40 Mass. App. Ct. 284 | Mass. App. Ct. | 1996
These cases, which were consolidated for appellate review, present the same issue — whether the judge committed error in denying the defendants’ motions for required findings of not guilty on complaints charging larceny in a building.
The facts in neither case are in dispute. The defendant Sollivan was arrested by Sears Department Store employees in
Both defendants were charged with larceny in a building. G. L. c. 266, § 20. At their separate trials, they moved for required findings of not guilty of the charges of larceny in a building. They both conceded that the evidence may have been sufficient under G. L. c. 266, § 30(1) (the general larceny statute), or G. L. c. 266, § 30A (the shoplifting statute), but asserted that the larceny in a building statute did not apply to their conduct. Their arguments were rejected, and they were found guilty and sentenced. On appeal, both argue that G. L. c. 266, § 20, cannot be the basis for a conviction for their conduct.
Prior to 1981, conduct that amounted to shoplifting was prosecuted under G. L. c. 266, § 30(1).
For over 100 years, it has been held that in order to obtain a conviction for the crime of larceny in a building, “it is not enough [for the Commonwealth] to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building.” Commonwealth v. Lester, 129 Mass. 101, 103 (1880). See Robinson v. Van Auken, 190 Mass. 161, 163, 165, 167-168 (1906). See also McDermott v. W. T. Grant Co., 313 Mass. 736, 737 (1943) (shoplifting in a store “would [not] . . . constitute larceny in a building under [G. L.] c. 266, § 20, for the property was under the protection of the [store’s] servants rather than that of the building”).
The Commonwealth contends, however, that the appellate courts have improperly placed a gloss on the offense of “stealing in a building” and that the additional court-imposed requirement of “under the protection of the building” is contradictory to the intent of the Legislature. We disagree with the Commonwealth’s argument.
The Legislature is presumed to be aware of “the decisions of [the Supreme Judicial Court].” Condon v. Haitsma, 325 Mass. 371, 373 (1950). If it believed that the court’s long standing interpretation of G. L. c. 266, § 20, was wrong, we would think that, some time ago, the Legislature simply
The Commonwealth contends that, if we disagree with its interpretation of the statute, the cases should be remanded for sentencing on the lesser included offense of larceny. See Commonwealth v. Ford, 18 Mass. App. Ct. 556, 559 (1984) (where defendant was tried and convicted under the wrong statute, proper remedy was to remand for resentencing on lesser included offense).
Larceny in a building is made up of the following elements: (1) the taking or carrying away of property (2) that belongs to another person (3) from a building (4) with the intent to deprive that person of the property permanently. Larceny consists of (1) the taking or carrying away of property (2) that belongs to another person (3) with the intent to deprive that person of the property permanently. See Instruction 5.41 (larceny) and Instruction 5.411 (stealing in a building) of the Model Jury Instructions for Use in the District Court (1995). Therefore, larceny in a building necessarily includes the elements of larceny plus the additional aggravating factor that the larceny occur within (or as case law puts it, under the watch of) a building. See Commonwealth v. Perry, 391 Mass. 808, 813 (1984) (a crime is a lesser included offense of another crime if each of its elements is also an element of the other crime). Since larceny is necessarily included in the offense of larceny in a building, it is properly considered a lesser included offense.
Because there is ample evidence to justify both defendants’ convictions of larceny, the defendants should be resentenced on the lesser included offense of larceny.
The judgments are vacated, and the matters are remanded
So ordered.
General Laws c. 266, § 30(1), reads in relevant part:
“Whoever steals . . . the property of another as defined in this section . . . shall be guilty of larceny . . . .”
General Laws c. 266, § 30A, provides in relevant part:
“Any person who intentionally takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use of benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof . . . shall be punished . . . .”
In Commonwealth v. Hudson, supra at 286-287, the court noted that the relevant portions of G. L. c. 266, § 30, and G. L. c. 266, § 30A, “are complementary and not inconsistent. General Laws c. 266, § 30A, facilitates the apprehension and prosecution of shoplifters by providing law enforcement officials with alternative offenses and penalties. General Laws c. 266, § 30A, not only prohibits [taking of merchandise from a store], but also prohibits conduct which may be difficult to prosecute under the larceny