Mitchell v. United States
Mitchell v. United States
Opinion of the Court
The four appellants in this case were convicted by a jury trial of the offense of “stealing” property belonging to the District of Columbia
Although the combined appeals charge several grounds of error in the trial proceedings, we find it necessary at this time to consider but one of them, id est, that in the court’s charge to the jury on the elements of the crime of stealing property belonging to the District of Columbia the court not only neither delineated nor defined those elements, but the elements of scienter and intent to appropriate permanently were completely omitted The court’s charge on this point was as follows:
Now, the fourth count alleges larceny of property in the District of Columbia,*769 and that alleges that on or about March 4, 1966, within the District of Columbia, the four defendants did steal and purloin the property of the District of Columbia, a municipal corporation, having a total value of about $54.00 consisting of one pistol of that value. Now, in order to constitute larceny, the taking of property must be accompanied with the intent to steal it. The intent of the taker must be to appropriate the stolen property to a use inconsistent with the property rights of the person from whom it is taken. If the taking is under a bona fide claim of right, however unfounded, it is not larceny because it negates an intent to steal. In other words, if a person honestly thinks that he is entitled to take the property, taking is not larceny if he is mistaken in that belief.
Now, larceny from the District of Columbia is simply larceny of property which belongs to the District of Columbia, and in this case, allegedly the pistol. Now, I spoke to you about aiding and abetting.
We recognize, of course, that many words used in statutory definitions of specific crimes have generally accepted and understood meanings regularly attached to them because of their common and everyday use. “Steal” and “purloin” are undoubtedly in this category, but the court’s charge to the jury contains no definition of either word, and consequently creates a situation in which jurors, lacking guidance, may have attributed to the words a connotation not legally acceptable. Our problem is further complicated by the fact that in the charge the judge, after first utilizing but not defining the general statutory words, steal and purloin, then changed in the second sentence of this statement to the use of the word “larceny” and proceeded to briefly define that term but without specifying the elements of larceny. While the facts in the case may have justified a charge limited to the elements of larceny, the introduction of the words steal and purloin created an obligation on the trial judge to explain their meaning and relation to the larceny term.
The significant words in the statute resulting in appellant’s conviction are of course “embezzle, steal or purloin.” These words indicate that the Congress intended to include in the penalized conduct every offense falling between common law larceny and embezzlement. See Crabb v. Zerbst, 99 F.2d 562 (5th Cir. 1938); United States v. Handler, 142 F.2d 351 (2d Cir.), cert. denied, 323 U.S. 741, 65 S.Ct. 40, 89 L.Ed. 594 (1944); Pennsylvania Indemnity Fire Corp. v. Aldridge, 73 App.D.C. 161, 162-163, 117 F.2d 774, 775-776 (1941). In Crabb, Judge Holmes, while discussing the breadth of a federal statute with a section dealing with robbery and larceny and another section dealing with embezzlement, stealing, and purloining, stated as follows:
[The words steal and purloin were added to the section specifying embezzlement] to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law * * *. Between * * * [embezzlement and larceny] there lies a gap which has grown wider and wider as the multifarious activities of the central government have spread and increased. Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership * * *.
In Handler, Judge Swan, writing on behalf of himself and Judges Learned and Augustus Hand, endorsed this reasoning and added that “[i]n various federal statutes the word ‘stolen’ or ‘steal’ has been given a meaning broader than larceny at common law. See United States v. Trosper, D.C.S.D.Cal., 127 F. 476, 477, ‘steal’ from the mail; United States v. Adcock,
As a jury charge “should be drawn with reference to the particular facts of the case on trial,” Collazo v. United States, 90 U.S.App.D.C. 241, 246, 196 F.2d 573, 578, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952), a trial judge would not be obligated to delineate the issues of each of the crimes covered by § 22-2206. He would, however, be obligated to specify the elements of the crime or crimes most closely related to the factual situation.
