Appeal from order of Court of Common Pleas of Lancaster County, No. 1097 of 1970, in case of Commonwealth of Pennsylvania v. Kenneth Nace.
Edward F. Browne, Jr., Assistant Public Defender, for appellant.
George T. Brubaker, Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Wright, P. J., Cercone and Jacobs, JJ., dissent and would affirm the court below. Concurring Opinion by Spaulding, J. Hoffman, J., joins in this opinion.
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The appellant had petitioned for a post-conviction hearing on the ground of ineffective assistance of counsel in that his attorney did not object to a conviction on a charge that was not set forth in the indictment. The indictment was for larceny of a motor vehicle and the conviction was for the operation of a motor vehicle without the knowledge or consent of the owner or custodian. The court below, without a hearing, denied the petition on the ground that the conviction was for a lesser offense included within the charged offense.
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It is well settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it. Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687 (1960). This rule applies even though the greater offense is a felony and the lesser included offense a misdemeanor, Hunter v. Page 331} Commonwealth, 79 Pa. 503 (1875).*fn1 An exception exists, however, as to an indictment for murder, in which case the jury is not permitted to return a verdict either for involuntary manslaughter or for any degree of assault and battery because of the likelihood that the jury might be seriously confused by the multiplicity of instructions upon the various charges. Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953).
The Penal Code does not define the offense of larceny. The Act of June 24, 1939, P. L. 872, § 807, 18 P.S. § 4807 provides: "Whoever commits larceny, is guilty of felony. . . ." Our courts have held, therefore, that the common law definition applies. Commonwealth v. Meinhart, 173 Pa. Superior Ct. 495, 98 A.2d 392 (1953). At common law larceny consisted of the "taking and carrying away of the personal property of another with the mind of a thief, that is, with the specific intent to deprive the owner permanently of his property." Hilliard Lumber Co. v. Harleysville Co., 175 Pa. Superior Ct. 94, 96, 103 A.2d 436, 437 (1954).
The Act of April 29, 1959, P. L. 58, § 624(5), as amended, 75 P.S. § 624(5), provides that it shall be unlawful: "To make use of or operate any motor vehicle or tractor without the knowledge or consent of the owner or custodian thereof." This offense, a misdemeanor, is more commonly known as "joy-riding."*fn2 It involves taking someone else's car without permission for the pleasure of driving it temporarily, but with no
[ 222 Pa. Super. Page 332]
intent to deprive the owner of permanent possession. The Model Penal Code § 206.6(2), Comment (Tent. Draft No. 2, 1954), has observed: "The culprit may drive carefully and return the car to its original place in half an hour. The offense is typically committed by youngsters. For these reasons the relatively mild sanctions of petty misdemeanors are suggested." In Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104, 21 A.2d 920, 921 (1941), the Pennsylvania Supreme Court held that the true test for determining whether a merger of offenses has occurred is: ". . . whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. . . ." Thus, we must decide whether larceny of a motor vehicle necessarily involves making use of or operating the vehicle without the owner's consent.
The specific issue in this case has apparently not been considered in any reported Pennsylvania case. Other jurisdictions are not in accord on whether joy-riding is an offense included within the charge of larceny of a motor vehicle. Two states apply the ...