Summary
vacating a grand larceny conviction, on merger grounds, because the defendant had been convicted of armed robbery
Summary of this case from Spitzinger v. StateOpinion
No. 76, September Term, 1967.
Decided February 15, 1968.
APPEAL — Review Of Sufficiency Of Evidence In Non-Jury Cases. In reviewing the sufficiency of the evidence in a non-jury case, the Court of Special Appeals determines whether the lower court had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant's guilt. p. 159
EVIDENCE — Identification Of Accused By Single Eyewitness Is Sufficient To Sustain Conviction — Weight Given Courtroom Identification Is Matter For Trial Court. Identification of the accused by a single eyewitness has been held sufficient to sustain a conviction. p. 159
The weight to be given a courtroom identification is a matter for the trial court. p. 159
WITNESSES — Credibility Is Matter For Trier Of Facts — Alibi Testimony Weighed By Trial Judge. The credibility of the witnesses is for the consideration of the trier of the facts. p. 159
Alibi testimony is to be weighed by the trial judge, who is not required to accept its truthfulness. p. 159
APPEAL — Judgment In Non-Jury Case Not Set Aside On Evidence Unless Clearly Erroneous. Judgments of the trial court on the evidence were not clearly erroneous and would not be set aside where there was sufficient evidence to prove the corpus delicti and the identity of appellants as the criminal agents. Rule 1086. p. 159
VERDICT — Inconsistent Verdicts Of Guilty Under Different Counts Of Same Indictment Cannot Stand When Both Counts Depend Upon Same Alleged Acts. Inconsistent verdicts of guilty under different counts of the same indictment, when both counts depend upon the same alleged acts, cannot stand. pp. 159-160
A conviction under one count of an indictment charging attempted robbery with a deadly weapon was inconsistent with a conviction under another count charging robbery with a deadly weapon; for, having been convicted of committing robbery with a deadly weapon, one cannot then be found to have failed to commit it, which is a necessary ingredient in the proof of attempt. p. 159
MERCER OF OFFENSES — Test Is Whether One Crime Necessarily Involves The Other. Under the modern concept of the doctrine of merger of offenses, the test is whether one crime necessarily involves the other. p. 160
The offenses of robbery, assault with intent to rob, assault, and grand larceny were held to have merged into the offense of robbery with a deadly weapon upon appellants' convictions of the greater offense. p. 160
SENTENCE AND PUNISHMENT — General Sentence Not Disturbed By Reversal And Vacating Of Convictions As To Several Counts. Where appellants were convicted under six counts of an indictment, the first count of which charged robbery with a deadly weapon, and each appellant received a general sentence which did not exceed the maximum authorized for robbery with a deadly weapon, the reversal and vacating of judgments as to the five other counts did not invalidate the general sentences imposed. Code (1957), Art. 27, § 488. p. 160
Decided February 15, 1968.
Two appeals in one record from the Criminal Court of Baltimore (GRADY, J.).
Richard Lee Price and Richard James Stewart were convicted in a non-jury trial under six counts of one indictment (No. 5705) charging (1) robbery with a deadly weapon, (2) attempted robbery with a deadly weapon, (3) robbery, (4) assault with intent to rob, (5) assault, and (6) grand larceny; and they were also convicted under another indictment (No. 5706) charging unauthorized use of an automobile. From the judgments entered thereon, defendants appeal.
Judgment as to first count of Indictment No. 5705 affirmed; judgment as to second count reversed; judgments as to third. fourth, fifth, and sixth counts vacated; judgment under Indictment No. 5706 affirmed.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Elsbeth Levy Bothe for appellants.
Charles C. Grice, Special Attorney, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Elliott Goldberg, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
The appellants were tried together on two indictments returned against them jointly in the Criminal Court of Baltimore before Judge J. Harold Grady presiding without a jury. Indictment No. 5705 contained seven counts: (1) robbery with a deadly weapon; (2) attempted robbery with a deadly weapon; (3) robbery; (4) assault with intent to rob; (5) assault; (6) grand larceny; (7) receiving stolen goods. Indictment No. 5706 contained three counts: (1) larceny of an automobile; (2) receiving the stolen automobile; (3) unauthorized use of the automobile. Each was found not guilty of receiving stolen goods charged by the seventh count of indictment No. 5705 and "guilty generally as to all other counts." Each was found guilty of unauthorized use of the automobile charged by the third count of indictment No. 5706. Each was sentenced to imprisonment for a term of 20 years on the convictions under indictment No. 5705 and for a term of 4 years on the conviction under indictment No. 5706, concurrent with the first sentence.
The only contention raised on appeal is that the evidence was not sufficient to sustain the convictions under indictment No. 5705.
The appellants state in their brief that they "cannot effectively contest the trial court's finding that they were guilty of unauthorized use of the automobile involved in Indictment No. 5706. There was proof that the automobile was taken without permission; Appellants were apprehended in the vicinity of the place where it had been abandoned after a chase, and the court chose to believe the testimony of a pursuing police officer identifying them as the occupants of the car." We agree.