Returning briefly to the trial court’s use of the term larceny as heretofore set forth, we note that included within the elements of that offense are (1) a taking of valuable property from one rightfully possessed, Washington v. United States, 213 A.2d 819 (D.C.App. 1965), (2) a carrying away of this property, Levin v. United States, 119 U.S.App.D.C. 156, 338 F.2d 265 (1964), cert. denied, 379 U.S. 999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965), and (3) the accomplishing of the taking and carrying away with an intent to appropriate the property to a use inconsistent with the rights of the rightful possessor, Mills v. United States, 97 U.S.App.D.C. 131, 228 F.2d 645 (1955). In comparing these elements to the actual charge, it is obvious that the only element which the judge made any attempt to delineate and define was the wrongful intent. While charging the jury on the robbery counts, upon which the appellants were acquitted, the judge did speak of the elements of property value and wrongful taking. This hardly seems adequate to cover the shortcomings of the § 22-2206 charge, since the taking, constituting an element of robbery, is substantially different from a larceny taking and since the trial judge did not refer the jury to those portions of his earlier charge. Finally, the last sentence of the charge relating to the offense for which appellants were convicted grossly oversimplifies the offense and tends, we conclude, to mislead the jury.
In addition to these shortcomings, the appellants also contend that larceny requires proof that the property was taken with an intent to appropriate it permanently and that it was taken with knowledge that the property belonged to the District of Columbia. The contention that property must be appropriated permanently is premised on 2 Wharton Criminal Law, § 454 (Anderson ed. 1957), which states: “Larceny is not committed when the defendant takes the property of the owner with the intent of borrowing it temporarily and of returning it thereafter to the owner.” This statement is supported by citations to cases in 19 different jurisdictions, including Ryan v. United States, 26 App.D.C. 74 (1905). The court in Ryan, while holding that it was not reversible error to exclude evidence of the defendant’s intoxication genérally, stated that one would not be guilty of larceny if he took another’s goods while too drunk to entertain an intent to steal and returned them the instant he became cognizant of the possession of them. Thus, this case does not stand for the proposition that a necessary element of larceny is an in
In a number of cases which purported to apply the common-law definition, persons were held guilty of larceny in spite of the fact that in each case it was not the intention of the taker permanently to deprive the owner of his property. In fact, the only rule as to felonious intent in larceny to which all the cases can be reconciled, is that the intent of the taker must be to appropriate the stolen property to a use inconsistent with the property rights of the person from whom it is taken.
Pennsylvania Indemnity Fire Corp. v. Aldridge, supra, 73 App.D.C. at 163, 117 F.2d at 776. (Footnotes omitted.) A review of a number of the cases referred to by Judge Miller convinces us of the soundness of his position, and we therefore reject appellants’ contention that larceny requires an intent to appropriate property permanently.
The appellants’ argument that § 22-2206 demands proof of their knowledge that the property was owned by the District of Columbia presents a more difficult question. No case directly considering this issue has been cited, and we have found none. The issue, then, is one of first impression.
This case is appropriate for deciding whether scienter is a necessary element, since the question of whether appellants knew or had reason to believe the complaining witness was a police officer before they took the pistol is squarely presented by the testimony. The policeman testified that he revealed his identity to appellants as soon as the fight in the car began, (Tr. 6). On the other hand, appellant Mitchell testified that he “never heard * * * [the officer] say anything about he was a police officer,” (Tr. 206). Appellant Devone said that the officer revealed his identity only after Devone left the car and was running away, (Tr. 231, 232). Neither defendant Boone nor defendant Beacham was asked any questions on this issue. Thus, if scienter is held to be a necessary element of the offense, the jury must resolve the factual dispute.
On one hand, the appellants argue that § 22-2206 is analogous to 18 U.S.C. § 641 (1964), which states that it is a crime to embezzle, steal, purloin, or knowingly convert property belonging to the United States.
