Summary
In McNeil, the Supreme Court of Maryland found the evidence sufficient to support a burglary conviction based on testimony that a beer bottle with the appellant's fingerprint had been left next to a broken safe near the time of the crime.
Summary of this case from McLendon v. StateOpinion
[No. 148, September Term, 1961.]
Decided December 26, 1961.
CRIMINAL LAW — Finger Print Evidence, Coupled With Evidence Of Other Circumstances Reasonably Excluding Hypothesis That Print Was Impressed At Time Other Than That Of Crime. In this appeal from a conviction of breaking and entering a tavern with an intent to steal goods worth at least $100, the defendant's finger print found at the scene of the crime was coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. p. 300
CRIMINAL LAW — Breaking And Entering With Intent To Steal Goods Worth At Least $100 — Evidence Of Felonious Intent Held Sufficient. In this appeal from a conviction of breaking and entering a tavern with an intent to steal goods worth at least $100, the evidence was held sufficient to support a finding of felonious intent to steal goods of that value, or more, as Code (1961 Supp.), Art. 27, § 32, requires. There was proof that the articles taken, including money, exceeded that amount; evidence as to the money taken, claimed now to be hearsay, came in without objection; and a felonious intent to take whatever the offender could get could be inferred from the tampering with the tavern safe, even if the value of the articles actually taken had not amounted to $100. pp. 300-301
J.E.B.
Decided December 26, 1961.
Appeal from the Circuit Court for Baltimore County (MENCHINE, J.).
Joseph A. McNeil was convicted in a non-jury case of breaking and entering a tavern with an intent to steal goods worth at least $100, and from the judgment entered thereon, he appeals.
Affirmed.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and MARBURY, JJ.
Richard A. Reid, with whom were Proctor, Royston Mueller on the brief, for the appellant.
Robert C. Murphy, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Frank H. Newell, III, State's Attorney for Baltimore County, and Paul J. Feeley, Assistant State's Attorney, on the brief, for the appellee.
The appellant, convicted of breaking and entering a tavern with intent to steal goods worth at least $100, contends that there was insufficient evidence to support the conviction and to support a finding of felonious intent.
The tavern in question had been closed for business and locked up on February 7, 1961. The proprietor testified he visited the tavern on February 28, 1961, and found everything in order. Upon his next visit, March 4, 1961, he found that the cellar window had been broken out, the safe had been severely damaged, various coin-machines, a juke box, and a cigarette machine had been broken into and rifled, and eleven whiskey bottles had been taken from the shelves. A police officer testified that he found a partially empty beer bottle beside the safe from which he obtained a finger print. An expert testified that this finger print was that of the accused, and that it had been left on the bottle not more than 18 hours prior to March 4, 1961.
We think the evidence was sufficient to support the inference drawn by the trial court, that the appellant left the bottle near the safe, in the light of positive testimony by the proprietor that the bottle was not there upon his previous visit. Cf. Debinski v. State, 194 Md. 355, 359, and Breeding v. State, 220 Md. 193, 199. See also the cases collected in the note, 28 A.L.R.2d 1115, et seq., and the related note in 35 A.L.R.2d 856-891. It is generally recognized that finger print evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. 3 Wharton, Criminal Evidence (12th ed.), sec. 982; II Wigmore, Evidence (3rd ed.), § 414. But we find such evidence in the instant case.
The appellant was convicted on the first count of the indictment, which was clearly based upon Code (1961 Supp.), Art. 27, § 32. Under that section it was necessary to show an intent to steal goods of the value of $100, or more. But there was proof that the articles taken, including money taken from the cigarette machine, exceeded that amount. Although it is argued that the evidence as to the money taken from the cigarette machine was hearsay, the short answer is that it came in without objection. Moxley v. State, 205 Md. 507, 518. It could also be inferred, from the tampering with the safe, that the offender intended to take whatever he could get, so that a felonious intent could be inferred, even if the value of the articles actually taken had not amounted to $100. Holtman v. State, 219 Md. 512, 517; Rahe, Jr. v. State, 222 Md. 508, 510.
Judgment affirmed.