# Nolan v. State > Court of Appeals of Maryland · May 9, 1957 · 213 Md. 298 URL: https://www.frixlaw.com/law-library/cases/9754841 ## Case - **Full name:** Nolan v. State - **Court:** Court of Appeals of Maryland - **Decided:** May 9, 1957 - **Citations:** 213 Md. 298; 131 A.2d 851; 1957 Md. LEXIS 587 - **Precedential status:** Published - **Opinion:** Concurrence by Prescott - **Judges:** Bruñe, Corrins, Henderson, Hammond, Prescott - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754841 ## How later opinions describe it (automated extraction) - finding embezzlement statute copied “almost verbatim” from England’s law should be interpreted similarly so that money taken from cash drawer was a trespass and therefore larceny, not embezzlement - holding that prior acquittal was admissible for sole purpose of affecting weight of evidence against accused ## Opinion text Prescott, J., filed the following concurring opinion: It is unfortunate not to be able to concur fully in such an. able and carefully prepared opinion as that filed by a majority of this Court. However, as it seems to me that it reestablishes many of the tenuous niceties between larceny and embezzlement with which the early English cases are replete, and that it unnecessarily will embarrass many future prosecutions although the accused palpably may be guilty, I have-decided to state the reasons that prevent my complete concurrence. The facts are quite fully covered in the majority opinion,, so, they will not be repeated. The holding is, that a manager of an office, who has complete charge of its operation and who- *317 is “responsible for everything that went on there” is not guilty of embezzlement because the money received by himself and two other employees was first placed in the drawers of a cash register in the small office that he managed before he fraudulently converted it to his own use. It is conceded that had he taken it before it went into the drawers, his crime would constitute embezzlement; but the ruling of the Court is, that as the money went into the drawers (although under his complete custody and control) it went into the constructive possession of the owner and its taking thereafter constituted larceny and not embezzlement. Embezzlement as a crime was unknown to the common law. At that time, its closest kin was larceny; but, larceny had two defects by means of which many persons, who unlawfully appropriated another’s goods escaped criminal prosecutions, although the moral turpitude of the offense was as great as in the case of larceny proper. The first of these gaps was constituted by the position, that to maintain larceny, the stolen goods must at some time have been in the owner’s possession; and, the second resulted from the assumption, that when the possession of goods was acquired in a bona fide manner by a bailee no subsequent fraudulent conversion (unless there be a breaking of the bulk, etc.) could be larceny while the bailment lasted. Wharton’s Criminal Law, (12th Ed.), par. 1258. As a result of these gaps, the early English decisions made hair-splitting distinctions by very subtle reasoning between “custody”, “possession” and “constructive possession” in an attempt to prevent the guilty from escaping justice, 1 Mr. Justice Stephen, in his history of the criminal law of England says of. these decisions: “They turn upon discussions as to the nature of possession, which are as technical and unsatisfactory as all attempts to affix a precise meaning *318 to a word which has no precise meaning must be”. It seems-not unlikely that some of these decisions may have later inspired the famous statement of Mr. Bumble, although it was made concerning another branch of the law: “If the law supposes that * * * the law is a ass, a idiot”. Oliver Twist, Ch. 51, by Charles Dickens. But these decisions were made in an honest endeavor to cover the loopholes in the law and bring the guilty to justice. This being the unfortunate state of the law, a remedy was sought. It is surprising to some authors that it was not until the year 1799 when what generally is considered the first embezzlement statute (39 Geo. Ill, c. 85) was enacted in England. It has served as a model for similar statutes in this country, although many of the States have markedly different provisions; and it has long since been superseded by subsequent embezzlement statutes of modified terminology. As a result, in order to determine the weight to give the out-of-State and English decisions, it is necessary to consult the statutes in force when the decisions were rendered. With this short background of the law of embezzlement, the case at bar will be considered. It seems as though the present case properly can be decided by reference to our present statute on embezzlement alone, without the necessity of the citation of other authorities, although these authorities are ample and some will be cited later. Our statute, Art. 27, sec. 154 of the Maryland Code (1951), reads: “Whosoever 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 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 * * *.” A simple down-to-earth application of