We find, then, that the analogies offered by the appellants and appellee are obviously lacking in the reasoning that make analogies helpful. They are further weakened by the absence of a decision by this court on either of the suggested analogous questions.
A judicial construction of § 22-1201 (outlawing the embezzlement of property belonging to the District of Columbia) or § 22-2207 (outlawing the receipt and concealment of property known to have been unlawfully taken from the District of Columbia) would be more helpful, but none has been found. A search for analogous statutes and case law in state jurisdictions also proved fruitless. Finally, an examination of the legislative history of § 22-2206 revealed nothing which would indicate whether Congress intended scienter to be an element of the offense. Thus, none of the more persuasive reasons for construing a statute one way or another aid the court in this ease.
On the other hand, there are several reasons for arguing that knowledge of ownership by the District of Columbia is a necessary element in a § 22-2206 offense. First, one may point to the statutory language specifying “property of the District of Columbia” and apply the reasoning of the Supreme Court in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952):
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly [see United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259; United States v. Gooding, 25 U.S. (12 Wheat.) 460, 6 L.Ed. 693] admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute.
342 U.S. at 263, 72 S.Ct. at 249.
This statement suggests that the judiciary should be hesitant to depart from a literal reading of a criminal statute; as there is no strong reason for omitting the scienter,
Because of the broadness of § 22-2206, it obviously covers several types of crime. The trial court’s charge was inadequate to properly instruct the jury upon all the crucial elements of the offenses embraced within the prosecution’s evidence. We must reverse the convictions and remand the case to the District Court for a new trial. This disposition makes it unnecessary for us to consider other grounds suggested for review by appellants’ counsel.
Reversed and remanded.
. “Whoever shall embezzle, steal, or purloin any money, property, or writing, the property of the District of Columbia, shall suffer imprisonment for not exceeding five years or be fined not more than five thousand dollars, or both.” D.C.Code Ann. § 22-2206 (1967).
. The best procedure would appear to be an instruction first indicating the breadth of § 22-2206 and then a more specific charge in relation to a particular type of crime.
. The Government has admitted that 18 U.S.C. § 641 (1964) is analogous but contends that scienter is also not an element of a § 641 offense. But see Findley v. United States, 362 F.2d 921 (10th Cir. 1966).
. See 362 F.2d at 922.
. Walker v. United States, 93 F.2d 792 (8th Cir. 1938); Sparks v. United States, 90 F.2d 61 (6th Cir. 1937); Chiaraval-loti v. United States, 60 F.2d 192 (7th Cir. 1932).
. United States v. Wallace, 368 F.2d 537 (4th Cir. 1966), cert. denied 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136 (1967); United States v. Lombardozzi, 335 F.2d 414 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964); Bennett v. United States, 285 F.2d 567 (5th Cir. 1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961).
. Subsequent cases have adopted the same rationale.
. Other reasons which might justify a federal criminal statute also seem inapplicable to crimes defined in the D.C. Code. For instance, Congress may have enacted the government theft statute and the federal assault statute to set a single, nationwide standard or to guard against the possibility that the laws of a particular state would not cover these wrongful acts.
. A “writing” would probably present the most difficult value question and that type of property is specifically included within tlie statute.
. Compare tlie reasoning of the courts in construing tlie federal assault statute, supra, note 6.
. For petit larceny, one may be fined up to $200 and/or imprisoned for a year (22-2202). Embezzlement of property valued at less than $100 may result in a fine of $200 and/or imprisonment for one year (22-1207).
. One convicted under § 22-2206 is liable to a fine up to $5,000 and/or imprisonment up to 5 years.
Reference
- Full Case Name
- William D. MITCHELL v. UNITED STATES of America, Appellee Eddie DEVONE v. UNITED STATES of America, Appellee Wayne A. BOONE v. UNITED STATES of America, Appellee Langford BEACHAM v. United States
- Cited By
- 10 cases
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- Published