Shupe v. State

Sybert, J., delivered the opinion of the Court. The appellant, William Frank Shupe, was convicted in a non-jury trial in the Criminal Court of Baltimore of the larceny of $316.67 and was sentenced to a term of 18 months in the House of Correction. The appellant entered this appeal after the sentence was suspended and he was placed on probation for 18 months and ordered to make restitution. The evidence produced by the State showed that on the night of August 18, 1963, one Mosby was on duty at a large 24 hour gasoline station in Baltimore.

At approximately 11 P.M. another employee, Jenkins, who is the brother-in-law of the appellant, came on duty to relieve Mosby. The appellant, Shupe, arrived at the station in his truck a few minutes later. Both Jenkins and Mosby testified that at about midnight Mosby gave Jenkins all the cash belonging to the station that he had on his person. Jenkins also testified that when he came on duty there was another employee by the name of “Charlie” (whose last name he could not recall) on duty besides Mosby and that Charlie handed him an unknown amount of money and left immediately.

Mosby, however, testified that he was on duty alone when Jenkins arrived. Mosby said the amount turned over by him to Jenkins included all the cash receipts taken in by him and the cash given to him when he had come on duty earlier (“As near as I can remember, I think it was from a boy by the name of Buck Webb”). Neither Jenkins nor Mosby counted the money and neither knew how much money changed hands though Jenkins testified that he saw some tens and twenties. ³⁰⁹ They both testified that Shupe was just outside the open office door when Mosby gave Jenkins the money inside. Jenkins then put the money into a cigar box which was kept in an unlocked storeroom in the rear part of the station.

Access to the storeroom was possible only from a service or “lube” room which could be entered from the office or through large doors at the front. The door of the storeroom was on swinging hinges and was never locked. Mosby left the station a little after midnight. Jenkins testified that soon thereafter while he was taking care of some customers at the gas pumps out front he saw Shupe inside the station.

His versions of the circumstances were substantially different on direct and cross examination. On direct examination, Jenkins said he saw Shupe come out of the storeroom into the lube room, walk out of the station, and get into his truck. He said Shupe “hollered” to him and said he would see him after awhile, and then drove away. He stated twice that he said nothing to Shupe at that time.

On cross examination, however, he testified that he didn’t see Shupe come out of the storeroom, but saw him in the lube room a few feet from the storeroom door, and coming from that direction. He said he asked Shupe what he was in there for, and that Shupe replied that he was looking over the place. He also said that Shupe bought some gasoline from him, while he was waiting on the other customers, and paid him with a ten dollar bill, also giving Jenkins one dollar which he owed him. Jenkins testified that he was kept busy waiting on customers for from 20 to 30 minutes after Shupe had left.

Then at about 1 A.M. he wTent into the storeroom and discovered that the money rvas gone. He reported the loss to the police. At around 2 A.M. Shupe returned to the station and Jenkins accused him of having stolen the money. Soon thereafter Shupe was arrested and denied that he had taken the money.

Jenkins testified that Shupe had been drinking when he first visited the station on August 18, that he mentioned that he would “feel better” if he had more money, and he said that Shupe knew where the money was kept. The owner of the station testified as to the amount of money that should have been in Jenkins’ possession, or in the cigar box, at the time of the theft, and explained how he arrived at ³¹⁰ the amount. He said that an accounting was made at the station in the regular course of business only once during a 24 hour period, usually in the morning. It was the procedure to read the meters on the several gasoline pumps, inventory other petroleum products, subtract credit sales, and then the resulting figure should equal the amount of cash receipts during the 24 hour period.

There were five employees. The money during the 24 hour period would be kept on the person of the employee on duty or in the cigar box and would be passed from employee to employee without an accounting. It is not clear whether or not an exact