Melia v. State

Orth, J., delivered the opinion of the Court. The appellants were jointly indicted and jointly tried by the court in the Circuit Court for Montgomery County. Each was convicted of storehouse breaking with intent to commit a felony (1st count) and petit larceny (3rd count). Concurrent sentences of 5 years on the 1st count and 9 months on the 3rd count were imposed on Melia and concurrent sentences of 4 years on the 1st count and 9 months on the 3rd count were imposed on Shelhorse.

On appeal from the judgments the contentions of the appellants go to the sufficiency of the evidence. The 1st count of the indictment charged that the appellants did break “the storehouse, the premises of Carroll-J ames Co., Inc., a corporation, located at 8522 Georgia Avenue, Silver Spring, Montgomery County, Maryland” with intent to commit a certain felony, to wit, to steal goods “in excess of the value of one hundred dollars.” 1 The 3rd count of the indictment charged that the appellants did steal “one reel of 4/0 electrical wire, being of the value of twenty-five dollars, current money; fifteen feet of T-W 12 gauge wire, being of the value of two dollars, current money; three rolls of copper refrigeration tubing, each roll of tubing being of the value of ten dollars, current money * * * of the goods of Carroll-James Co., Inc., a corporation.” Two witnesses testified in behalf of the State — Herbert Shields, an eyewitness to the crime and Harry A. Carroll, Jr., an officer of the businesses occupying the storehouse. 2 It is clear ³⁵⁸ from the testimony of Carroll that there was no corporation by the name of “Carroll-James Co., Inc.” There were two corporations in existence at the time of the crime, “C. & J. Refrigeration and Air Conditioning Company, Inc.” and “Carroll Electric Company, Inc.” He was secretary-treasurer of the former and president of the latter. C. & J. Refrigeration and Air Conditioning Company, Inc. traded under the name “Carroll-James.” The storehouse basement — “It’s next to the Tastee Diner * * * It’s the 8500 block, I believe * * * of Georgia Avenue * * * in Montgomery County” — was rented by “C. & J., Carroll-James” and owned by “Mr. Warner.” The goods in the storehouse were owned by both corporations and had a value of between $1800 and $2000. He was called by the police about 3 :00 — 4:00 A.M. on 25 March 1967 and went to the storehouse.

The police on the scene told him “somebody had busted into the place * * * I looked at the door and there was a roll of cable outside the front of the door and the door had been busted in and the panel, one of the panels had been knocked out * * * where the lock was fastened onto the door was broken away from the door.” He had been at the premises between 1:00 P.M. and 3:00 P.M. on 24 March, unlocked the door when he went in and locked it when he left. The door was not damaged at that time. He had never at any time given Melia or Shelhorse permission to enter the storehouse; he had never seen them before the breaking. The cable he saw “was approximately one hundred feet of No. 4 TH or RHW insulation wire on a reel.” Its value was “between sixty and seventy dollars.” It was the property of Carroll-Electric Company, Inc. An inventory taken later disclosed that the only other goods missing was “some copper tubing.” He did not know its value.

Herbert Shields testified that he worked at the Tastee Diner next door to the storehouse. On 25 March he finished work at 3:40 A.M. and started to wash his car at the rear of the Diner before going home. The area was well lighted and he saw a 'man coming out of the basement door of the storehouse — “the electric place weerh they kept the equipment”- — carrying some electric wires. When the man saw Shields “he put wires in the trunk” of a car and slammed the lid.

Shields saw another man standing by the car. Both got in the car and drove away. The ³⁵⁹ car lights were not turned on. Shields called the police.

When the police arrived he went to the storehouse with them. The door was open and the lock broken off. He saw some electrical wires on the ground. At the trial Shields identified Melia and Shelhorse as the men lie had seen.

He said Melia got in the driver's side of the car and Shelhorse in the passenger side. On cross-examination he said the car was a 1964 or 1965 White Ford four door with Maryland tags. He gave the police some of the tag numbers. He recognized the men because “they come in the Diner all the time.” He did not know their names except that Shelhorse was called “Peewee.” At the close of the evidence offered by the State, the appellants moved for a judgment of acquittal “on each and every count, on the grounds of fatal variance.” After argument by the State and the defense the State moved to amend the indictment and after further argument the court granted the motion to amend, over objection, and denied the motion for judgment of acquittal.

The proposed amendment was not clearly articulated 3 but we are satisfied from the record that the amendment ultimately made was to substitute the name of each of the two corporations for “Carroll-James Co., Inc.” wherever it appeared in the indictment. 4 ³⁶⁰ On appeal the appellants do not contend in their brief that the granting of the motion to amend was error, assuming incorrectly that the court did not grant the motion. In oral argument it was conceded that the motion was granted. We find no error in the granting of the motion to amend. Mid.

