand larceny. At the close of the evidence the trial judge granted appellant’s motion for acquittals on the embezzlement, and larceny after trust charges.

The grand larceny and receiving charges were submitted to the jury and it returned a verdict of guilty of grand larceny. On appeal, appellant contends that the State failed to prove that appellant had committed common law larceny. At the time of the incident from which these charges stemmed, appellant was employed by Columbia Vending Service Co. Although appellant’s duties of employment were never fully developed at trial, it was established that he serviced vending machines on a designated route for the company. Apparently servicing machines entailed insuring that they had adequate supplies and change, and collecting the proceeds from sales.

On January 17, 1974, while he was thus servicing the machines at Spring Grove Hospital, Steve Black, the alleged accomplice, entered appellant’s truck and took several bags of money from the truck. Appellant admitted that he failed to lock the truck, and also stated that the bags of money were on the floor of the truck and not in a safe that was in the truck. After a careful review of the record, we conclude that this evidence plus other evidence produced by the State of inculpatory statements made by the appellant was legally sufficient for a jury to be fairly convinced beyond a reasonable doubt that appellant was an accessory to the taking of the money from the van. Whether appellant’s participation, however, amounted to ⁵⁰² the commission of a larceny by him is a far more difficult question.

As Judge Orth (now Chief Judge) said in Farlow v. State, 9 Md. App. 515 (1970), at 516: “If a person unlawfully appropriates the personal property of another to his own use the path between proof of that fact and conviction of a crime should be straight and clear. But in the absence of a legislative enactment creating an all inclusive crime of theft it is not. We do not have such a statute in Maryland. The result is that the precise factual circumstances determine what offense is committed and one offense is distinguished from another by fine distinctions, always technical and frequently absurd.

See Loker v. State, 250 Md. 677 ; Loker v. State, 2 Md. App. 1; Couture v. State, 7 Md. App. 269 ; Gordon v. State, 5 Md. App. 291 ; Lockard v. State, 3 Md. App. 580 ; Van v. State, 1 Md. App. 347 .” The opinion goes on to define and distinguish the various common law and statutory theft offenses, not all of which are pertinent here. Common law larceny is “the wrongful and fraudulent taking and removal of personal property from the possession of another against his will, with intent to deprive the person entitled thereto of his ownership therein”. Robinson v. State, 4 Md. App. 515, 532 . “The ‘taking’ refers to the taking of possession from possession of one entitled thereto. Thus it must be trespassory taking and trespass against possession is the matrix of the common law larceny concept.” Farlow , at 517.

The statutory crime of embezzlement is found in Art. 27, § 129 of the Maryland Code, and reads: “Whoever being a . . . servant . . . shall fraudulently embezzle any money . . . which . . . shall be . . . taken into possession by him, for . . . his master or employer, shall be deemed to have feloniously ⁵⁰³ stolen the same from his master or employer, although such money . . . was not received into the possession of such master ... otherwise than by the actual possession of his ... servant... Appellant contends that the trial court erred when it let the jury consider the charge of larceny. It is appellant’s position that the evidence showed that appellant was entrusted with the money and that therefore if he committed a wrong it was embezzlement and not larceny. The State argues that the accomplice, Steven Black, committed a larceny by taking the money from the possession of the vending service company, and that appellant was guilty of larceny since he was an accessory to Black’s taking.

The State assumes without argument that appellant was a custodian and not a possessor of the funds. The distinction is important, for as Chief Judge Orth said in Farlow , at 517: “There has been a constant judicial struggle to ascertain who has possession because an accused cannot, in legal contemplation, trespass against a person’s property, if that person does not have possession.” Thus, if at the instant Steve Black carried off the money bags, the money was in the possession of appellant and not Columbia Service, then there would be a larceny committed only if appellant did not consent to the taking. Since implicit in any finding that appellant participated in the scheme to take the money is a finding that he consented to the taking, proof of larceny by either Black or appellant would fail if appellant had possession of the money. There would be no evidence of a trespass against the one with the right to possession.

At best the crime would be embezzlement by appellant and his accomplice, Black. See People v. Kelly, 69 Calif. App. 558 (1924), for an example of a case where a California court upheld the embezzlement conviction of an accomplice of a bank teller embezzler. The fact that appellant had control of the money is, ⁵⁰⁴ however, not dispositive of whether appellant had possession.

The English common law made fine distinctions between possession and custody by servants. Servants were considered to have mere custody of goods when they received the goods from their master to be returned to the master. If the servant appropriated to his own use goods that he was thus in custody of, the act was considered a trespass to the master’s right of possession such that the act would constitute larceny by the servant. If the servant, however, received his master’s property from a third party, he was deemed to have received possession and not mere custody.

He, therefore, could not be guilty of larceny until he gave up possession to the master. Rex v. Bazely, 2 Leach 835, 168 Eng. Rep. 517 (1799). To transfer possession to the master, however, it was not necessary to transmit the property personally to the master.

Where the servant received the property from a third party and placed the