text:
    WILLIAM GIBSON v. STATE OF MARYLAND
    [No. 17,
    September Term, 1968.]

      Decided November 7, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Orth, and Thompson, JJ.

      Joseph Zitomer for appellant.

      Bernard L. Gilbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and James B. Kcnkel, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

Appellant was convicted by a jury in the Circuit Court for Prince George’s County of daytime housebreaking and assault and was thereafter sentenced to concurrent six-year terms under the jurisdiction of the Department of Correction. Pie contends on this appeal that his identification by the victim of the crime was conducted under conditions so unnecessarily suggestive and conducive to irreparable mistaken identity that he was denied due process of law.

The evidence adduced at the trial showed that at approximately 3 :00 p.m. on April 19, 1967, a Negro male entered the home of Margie Jacobs without invitation, grabbed her leg, threw her backwards against the wall or window, reached down and felt between her legs and then, pursued by the victim’s screams, ran from the house toward the rear of a Jumbo Supermarket located near the Jacobs’ home. A young Negro man wearing a blue jacket wTas observed by David Eggleston fleeing from the general direction from whence the screams emanated, but he was unable to identify the individual whom he observed.

Mrs. Jacobs testified at the trial that she first observed her assailant standing on the porch of her home through a glass storm door; that she was only about ten feet from him and that he stood on her porch for about a minute before entering her house; and that after he had fled the crime scene, she immediately phoned the police and described him as a Negro male, about 5'9" tall, of slight build, 19 or 20 years of age, and wearing a navy blue coat and dark slacks. She further testified that on April 27, 1967, she identified appellant as her attacker from among four photographs shown to her by the police and also identified him at a two-man lineup held at the Hyattsville Police Station on May 1, 1967. She made an in-court identification of the appellant at the trial, testifying that there was no doubt in her mind that he was the person who broke into her home and assaulted her.

During her testimony, Mrs. Jacobs stated that she had never seen appellant before the crime, that she did not know where he was employed, and had never seen him working at the Jumbo Supermarket.

Detective Joseph Vasco testified that he obtained a description of the suspect by phone from Mrs. Jacobs on the day of the crime; that two days later Mrs. Jacobs phoned and told him that the individual who broke into her house “resembled a boy she had seen on the parking lot on previous occasions around the Jumbo,” and that his name was Gibson, a fact which she had “apparently” elicited from the manager of the Jumbo Supermarket; that as a result of this information, he then phoned the Supermarket manager and gave him a description of the suspect and learned from the manager that appellant had been employed there at one time and “had returned for a pay check”; that after this conversation he secured appellant’s photograph from police records and after going through some 50 to 75 other photographs, selected three others, showing the four photographs to Mrs. Jacobs at her home on April 27; that Mrs. Jacobs made a positive identification of appellant at that time; that thereafter on May 1, 1967, he phoned appellant’s home in the District of Columbia and spoke with his mother, telling her that he wanted to see the appellant at the Hyattsville Police Station in connection with a rape case; that appellant came to the Station that same day with his mother and was placed in a room with another young Negro male of similar appearance; and that Mrs. Jacobs identified appellant as her assailant at that time.

Appellant testified in his own behalf, stating that he had been fired from his job at the Jumbo store and was awaiting a ride home from his friend, an employee of Jumbo, at or about the time the crime was committed. Evidence was adduced by stipulation that appellant’s friend would testify that he saw appellant on April 19, 1967 at 2:55 p.m. at the Jumbo store and drove home in his company at 3 :00 p.m. that same day. There was testimony from appellant that Detective Vasco had coached Mrs. Jacobs at the lineup by telling her that “some changes have been made” in appellant’s appearance, but the substance of this statement was denied by both Detective Vasco and Mrs. Jacobs.

We think it clear that any confrontation between a victim of a crime and the accused for identification purposes, including a photographic identification, may be conducted under conditions so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law. See Simmons v. United States, 390 U. S. 377; Stovall v. Denno, 388 U. S. 293; Palmer v. Peyton, 359 F. 2d 199 (4th Cir.); Tyler v. State, 5 Md. App. 265. Whether the accused’s right to due process of law was violated in the conduct of such a confrontation depends on the totality of the circumstances surrounding it, Stovall v. Denno, supra, but a photographic identification will be set aside only if the procedure used was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, supra, at page 384.