Rules, 714; Corbin v. State, 237 Md. 486 ; Wilkins v. State, 4 Md. App. 334 . As amended, therefore, the first count of the indictment charged that the storehouse broken was the premises of C. & J. Refrigeration and Air Conditioning Company, Inc. and Carroll Electric Company, Inc. and the third count charged that the goods stolen were the properties of those two corporations. THE LARCENY CONVICTION Simple larceny at common law is the taking and carrying away of the personal goods of another of any value from any place, with a felonious intent to steal such goods. Clark and Marshall, A Treatise on the Law of Crimes (6th Ed.) § 12.00, p. 706. 5 Since larceny is a crime against possession, Brown v. ³⁶¹ State, 236 Md. 505 ; Wharton’s Criminal Law and Procedure (Anderson) § 464, an allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as laid in the indictment is an essential factor to justify a conviction, Anderson v. State, 3 Md. App. 85 .

It is well settled that ownership may be laid in the real owner — general interest — or in the person in whose possession the goods were at the time of theft — special interest. Pet rey v. State, 239 Md. 601, 603 . And it is not necessary to state the nature of the interest; the property may be described as the goods of the owner or as the goods of the person having possession. 32 Am. Jur., Larceny, § 114, p. 1067.

So an allegation that a person is the owner may be sustained by proof that he has either a general or a special interest. But, as amended, the larceny count alleged that C. & J. Refrigeration and Air Conditioning Company, Inc. and Carroll Electric Company, Inc. were the owners oí the goods and the proof showed that only Carroll Electric Company, Inc. was the owner as holding the legal interest. 6 The question is whether this was a fatal variance. ³⁶² If the count be construed as laying the ownership in the two named corporations jointly (although it did not so state), it was not sustained by the proof that the stolen goods belonged to one of them individually nor would it be sustained by proof that separate articles belonged to one of the owners named and the remainder to the other. 52 C.J.S. § 99, Larceny, p. 918. 7 If it was not certain whether the proof would show that the goods were the property of one of the corporations or the other or that one had possession although the other was the owner it would have been proper to allege the ownership in one corporation in one count and in the other corporation in another count of the same indictment, for the purpose of meeting the varying degrees of proof which the testimony might develop. But it was not proper, in one and the same count, to lay the property alleged to have been stolen in more than one corporation, ³⁶³ because each count must contain such allegations as will enable the trier of facts to find the accused guilty on that count. Burgess v. State, 161 Md. 162, 166 ; 32 Am.

Jur. § 113, Larceny, p. 1025. And although it is the rule that the stealing of several articles at the same time belonging to several persons may constitute one offense and be charged in one count, it is necessary that the count allege the ownership of each article, and not just generally that the articles belonged to the several owners. State v. Warren, 77 Md. 121. 8 The count in the instant case did not do so. We hold that there was a variance between the allegata and the probata, that the variance was material, and that the judgment as to the larceny count must be reversed.

THB STOREHO USB BREAKING CONVICTION As amended, the first count of the indictment charged that the appellants “* * * the storehouse, the premises of C. & J. Refrigeration and Air Conditioning Company, Inc. and Carroll Electric Company, Inc., located at 8522 Georgia Avenue, Silver Spring, Montgomery County, Maryland there situate, unlawfully did break with intent to commit a certain felony there and therein, to wit, with intent then and there certain goods and chattels in excess of the value of one hundred dollars, current money, ³⁶⁴ in the said storehouse then and there being found, then and there unlawfully to steal, take and carry away; * * *.” Evidence adduced was that the premises were rented by “C. & J., Carroll-James,” that “Carroll-James” was the trade name of C. & J. Refrigeration and Air Conditioning Company, Inc., and that goods owned by each of the refrigeration company and the electric company were in the storehouse when it was broken. The question is whether, in these circumstances, there was a material variance between the allegata and the probata. Code, supra, Art. 27, § 32, proscribing the offense here charged, does not expressly provide that the storehouse broken be that of another. 9 But the usual holding is that an indictment for burglary, whether at common law or under a statute, must allege ownership of the building broken. 13 Am. Jur. 2d, § 37, p. 342. 10 The ownership, however, need not be that of the legal title owner.

The Court of Appeals said in Hackley v. State, 237 Md. 566 at 569: “Most, but not all, States require that the ownership of the building burglarized be stated in the indictment and proven so as to negative a right of entry by the accused and to establish identity. See Anno. 169 A.L.R. 887 . It is generally held that the ownership alleged and shown need not be that of the legal ³⁶⁵ title holder if another, not the accused, is in lawful possession of the building involved under a special property interest. The propositions set forth in this paragraph are supported by 13 Am.Jur.2d Burglary Sec. 37, p. 342 and 4 Wharton’s Criminal Law and Procedure ( Anderson 1957 ), Sec. 178-1, p. 604, and the cases.” And it has been held that the ownership of the building broken into is not an essential element of the crime and need not be proved precisely as alleged. 3 Underhill, Criminal Evidence (5th Ed. 1957) § 720, p. 1678 and cases cited in note 83.

We think that in the instant case the allegation in the first count of the indictment and the proof were enough to show that the storehouse broken into by the appellants was not theirs, that they had no right to enter it without the permission of the lawful occupier, and enough to identify the building broken into and the personal property therein so as to protect the appellants against a subsequent prosecution for the same offense, which is all that is required. Sparkman v. State, 3 Md. App. 527,