Theft of immovable property.

Squatting in property if a theft?

Ronald Alexander Hobby (“Petitioner”) was charged with, and convicted of, theft of property valued in excess of $100,000 and related offenses arising out of his unauthorized occupancy of a home for a period of approximately seven months. He held on to property on the basis of a lease document from the landlady, who denied its execution, on oath.

Defence disputing theft:

Petitioner contends that the evidence is insufficient to support a conviction for theft “in any amount.” Petitioner argues that a theft of a house did not occur, as the house was not asported to another location, and thus, the evidence is insufficient “to prove the mode of theft specifically set forth in the indictment.” Alternatively, Petitioner contends that the State failed to prove that he deprived Brathwaite (Landlady) and Severn Bank (Mortgagee) of the property through deception because there was no prospective purchaser or lessee “displaced” as a result of his occupancy; i.e., there was no deprivation and thus no theft. Petitioner also asserts that the State failed to prove that he exerted unauthorized control over the property, as his action in occupying the home as a “squatter” did not constitute theft under the theory of “exerting unauthorized control.”<!–nextpage–>

Discussion/enunciation of law of Maryland about theft:

C.L. § 7-104 of the Maryland Code prohibits theft committed in several ways, including the following two: (a) Unauthorized control over property. – A person may not willfully or knowingly obtain or exert unauthorized control over property, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. (b) Unauthorized control over property – By deception. – A person may not obtain control over property by willfully or knowingly using deception, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. “Obtain” is defined, in relevant part, in C.L. § 7-101(g) as “(1) in relation to property, to bring about a transfer of interest in or possession of the property[.]” “Property,” as used in the theft statute, “means anything of value[,]” C.L. § 7-101(i)(1), and includes “real estate” as well as “a thing growing on or affixed to, or found on land, or part of or affixed to any building[.]” C.L. § 7-101(2)(i) and (2)(vi). Contra Sheffield v. State, 708 So.2d 899, 900, 902, 906, 910 (Ala. Crim. App. 1997), cert. denied, 708 So.2d 911 (Ala. 1997) (The Court of Criminal Appeals of Alabama held that a person could not steal real property, specifically an “interest in land,” because Alabama‟s theft statute failed to explicitly include “real property” within the definition of “property”; the Court further observed: “[I]n most states, the evolution of [the types of property that can be the subject of theft and theft-related offenses] has produced a broader definition of „property‟ than it has in Alabama–a definition that, in most instances, explicitly and specifically includes real property.”). In Maryland, the common law crime of larceny was traditionally defined as “the intentional taking, without legal warrant, of the personal property of another with the unlawful intention to deprive the owner of such property.” Murray v. State, 214 Md. 383, 386, 135 A.2d 314, 315 (1957) (citation and internal quotation marks omitted) (emphasis added). “[M]odern [theft] statutes[, however,] have generally covered other kinds of property as well.” Wayne R. LaFave, Substantive Criminal Law § 19.4 (2d ed.) (updated Oct. 2013). In Maryland, “[b]y chapter 849 of the Acts of 1978, . . . the General Assembly . . ., effective July 1, 1979, consolidated a number of theft-related offenses . . . into a single newly created statutory offense known as theft.” Jones v. State, 303 Md. 323, 326, 493 A.2d 1062, 1063 (1985).3 By Chapter 849 of the Acts of 1978, the General 3 The consolidated theft statute “combin[ed] what were previously seven separate larceny offenses into the one crime of theft[,]” including “larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen (Continued…) Assembly expanded the common law definition of “property” to include, among other things, “real estate” and “things growing on or affixed to, or found on land, or part of or affixed to any building[.]” 1978 Md. Laws 2466. That definition remains in force today. The theft statute distinguishes between “personal property” and “property,” as seen in C.L. § 7-104(c), which, in contrast to C.L. § 7-104(a) and (b), narrowly prohibits possessing stolen personal property; specifically, pursuant to C.L. § 7-104(c), “[a] person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen[.]” (Emphasis added). The modern consolidated theft statute does not distinguish, however, between “movable” and “immovable” property, as does the Model Penal Code. See Model Penal Code § 223.2. In addition, the modern consolidated theft statute does not require asportation4 of property. See Charles E. Moylan, Jr., Maryland‟s Consolidated Theft Law and Unauthorized Use § 4.2, 24 (2001) (“Significantly missing from the current definition of theft‟s proscribed acquisition, however, are common law larceny‟s requirements of a trespassory taking (the caption) and a carrying away (asportation).”)