Appellant does not specify which of his three identifications by the victim was made under conditions “conducive to irreparable mistaken identity,” but urges (a) that there was no need for a photographic identification; (b) that the three photographs shown to the victim bore no likeness to him; (c) that he should only have been placed in a lineup and not subjected to any photographic identification procedures; (d) that it was improper for the police to begin their search for suspects at the Jumbo Supermarket since the evidence showed a conflict between Detective Vasco’s testimony and that of the victim concerning whether appellant worked at that store, and (e) that the lineup was unfair since he was induced to attend it under circumstances which “created an atmosphere of suspicion even before the identification,” so that he was deprived “of an opportunity to behave like an innocent man.”

On the record before us we hold that there is no substance to any of these arguments. In Simmons, the Supreme Court noted with approval that photographic identification procedures have been widely and effectively used in criminal law enforcement, “from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs” (at page 384). The fact that it may have been Mrs. Jacobs who initially supplied appellant’s name to the police, based on her observation of an individual whom she had previously seen on the parking lot of the Jumbo Supermarket, does not in any way render the photographic identification procedure subsequently employed “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” within the meaning of Simmons. Mrs. Jacobs had a full opportunity to observe the appellant’s features, as she had seen him standing on her porch for approximately one minute before his entry into the house. In identifying the appellant, she testified that his picture “fits exactly how I recall Mr. Gibson looking as he stood outside my door.” The four photographs used by the police were placed in evidence and we have reviewed them; and while quite naturally there are differences in the facial features of the persons depicted in the photographs — differences which Mrs. Jacobs pointed out in her testimony — -we are satisfied that the manner and mode of the photographic identification procedure was proper under the circumstances and violated no constitutional rights of the appellant.

Nor do we believe that the victim’s identification of the appellant at the two-man lineup was prejudicially inspired. While the record does disclose that the victim was told prior to identifying the appellant in the lineup that he would be present, the evidence shows that the persons were of similar age, height, weight, coloring and build. The record shows that Mrs. Jacobs positively identified the appellant at the lineup, even though there had been some change in his hair between the time of the crime and the time of the lineup. We think the lineup procedure used, although of borderline constitutionality, was not so unnecessarily suggestive and conducive to irreparable misidentification as to constitute, in view of the totality of the circumstances, a denial of due process. The fact that the appellant may have been falsely induced by the police to come into Maryland to attend the lineup from his home in the District of Columbia is of no consequence on the facts of this case in evaluating the constitutional fairness of the lineup.

Having concluded that neither the photographic identification nor the lineup identification violated appellant’s right to due process of law, we hold that the in-court identification was not impregnated with mistaken notions of identity derived from the earlier identification procedures. The victim’s identification of appellant at trial was positive and emphatic and we do not find it to have been in any sense the product of an unconstitutionally tainted pre-trial confrontation.

Judgments affirmed.

        . We do not view Mrs. Jacobs’s testimony that she had never seen appellant before the crime as wholly inconsistent with Detective Vasco’s testimony that Mrs. Jacobs had told him that she previously saw a person who resembled her attacker on the Supermarket parking lot.

      . As the lineup was conducted prior to the Supreme Court’s decision in United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, it is not contended that appellant’s right to counsel was violated.


source: Caselaw Access Project

author: Murphy, C.J.,

license: Public Domain

text:
    CALVIN E. HALE v. STATE OF MARYLAND
    [No. 40,
    September Term, 1968.]

      Decided November 7, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Orth, and Thompson, JJ.

      R. Roland Brockmeyer for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Charles A. Herndon, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

Appellant was convicted by the court sitting without a jury of the unauthorized use of a motor vehicle and sentenced to three years under the jurisdiction of the Department of Correction. He contends on this appeal that certain incriminatory statements made by him during a custodial interrogation by the police were admitted in evidence over his objection in violation of the principles of Miranda v. Arizona, 384 U. S. 436.

The record discloses that appellant was arrested by the police after having been apprehended in a motor vehicle reported stolen by its owner. He was taken to police headquarters, interrogated by the investigating officers, and an oral statement taken from him.

