Jupiter v. Maryland12/11/1992
tted to this court on the theory that these charges should have been given. We are of the opinion that his contention is correct. It is not all takings of property that is theft. The fraudulent intent must exist at the time of taking, and if this did not exist at that time the taker would not be guilty of theft. Appellant, we think, had the legal right to have this phase of the testimony submitted to the jury under the instructions requested."
Numerous cases involving charges of shoplifting also represent applications of the principle that, if one intends to pay the seller of goods the full purchase price of the goods, there can be no conviction for larceny. Intent to pay is frequently the disputed issue in shoplifting cases. See, e.g., Barnes v. State, 31 Md. App. 25, 354 A.2d 499 (1976); Hugo v. City of Fairbanks, 658 P.2d 155, 161 (Alaska App.1983); People v. Jaso, 4 Cal.App.3d 767, 84 Cal.Rptr. 567 (1970). In fact, because intent not to pay for items in a store is often difficult to prove in a shoplifting case, several states have rewritten the law of shoplifting to change the intent element from a larcenous intent to an intent to conceal. See Hugo v. City of Fairbanks, supra. This change was accomplished by statute, and in these states, shoplifting is different from the common law crime of larceny.
The treatises and cases reviewed above establish that a required element of the common law crime of larceny is an intent to steal or to defraud. If the defendant intends to pay for the goods, and they are goods held out for sale to the general public, then the intent element of larceny is absent.
The majority concludes, however, that a statutory regulation aimed at the seller, prohibiting him from selling alcohol to an intoxicated purchaser, alters this settled principle. Thus, the majority holds that where goods are held out for sale, and where a purchaser pays for the goods, but where a regulatory statute would preclude the vendor from selling
the goods under the particular circumstances, then the purchaser who takes and pays for the goods without the vendor's acquiescence commits a larceny. If force is used, the purchaser also commits robbery.
The majority does not even attempt to explain how, under this scenario, the purchaser's intent becomes different, or how the presence of the regulatory statute aimed at the vendor supplies an intent to steal on the part of the purchaser. The majority simply states that " ourts rarely explain how removing the defense in robbery cases is consistent with the mens rea for the included crime of larceny." (opinion at 645-646). The majority goes on to indicate that such modification of the elements of the crime of robbery is good "public policy" (id. at 646) and is "reasonable" (id. at 647). In the past where this Court has changed the common law applicable to criminal cases so as to benefit the prosecution, we have made the changes entirely prospective, and not even applicable to the case before the Court. See, e.g., Jones v. State, 302 Md. 153, 161, 486 A.2d 184, 188-189 (1985); Williams v. State, 292 Md. 201, 219-220, 438 A.2d 1301, 1310 (1981); Lewis v. State, 285 Md. 705, 713, 716, 404 A.2d 1073, 1077, 1079 (1979) ("to now modify the common law rule and apply such change retroactively to validate the defendant's . . . trial . . . may, in our view, impinge upon basic fairness").
Furthermore, if the majority intends to change the mens rea element of larceny only under certain circumstances where a regulatory statute is involved and where
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