It was concluded:

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We reject Petitioner‟s argument that theft of the house did not occur as the house remains at its original location and was not asported to another location. Petitioner confuses the common law crime of larceny with theft under the modern consolidated theft statute. Asportation, or the carrying away or removal of property, is not required under the modern consolidated theft statute. See C.L. § 7-104; Moylan, supra, at 24. Stated otherwise, the State is not required to demonstrate that Petitioner carried away the house from its original location to prove that Petitioner committed theft of the house. And, the indictment did not aver that Petitioner carried away the home. As to theft of the house pursuant to C.L. § 7-104(b)–theft by deception–viewing the evidence in the light most favorable to the State (as we must), we are convinced that the evidence is sufficient to support the conclusion that Petitioner committed theft by obtaining control and possession of the property through deception, and, specifically, that Petitioner brought about the physical transfer of possession of the house located at 2742 Kirk Drive through deception.

To be a dwelling, the place must be of human habitation, that is, a “place to sleep in[.]”

A structure does not become a dwelling until someone occupies it. Once a dwelling, however, the structure does not lose its character as a dwelling simply because it is left vacant for a time. The length of the vacancy, moreover, does not, of itself, disturb the character of the place as a dwelling. “Certain it is that the dweller and his entire household may be away for months, without depriving the house of its character as his dwelling.” Id. at 127, 962 A.2d at 1002 (citations omitted). We observed: To be sure, burglary does not require that the dwelling be occupied by its residents at the time of the breaking; however, the law distinguishes a temporarily unoccupied dwelling house from a building [that], although at times used as a dwelling, has at the time of the breaking been abandoned by its occupants. The former is a proper subject of burglary; the latter is not.

Source: Hobby v. State  [Maryland (USA) Court of Appeal]

Doctor is not a workman.

Legal status of an employed Doctor:

Termination of a Doctor from the position of Junior Surgeon in a private hospital without being tendered the retrenchment compensation and notice pay under section 25-F of Industrial Disputes Act, 1947, which is required to be paid to a workman. This makes termination illegal. But the question is:

Is doctor a workman?

The term workman has been defined in Section 2(s) of the Act, which reads:-

“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee
of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”

There is a distinction between a person employed in a hospital and a person employed in an industry and that not every time that a doctor was employed in an institution; he/she became a workman. Nature and character of the relationship between the employee and the employer had to be examined and ascertained to decide whether a doctor was a workman or not. Further, whereas ‘occupation’ was a principal activity that earned a regular wage or salary for a person, a ‘profession’ was an occupation that required extensive training and the study and mastery of specialised knowledge and usually had a professional association, ethical code and process of certification or licensing.

[Claimant Doctor] was a professional and it could not be said that he was engaged/employed for doing technical work. He did use his professional skills and knowledge for diagnosing the diseases and treating the patients but this could not be said to fall within the ambit and scope of Section 2(s) of the Industrial Disputes Act, 1947.

[Management of Multan Sewa Samiti Charitable Eye Hospital v. P.O. Labour Court -II.(Delhi High Court)]

Cognizance: Meaning and Definition in CrPC.

What is ‘taking of cognizance’?

Meaning and Definition of ‘Cognizance’:

Cognizance has not been defined in the Criminal Procedure Code but it connotation is a matter of acronym debates. ‘When does a Magistrate takes cognizance’ is an important issue for determining many things. For example the question of limitation, to see if prosecution is time barred.

Before it can be said that any magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

[Source: Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee (by Calcutta High Court) approved by Supreme Court in R. R. Chari v. State of U.P.(1951) SCR 312]

Scope of enquiry at the stage of cognizance:

At the time of taking cognizance of the offence the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter.

If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether or not an offence has been made out.

[Source: Subramanium Swamy v. Manmohan Singh. (Supreme Court of India)]

What is reasonable in law?

What is reasonable time for exercise of power?

Even when no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied.

State of Gujarat vs. Patel Raghav Natha and Ors., (1969) 2 SCC 187 : AIR 1969 SC 1297.
Continue reading “What is reasonable in law?”