the facts presented in the record discloses that every element required in the stat *319 ute is fully and completely covered. It is conceded that the nature of his employment is within the terms of the statute, and the evidence established to the satisfaction of the jury that the money was taken into his possession for and on behalf of his employer, and that he fraudulently appropriated it to his own use. The statute seems to require no more. But the majority of the Court feel that the /English decisions and other authorities (although apparently there is no Maryland case so ruling) require a holding that because the money went into the drawers before its fraudulent conversion, the offense was larceny and not embezzlement. If this be so, it seems to place the law in an unfortunate and somewhat indefensible position. When a man is in complete charge and control of an office and the law says to him: “If you steal your employer’s money before it is placed in a drawer (under your charge and control) you are guilty of embezzlement, but, if you or someone under you places the money in that drawer (still under your charge and control) and then you steal it, you are guilty of larceny, and larceny alone”, does it seem right? Could not it be said with just as much reason, logic and justification that if you steal money and place it in your left pocket, you are guilty of embezzlement, but, if you place it in your right pocket, you are guilty of larceny and larceny alone? Would it not be a sounder policy to follow the example of such cases as Calkins v. State, 18 Ohio State 366 or Commonwealth v. Ryan, 155 Mass. 523 , 30 N. E. 364 . In the Calkins case, the Ohio Court was requested to make a rather tenuous holding under its embezzlement statute as to whether or not certain property was “under (the) care” of the defendant, but the Court refused to do so, and said: “There is no more reason why courts should allow themselves to be misled by mere names and shadows in the administration of justice in criminal, than in civil cases.” In the Ryan case, the facts were quite similar to those involved here. The defendant was an employee of a liquor store who received money from a customer, placed it in the money drawer of a cash register and a few minutes later he removed the money from the drawer and appropriated it to his own use. He was convicted of embezzlement and the same argu *320 ment made in this case was made there, namely, that when the money went into the drawer it went into the constructive possession of the employer and, therefore, its taking constituted larceny but not embezzlement. Mr. Justice Holmes was then a member of the Supreme Judicial Court of Massachusetts and on behalf of the Court, he repudiated this contention and held the man was properly convicted of embezzlement. See also State v. Taberner, 14 R. I. 272; Ker v. People, 110 Ill. 627 ; Morgan v. Commonwealth, 242 Ky. 713 , 47 S. W. 2d 543 . The apprehension that I have concerning the ruling in this case is aptly stated in Komito v. State (Ohio), 107 N. E. 762 , where it is said: “Courts sometimes indulge in an ethereal refinement between larceny and embezzlement that in practical operation very often nullifies these statutes. The only benefit accruing from such a policy results in the rather doubtful advantage of the criminal escaping his just punishment(Emphasis supplied). And Mr. Bishop, in his work on criminal law, very sensibly says: “Such, also, is the plain dictate of reason. Suppose, for instance, the taking of an article alleged to have been embezzled was such as amounts to a common-law larceny of it, why should not an indictment for this embezzlement be maintainable at the election of the prosecuting power as well as one for larceny, provided the act done was within the terms of the statute, and no previous prosecution had been had for it as larceny?” 2 Bishop's Criminal Lazo, Sec. 329. Thus, we find ourselves in the peculiar position of following the subtle reasoning developed in the English decisions for the purpose of bringing the guilty to the bar of justice; but, in so doing, we directly come to their aid and comfort. Probably the solution of this rather difficult problem lies in the course followed by several of our sister States (and as was *321 done in England) where the legislative power has provided that under an indictment for larceny, or for larceny in one count and embezzlement in another, there may be a conviction of either offense. As the trial Court, during a rather lengthy trial, fell into one error in ruling on the evidence, which is mentioned in the majority opinion, I concur in the result. . For the sake of brevity, I shall not state the facts of these cases. Anyone who may desire to pursue the matter further will find a very complete discussion of this entire matter in a note in 98 Am. Dec. ps. 126 to 174. See also 32 Am. Jur., Larceny, par. 56; 146 A. L. R. 532. For the modern law of England relating to embezzlement, see 9 Halsbury’s Laws of England, Criminal Law and Procedure, pars. 889-897. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754841. Public record. Not legal advice.