Tabbs v. State

Murphy, C.J., delivered the opinion of the Court. Appellant, a Baltimore City police officer, was found guilty by a jury in the Criminal Court of Baltimore of (1) having feloniously embezzled $80.00 from the Police Commissioner of Baltimore City in violation of Maryland Code, Article 27, Section 129, and (2) misconduct in office (malfeasance or misfeasance) by reason of such embezzlement. He was sentenced to two years imprisonment on each offense, the sentences to run concurrently. On appeal, it is contended that there was no evidence legally sufficient to show that an embezzlement violative of Section 129 ever occurred.

Insofar as pertinent, Section 129 provides: “Whosoever * * * being employed for the purpose or in the capacity of a cashier, servant, agent, officer or clerk, by any person or body corporate shall fraudulently embezzle any money * * * which * * * shall be delivered to or received, or taken into possession by him, for or in the name or on account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer, although such money * * * was not received in ¹⁸⁰ to the possession of such master or employer, otherwise than by the actual possession of his cashier, servant, agent, officer, clerk or other person so employed, * * There was evidence adduced at the trial from which the trier of fact could properly find that on January 30, 1968, agents of the Federal Bureau of Narcotics and Dangerous Drugs and officers of the Baltimore City Police Department were cooperating in an investigation, as a consequence of which $1,512.00 in federal government funds were turned over to federal agent Rhodes, the serial numbers of .the bills previously having been recorded; that information was then transmitted to appellant in his capacity as a police officer that a man meeting Rhodes’s description would be in the Greyhound Bus Station in Baltimore at 8:00 p.m. that night and would be carrying prohibited narcotics and a large sum of money; that appellant, together with his partner Lawrence Griffin, arrested Rhodes at the station, took him to police headquarters, and undertook to count his money, during which time, though his attention was momentarily distracted, Rhodes observed appellant place his hand in the area of his left leg; that after the money was counted, appellant placed $1,432.00 in an envelope and turned it over to the desk sergeant; that the desk sergeant counted the money and gave Rhodes a receipt for $1,432.00; that Rhodes protested that $1,512.00 had been taken from him by appellant; that thereafter appellant and Griffin left police headquarters to go to their car when they were accosted by federal agents and city officers, told to keep their hands out of their pockets, and taken to the narcotics office in police headquarters; that on the way to the narcotics office appellant made repeated attempts to put his hands into his pocket; that when they arrived in the narcotics office, the unoccupied desk of Sergeant Leon Tomlin had nothing on it except a name plate and a telephone; that appellant walked by Tomlin’s desk with his back to the desk and with his hands behind his back; that immediately thereafter folded bills in the amount of $80.00 were ¹⁸¹ observed lying on the corner of Tomlin’s desk; and that these bills were identified by their serial numbers as part of the federal funds which Rhodes was carrying when arrested by appellant. By its express terms, Section 129 requires proof that the accused (a) was employed as a cashier, servant, agent, clerk, or officer by a person or body corporate; (b) that in such capacity he received personal property “for or in the name or on account of his master or employer”; and (c) that he thereafter fraudulently embezzled such property. Gordon v. State, 5 Md. App. 291, 303 . We think it clear that appellant, as a Baltimore City police officer, was within the meaning of Section 129 a servant, agent, or officer of the Police Commissioner of Baltimore City.

By Chapter 203 of the Acts of 1966 (codified as Sections 16-1, et seq. of the Code of Public Local Laws of Baltimore City, 1969 Edition) the Police Department of Baltimore City is constituted an agency of the State of Maryland, the Police Commissioner being designated as the “chief police and executive officer of the Department” and, as such, “vested with all the powers, rights and privileges attending the responsibility of management,” specifically including the power