Officer Ronald Milcles testified that before appellant was interrogated he was “advised of his rights;” that “the warning card” which was kept in the interrogation room was read and explained to appellant and appellant stated that he understood; and that the warning card was actually shown to appellant and he read it himself. The court inquired of Officer Mikles: “Do you have the card there?” The officer stated that he did not, but that appellant “was advised of his rights to counsel; he didn’t have to say anything and anything that he did say could be used against him in court.” In response to further inquiry by the State’s Attorney, Officer Mikles stated that he couldn’t remember if anything else was on the card. The card was neither offered nor received in evidence. On this foundation, the appellant objected to the introduction of his oral statement, but the court nevertheless admitted it into evidence. By his statement, appellant admitted that he knew the car was stolen.

In Robinson v. State, 1 Md. App. 522, we held that where the State undertakes over objection to introduce a statement taken by police during a period of custodial interrogation, it must show that the accused had been advised prior to such interrogation of his rights under Miranda, viz., (1) that he had a right to remain silent; (2) that anything he said may be used against him in court; (3) that he had a right to have a lawyer with him during the questioning and to consult with him at that time, and (4) that if the accused was indigent, a lawyer would be appointed to represent him. In Robinson v. State, 3 Md. App. 666, 671, we again held that in post-Miranda trials where the State seeks over objection to enter a statement taken from an accused during custodial interrogation, it must, as part of its proof of voluntariness, “affirmatively show that all warnings required to be given to an accused by that case prior to such interrogation were so given * * * and that the accused, in giving the statement, understood his rights and knowingly and intelligently waived them * *

The law could hardly be clearer since the Miranda decision itself states at page 479 that “unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

In Wiggins v. State, 4 Md. App. 95, 107 (footnote 7), we flatly held that a mere statement that the accused was “advised of his rights” would not be sufficient proof under Miranda.

At most, the record before us discloses that appellant was advised that he had a right to remain silent, a right to counsel, and that anything he said could be used against him. Insofar as the record shows, he was not told that he had a right to consult with a lawyer and to have the lawyer with him during the interrogation, as required by Miranda. See Duckett v. State, 3 Md. App. 563. Nor was he told that if indigent a lawyer would be appointed to represent him, as required by Miranda. See Robinson v. State, 1 Md. App. 522. There being no showing in the record that these warnings were actually given to the accused, we hold that his statement was improperly admitted in evidence over his objection. In so concluding we have considered, but do not find, that the error was harmless under Chapman v. California, 386 U. S. 18, nor do we find that the error was cured when appellant, testifying on his own behalf, admitted that the police “advised me of all my rights.” See Hunt v. State, 2 Md. App. 443. And we point out that in no event could appellant be deeemed to have knowingly and intelligently waived his right to counsel under Miranda since the record does not show that he was ever properly advised of these rights. See Brown v. State, 3 Md. App. 313; Duckett v. State, supra.

We think that reading the four-fold Miranda warnings to the accused from a so-called “Miranda card” is a sound police practice so long as the data on the card is in full compliance with Miranda standards. There is, of course, no requirement that a police officer memorize the Miranda warnings and testify from his memory at the trial precisely as to what he actually told the accused prior to interrogating him. It is sufficient if, at trial, the officer is able to testify that he read the warnings to the accused from the “Miranda card,” followed by a reading into evidence of what was read from the card. There is no requirement that the card itself be introduced into evidence. But as heretofore indicated, it is not sufficient for the police officer to simply state that he advised the accused of his Miranda rights or that he read the Miranda card to him. There must be a clear-cut showing in the record that the requisite warnings were in fact given.

In addition to proving voluntariness under the principles enunciated in Miranda, the State must show that the statement sought to be introduced, whether it be a confession or a significantly incriminating admission, was voluntarily given within the constitutional test articulated in Malloy v. Hogan, 378 U. S. 1, namely, that the statement was not extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. Whether appellant’s statement be classified as a confession or a significantly incriminating admission, the record before us does not show proof of voluntariness under the Malloy test, despite appellant’s general objection to its admissibilty.

Judgment reversed; case remanded for a new trial.

      . See Stewart v. State, 232 Md. 3:18; Plumley v. State, 4 Md. App. 671.

