Myers v. State

Offutt, J., delivered the opinion of the court. Andrew Beid Myers, the appellant, was tried and convicted in the Criminal Court of Baltimore City on the 15th of March, 1920, of the larceny of an automobile^ and sentenced to be confined in the Maryland .Penitentiary for ten years, the sentence to run concurrently with like sentences in two- other cases. The indictment contained two counts, in the first of which the appellant was charged with the larceny of the- automobile, and in the second he was charged with having and receiving it knowing it to have been feloniously stolen. The automobile was the property of Calvin C. Baker and Charles H. Lambeth, of Norfolk, Virginia, and had been driven from Cape Charles, Virginia, to- Baltimore hv Mr. Baker, who left it there with Mr. Lambeth on August 12th, 1919.

On August 13th, Mr. Lambeth left the car in front of the Maryland Theatre while he attended a performance at the theatre and, when he returned after the performance to where he left it, it was no longer there. He reported the loss to the police, and gave such identifying numbers and marks as lie remembered and which might aid them in locating it. On October 25th two detectives of the detect,ive department of Baltimore noticed an automobile- at the- 'Hudson Service Station, the engine numbers of which had been changed, and when Myers, who proved to he operating the car, called for ⁴⁹⁸ it and was about to drive it away, they arrested him. Myers, when asked about his possession of the car, said that he owned it and had bought it from a man by the name of Kane.

This machine was subsequently identified by Lambeth and Baker as the car which had been stolen on August 13th, and Myers was indicted for the larceny thereof. His defense was that he had bought the machine in good faith from Joseph W. Kane, who lived at 4102 Park Heights Avenue, Baltimore, on the 21st of August, and that when he bought it he took a bill of sale for it from Kane, but that this bill of sale and his own registration card had been removed from the automobile while it was stored at Griffin’s Garage, or after it had been taken from there by the Police Department, and he denied knowledge of any changes in the numbers on the car. During the course of the trial exceptions were reserved to the rulings of the court in respect to the admission of evidence, and these rulings are the subject of the fifteen bills of exceptions which the record presents for our consideration. The first exception relates to the action of the court in permitting a witness for the State to testify that the engine numbers on the automobile referred to in the testimony had been changed.

The ground for this exception is not apparent, and in our opinion the evidence was properly admitted. The appellee was unquestionably entitled to show the condition of the car both when it was stolen and when it was recovered, and if the engine numbers had been changed, there is no reason why the jury should not have been told of that fact. Oalvin O. Baker testified that he and Charles H. Lambeth owned the automobile in question together. The traverser objected to this evidence, and to the action of the court in overruling this objection the fifth exception, was taken.

We find no error in this ruling. The ownership of the car was a relevant fact, and Baker as the purchaser thereof was a competent witness to prove it. The witness, Oalvin O. Baker, ⁴⁹⁹ having testified to the value of the automobile and that he had the original motor number “in his pocket,” was asked if he “had any card or anything bearing the original motor number.” This question was objected to, and the objection overruled, and the witness answered that the card in question was a plain card given by the Automobile Commissioner; that he got the card from the Hudson people when he notified the Hudson people his car was lost, and when he had the car’ insured he had to give the number which he got from where he bought the car; that he had the number he gave the insurance people, the motor number, in his pocket, and he was then asked to refer to the memorandum. The appellant objected, and the witness was then asked by the court: “Did you check it up yourself to see that the number was on the engine?” and he replied, “Yes, sir.” After the card was shown to the judge presiding at the trial, he asked the witness the following question: “You say you cheeked the number up with the actual motor?” to which he answered, “Yes, sir.” Objection to this question was also overruled, and these rulings are the subject of the sixth and seventh exceptions.

These two questions were clearly preliminary and could not possibly have injured the appellant, and there was no error in allowing them to be asked. It cannot be assumed from anything contained in the record that the card or memorandum, referred to in them, was either referred to by the witness to refresh his recollection, or offered in evidence, but on the contrary the last reference clearly referring to it was that of the presiding judge, tvho said: “I do not see how it is permissible.” It does not appear to have been used or admitted in evidence. The same witness was then handed a paper and asked to state what it was. The defendant objected and the State made the following offer: “I want to lay the foundation and show where this memorandum was made, and the examination that he made of the car and that there was a checking up at that time.” An objection to this offer was overruled, and ⁵⁰⁰ the witness again asked to tell what the paper was.

The objection to this question was also overruled, and the witness replied that the paper was a receipt for the car from Mr. Aaronson, New York, from whom he bought the car; that the receipt bears the