
    LEE v. STATE
    [No. 413,
    September Term, 1964.]
    
      
      Decided October 13, 1965.
    
    The cause was argued before Prescott, C. J., and PIammond, Marbury, Ofpenheimer and Barnes, JJ.
    
      James L. Bundy for appellant.
    
      Jon P. Oster, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Chernies B. Moylan, Jr., and George J. Helinski, State’s Attorney and Deputy State!s Attorney, respectively, for Baltimore City, on the brief, for appellee.
   Hammond, J.,

delivered the opinion of the Court.

Caril Lee was indicted jointly with Samuel Sumpter on charges of larceny and unauthorized use of the automobile of a Mrs. Garner and both were found guilty of unauthorized use by Judge Harris sitting without a jury in the Criminal Court of Baltimore.

Lee on appeal claims (a) the evidence was insufficient to sustain the conviction; (b) Judge Harris erred in not finally ruling on Lee’s motion for a verdict of acquittal when it was made at the conclusion of the State’s case and before Sumpter testified in his own behalf; and (c) he was prejudiced when Judge Harris, before reaching a verdict, received the testimony of the codefendant Sumpter and learned of the latter’s criminal record, which included a conviction for larceny of an autmobile and one for an attempt to steal a car. We find no merit in any of these contentions.

Mrs. Garner testified that she worked at night at the University Hospital in Baltimore and had parked her 1960 Chevrolet car on Redwood Street near the hospital at 10:50 p.m. on August 31, 1964, when she went to work, and that it was gone the next morning when she sought it to drive home. She recovered her car in Georgetown, Delaware. Trooper Short of the Delaware State Police testified that Lee was driving Mrs. Garner’s car in Georgetown, Delaware, at about 5:00 a.m. on the morning of September 1, 1964, when he stopped him for investigation. Lee had no operator’s license, no form of identification and no money, and Sumpter, who was enjoying an alcoholically induced nap on the back seat, likewise had no way to identify himself, and no money. Lee told Trooper Short he had borrowed the car from a Harry Walker in Baltimore. The trooper found in the car its registration card which showed the owner to be Mrs. Garner. From this testimony there was sufficient evidence to permit the trier of facts to infer that Lee had unlawfully taken and carried away “out of the custody or use” of the owner, Mrs. Garner’s car for his “present use,” contrary to Code (1957), Art. 27, Sec. 349. Anello v. State, 201 Md. 164.

After the State produced the testimony outlined above, Lee’s experienced and able lawyer moved for a verdict of acquittal which Judge Harris denied at that time, suggesting that he would rule at the close of the whole case. Lee announced that he would not take the stand or offer evidence. Sumpter then took the stand and after he had answered several preliminary questions Lee’s lawyer moved the court not to consider any of Sumpter’s testimony against Lee because Lee had moved for a verdict of acquittal at the close of the State’s case and then rested, and the case against him must be decided in the posture in which it had ended. Judge Harris asked Lee’s counsel if he desired a ruling immediately and the reply was: “* * * if the Court wants to hold its ruling until both cases are completed, fine, but I certainly want our case determined as of the point we rested, sir.” Judge Harris then said: “As of the close of Lee’s case?” and counsel answered “Right”-&emdash;that he wanted the record to show “* * * that the ruling will be based on that testimony alone.” Judge Harris responded: “* * * the ruling * * * at the end of the case will be based as to Lee upon the posture of the case when Lee’s case was rested.” The testimony, then, shows that Lee, through his counsel, was satisfied with Judge Harris’ statement that he would rule on Lee’s motion based only on the testimony as of the time the motion was made.

Sumpter then continued his testimony which, among other things, revealed that he had had four prior convictions including the two automobile larceny cases. At the end of Sumpter’s testimony the court, after hearing argument, denied both Lee’s and Sumpter’s motions for verdicts of acquittal and added: “The motion as to Lee being denied on the basis of the evidence in the case when his case was rested.”

For at least three reasons we think Lee has no basis to claim prejudice on the ground that his motion was not ruled on until the end of the whole case. First, Lee, through his counsel, agreed that the ruling could be deferred until the end of the whole case, if it was based only on the evidence produced by the State; second, Judge Harris, at the beginning of Sumpter’s testimony, said explicitly he would find Lee guilty or not guilty on the State’s testimony only and at the end of the whole case he said he had done this; and third, the State’s testimony so clearly indicated that Lee was guilty as to negate any inference that Judge Harris’ ultimate decision as to Lee was influenced by anything revealed by Sumpter’s testimony.

Judgment affirmed.  