      . Appellant additionally contends that the evidence was insufficient to support his conviction because the vehicle had been taken from the possession of a bailee (parking lot) and there was no testimony offered at the trial to show that the bailee did not give permission to take the car. While the State characterizes this contention as “bizarre,” we think it is the State’s burden to show that the accused possessed the requisite criminal intent under Section 349 of Article 27 — an intent which possibly could not be demonstrated if the bailee, lawfully in possession of the vehicle, permitted its use, and there was no admission by the accused properly in evidence that he knew the car was stolen. See Thompson v. State, 4 Md. App. 31; Johnson v. State, 2 Md. App. 486.


author: Per Curiam.

text:
    JACKIE WAYNE TURNER and LEWIS CLIFFORD TURNER v. STATE OF MARYLAND
    [No. 54,
    September Term, 1968.]

      Decided November 12, 1968.

      The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Joseph W. Powers for appellants.

      Thomas N. Biddison, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and D. Warren Donohue, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Per Curiam.

The appellants were jointly charged in each of three informations, nos. 8590, 8591 and 8593 with obtaining money by a false pretense and in information no. 8592 with an attempt to obtain money by a false pretense. On 22 November 1967, in the Circuit Court for Montgomery County, each of them pleaded guilty to the charge under information no. 8592. The court accepted the plea as to each, found each guilty and a nolle prosequi was entered as to all other charges. On 22 January 1968, after a pre-sentence investigation report was received by the court, each appellant was sentenced to the jurisdiction of the Department of Correction for a period of 8 years, the sentence to commence as of 18 May 1967.

On appeal each appellant contends (1) that the sentence of 8 years constituted cruel and unusual punishment, and (2) that the court erred by considering improper matters in determining the length of the sentences.

(1)

The imposition of sentence in a criminal case is a matter within the province of the trial judge. Reid v. State, 200 Md. 89, 92, cert. den. 344 U. S. 848. If the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. Lawrence v. State, 2 Md. App. 736; Washington v. State, 2 Md. App. 633. An attempt to obtain money by a false pretense is a common law misdemeanor and no punishment therefor is fixed by statute. Fisher v. State, 1 Md. App. 505, 510. The sentences here did not exceed the maximum authorized by law since no maximum is prescribed. Austin v. Director, 237 Md. 314, 317. They are not invalid unless they violate the constitutional provisions against cruel and unusual punishment. Lynch v. State, 2 Md. App. 546. Under such circumstances the Court of Appeals and this Court have held that sentences such as the ones here do not constitute cruel and unusual punishment and the 8 year sentence imposed on each of the appellants did not violate the constitutional proscriptions. See Gleaton v. State, 235 Md. 271; Adair v. State, 231 Md. 255; Hobbs v. Warden, 223 Md. 651; Miller v. State, 1 Md. App. 653.

(2)

Since the imposition of sentence is a matter peculiarly within the province of the trial judge, the general rule is that he may inquire into any information pertaining to the defendant in order to give a fair sentence. Gee v. State, 2 Md. App. 61, 68. He may consider the defendant’s entire background, including prior convictions, Miller v. State, supra. See Thomas v. State, 2 Md. App. 645. The appellants claim that the trial judge in sentencing them considered the details of the charges against them to which a nolle prosequi had been entered and they urge that this was improper, citing Jones v. State, 221 Md. 141. We discussed the subject at length in Baker v. State, 3 Md. App. 251. There we remanded for the limited purpose of redetermination of the sentences imposed where it was not clear from the record that the sentencing judge did not, in imposing a maximum sentence on a burglary conviction, give prime consideration to the possibility that the defendant, though neither charged nor convicted of other similar burglaries in the county of the situs of the crime for which he was convicted, was nevertheless guilty of them. We held that such consideration was impermissible and if the sentencing judge was influenced by it so that any part of the sentence was attributable to it, the defendant would have been denied due process under Amendment XIV to the Federal Constitution.