On November 4, 1966, Robert Meals, the night manager of the Holiday Inn East located at 3600 Pulaski Highway in Baltimore City, while at work about 1:00 A.M. was "getting ready to call a cab" for one of the guests. He heard the front door close and, turning around, saw two men approaching the entrance to the desk. Each was carrying a gun. One of the men, who Meals was unable to identify, because he did not see his face, ordered the bellhop, Alan Hicks, to lie on the floor. Hicks identified this man as Price. At the direction of Price, Meals opened the cash register and handed him $323 in bills and change. Price asked where the safe was and upon being told it was locked in the manager's office forced Meals to get the key, open the safe and hand him a cloth bag containing $1166 which was in the safe. During this time, the other man, who Meals identified as Stewart, "was holding the gun on Mr. Hicks." During his testimony Hicks said that Price was wearing a long black weather-proof coat. While the robbery was in progress two police officers arrived at the scene on a routine check. They saw a man standing in the doorway leading to the reception desk and then walk to the passage leading to the back entrance of the building. They backed the police car to the rear entrance and two men ran out and, disobeying an order to stop, ran to a dark sedan automobile parked in the rear street. One, who was wearing a long dark coat, jumped into the driver's seat and the other, who appeared to be carrying a weapon and was identified by one of the officers as Stewart, was getting in the passenger side when the officer, having fired two warning shots, "fired another shot or two directly at him." The car sped away and the officer fired another shot which shattered the rear window. The automobile was found abandoned "the next morning" in an alley in the rear of the 400 block Patterson Park Avenue.
On November 16, 1966, police officers from Baltimore County and Baltimore City engaged in a high speed chase of an automobile proceeding south on Loch Raven Boulevard. At Asquith and Hoffman Streets the automobile was involved in a collision and three men jumped out and ran. One police officer identified two of the men who ran as the appellants and they were arrested shortly afterwards by another police officer as they were coming out of an alley in the rear of Asquith Street. The appellants presented no defense to the charges arising from this incident. Eight witnesses were produced by the defense in an endeavor to show that the appellants were elsewhere at the time of the robbery.
In reviewing the sufficiency of the evidence in a non-jury case, this Court determines whether the court below had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant's guilt. McFadden v. State, 1 Md. App. 511. We have no difficulty in determining that the evidence was so sufficient. Identification of the accused by a single eyewitness has been held sufficient to sustain a conviction. Crumb v. State, 1 Md. App. 98. The weight to be given a courtroom identification is a matter for the trial court. Hutchinson v. State, 1 Md. App. 362. The credibility of the witnesses is for the consideration of the trier of the facts, Borman v. State, 1 Md. App. 276, and alibi testimony is to be weighed by the trial judge who is not required to accept its truthfulness, Logan v. State, 1 Md. App. 213. The evidence was sufficient to prove the corpus delicti and the identity of the appellants as the criminal agents. Therefore, the judgments of the trial court on the evidence were not clearly erroneous and will not be set aside for that reason. Md. Rules 1086.
The general verdict of guilty under indictment No. 5705 convicted the appellants on each of the first six counts (a not guilty verdict being rendered on the seventh count). Manning v. State, 2 Md. App. 177. The conviction under the second count, charging attempted robbery with a deadly weapon, was inconsistent with the conviction under the first count, charging robbery with a deadly weapon. Tender, etc. v. State, 2 Md. App. 692. Having been convicted of committing robbery with a deadly weapon, the appellants cannot be found to have failed to commit it, which is a necessary ingredient in the proof of attempt. Boone v. State, 2 Md. App. 80, 114-115. Inconsistent verdicts of guilty under different counts of the same indictment, when both counts depend upon the same alleged acts, cannot stand. Johnson, etc. v. State, 238 Md. 528, 541. The judgments on the second count must be reversed.
Under the modern concept of the doctrine of merger of offenses, followed by this Court, the test is whether one crime necessarily involves the other. See Tender, etc. v. State, supra. By the application of the doctrine to facts of the instant case, each of the offenses of robbery (third count), assault with intent to rob (fourth count), assault (fifth count) and grand larceny (sixth count) merged into the offense of robbery with a deadly weapon (first count) upon the conviction of each appellant of that greater offense. The judgments under the third, fourth, fifth and sixth counts must be vacated.
The sentence as to each appellant was a general one, covering the convictions under each of the six counts. It appears that the court, as to each appellant, passed judgment on the first count charging the more serious offense, as is common practice in this State. See Berger v. State, 179 Md. 410, 415. As it did not exceed the maximum authorized by Md. Code (1967 Repl. Vol.), Art. 27, § 488 for robbery with a deadly weapon, the reversal of the judgments under the second count and the vacating of the judgments under the third, fourth, fifth and sixth counts do not invalidate the general sentence imposed.
As to each appellant: under indictment No. 5705: judgment as to the first count affirmed; judgment as to the second count reversed; judgments as to the third, fourth, fifth and sixth counts vacated as merging into the first count. Under indictment No. 5706: judgment affirmed.