Upon accepting the pleas of guilty by the appellants, the lower court heard testimony from a detective lieutenant of the Montgomery County Police who had investigated the case. It appeared from his testimony, which was received without objection, that all the offenses charged against the appellants in the four informations against them involved the same victim, Mrs. Edna Clayton, 84 years of age, and were part of the same transaction, “a termite job” on her dwelling. The three informations to which the nolle prosequi had been entered apparently alleged money actually obtained from her for the work, about $7800, and the information to which they pleaded guilty alleged $2800 which they attempted to obtain. A professor of entomology, at the request of the police, inspected the dwelling and found that there had been no termite control work done of any substance, that where the termites were supposedly exterminated there had been no termites and “that there were some termites in the basement * * * still there upon completion of the job.” A fair price for such a job, if required, would have been $200. The court inquired of the officer as to the modus operandi used in convincing Mrs. Clayton that she had termites in her house. He explained that the appellants came to the house, told her they would make a free inspection for termites and upon inspection told her there were termites and that it would take treatments “to remedy the house.” Groups of men came to the house on several occasions and “allegedly did termite control,” obtaining in all $7800 from her. The police were alerted by an official of a building and loan association from which the money had been withdrawn, a lookout was placed, the appellants were apprehended when they returned to the house and were identified by Mrs. Clayton as two of the men who had contracted to do the job. Mrs. Clayton also testified without objection. Her testimony corroborated the substance of the police officer’s testimony, and she made an in-court identification of the appellants. After hearing this testimony defense counsel was asked if he desired to submit any evidence in extenuation and mitigation and said he did not at that time but requested a pre-sentence investigation which the court agreed to order. At the sentencing each appellant was asked by the court if he had any reason why sentence should not be imposed and answered that there was not. Argument was then made by the defense and the State. Each appellant was asked by the court if he had anything personally to say before sentence was imposed. Lewis Turner said that he had never been in trouble before and that it would be a hardship on his family if he went to the penitentiary and that his wife had to borrow money to get him out on bond and pay his lawyer because he “didn’t have the money.” Sentence was imposed on him. Jackie Turner said that he did not get “this money in this case. I only saved $250 out of it, that’s all.” He admitted to a prior record for burglary and false pretenses. Sentence was imposed on him. Then the sentencing judge told the appellants: “I am giving you this sentence here for the purpose of deterring both of you from continuing to prey upon the people of Montgomery County as you did in these four cases, one for which you are standing before this court. What you people did, it was a pretty cruel unconscionable type of larceny that you committed on this elderly eighty-two year old lady * * *_» ]^0 objection was made to the remarks.

It appears from his remarks that the sentencing judge considered all the evidence before him in determining the sentences, and that the evidence included the details of the offenses charged in the informations which were not tried. But we do not think that it was improper for him to do so in these circumstances. The case here is readily distinguishable from Baker v. State, supra, where the judge may have considered the fact that other burglaries had been committed, in no way shown to have been connected with the defendant or the offense of which he was convicted and for which he was sentenced. Here the substance of the evidence before the judge would have been relevant and material on the issue of innocence or guilt had the offense to which the appellants pleaded guilty gone to trial on the merits. It is firmly established that evidence of acts may be admitted to show motive, intent, absence of mistake or accident or a common scheme or identity, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Cole v. State, 232 Md. 111, 120-121. See Purviance v. State, 185 Md. 189; Loker v. State, 2 Md. App. 1. We find that the sentence imposed on each of the appellants was a just one based on proper considerations and that neither of them was denied due process of law thereby.

Judgments affirmed.


text:
    WILLIAM WALTZ HOWELL v. STATE OF MARYLAND
    [No. 57,
    September Term, 1968.]

      Decided November 12, 1968.

    The cause was submitted to Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Gerald Siegel and Philip D. Quint for appellant.

      Francis B. Burch, Attorney General, James A. Wise, State’s Attorney for Caroline County, and Thomas N. Biddison, Jr., Assistant Attorney General, for appellee.
   Per Curiam.

Appellant was convicted by a jury in the Circuit Court for Caroline County of storehouse breaking and larceny and was thereafter sentenced to a term of ten years imprisonment. He contends on this appeal (a) that certain statements made by him to the police were introduced in evidence in violation of the principles of Miranda v. Arizona, 384 U. S. 436, and (b) that he was convicted upon the uncorroborated testimony of an accomplice.

The evidence at trial showed that at 5 :18 a.m. on Sunday, July 2, 1967, the police were notified that the burglar alarm at Cos’s Tavern had been actuated. Two officers immediately went to the tavern where they observed appellant sitting behind the wheel of a car parked approximately seventy-five feet north of the tavern. One of the officers went to the rear of the tavern where, after hearing a crash, he observed two cases of beer being pushed out of the tavern window, followed by one Wesley Eaton. Both Eaton and appellant were arrested at the crime scene.

The record discloses that after appellant was given his particularized four-fold Miranda warning, he stated that he didn’t wish to talk to the police. Approximately an hour and a half later, while appellant was being “processed” at the police station, he was told in narrative form that Eaton admitted that it was his idea to break into the tavern and that the appellant, with knowledge of the criminal design, brought him there from Baltimore to burglarize the premises. Without any questioning by police, appellant responded to this information by admitting that he knew Eaton, that he had picked him up hitchhiking, and that while they had stopped along the road, he did not know that Eaton intended to break into the premises. These statements were introduced in evidence over appellant’s objection.

In Miranda, the court held at page 473 that if, after the requisite warnings are given, “the individual indicates in any manner at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” While quite clearly appellant was in police custody when he made the incriminating admissions, we think it plain that his statements were not made in response to an “interrogation” within the meaning of Miranda-. On the record before us, we hold that there was no “questioning initiated by law enforcement officers” within the ambit of the Miranda decision; rather, the officers respected appellant’s right to remain silent following his arrest and it was not until almost two hours had elapsed that they advised him of what Eaton had told them. Appellant’s response to such police information was not the product of an interrogation, either direct or subtle, but was more in the nature of volunteered information. See Campbell v. State, 4 Md. App. 448; Duckett v. State, 3 Md. App. 563; Myers v. State, 3 Md. App. 534.

Nor do we find any merit in appellant’s second contention. In Boone v. State, 3 Md. App. 11, 19-20, we observed that “the rule in this State is that evidence corroborating the testimony of an accomplice is not sufficient if it merely shows the commission of the offense or the circumstances thereof and that some of the material facts of the accomplice’s testimony which it must support are such material facts which tend to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself.” We think appellant’s presence at the scene of the crime, coupled with his admission that he knew Eaton, and with other evidence in the case showing that appellant and Eaton lived within a block of each other, constituted sufficiently corroborative evidence of appellant’s identification with the perpetrator of the crime and his participation in the crime itself. Even without Eaton’s testimony, the fact of appellant’s presence at the scene of the crime was under the circumstances of this case strong evidence of his guilt. See Tasco v. State, 223 Md. 503.

Judgment affirmed.


author: Orth, J.,

text:
    ROBERT WILLIAM NICHOLS v. STATE OF MARYLAND
    [No. 29,
    September Term, 1968.]

      Decided November 13, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Sidney Blum and Eugene A. Alexander, III, for appellant.

      William E. Brannon, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Clewell Hozvell, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

This case comes to us on appeal from judgments entered by the Circuit Court for Baltimore County upon the convictions of Robert William Nichols by the court without a jury of assault upon Seymour Robert Goldstein (2nd count of indictment 32224), upon his wife, Ann Goldstein (2nd count of indictment 32226) and upon his children, Mark Goldstein (2nd count of indictment 32225) and Sheril Goldstein (2nd count of indictment 32227) and of the unlawful use of a telephone proscribed by Md. Code, (1967 Repl. Vol.), Art. 27, § 555A (4th count of indictment 32224). The appellant was sentenced to imprisonment for a term of 5 years on the conviction under the 2nd count of indictment 32224 and sentence on each of the other convictions was suspended generally. The sole contention on appeal goes to the sufficiency of the evidence to sustain the convictions. The appellant claims that the evidence was circumstantial and, therefore, in order to justify the verdicts of guilty it must not only meet the ordinary test of sufficiency but also the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. He asserts that the evidence, so tested, was insufficient.

THE ASSAULT CONVICTIONS

The evidence adduced at the trial clearly proved the corpus delicti of each of the assault offenses. It showed that the Gold-stein residence, occupied at the time by Mr. and Mrs. Goldstein and their two children, was fired upon about 4 :00 A.M. on 30 October 1966. Goldstein testified:

“My home was shot up by a rifle, the bullet entering my child, Mark’s room right above his bed; another bullet entering the side wall of the house above my baby’s crib, Sheril, my daughter, and another bullet entered our bedroom wall, side wall, and lodged into the dresser right next to our bed.”

Photographs showing the rooms and the damage were received in evidence. Goldstein heard three shots. No one was seriously injured “except for the plaster that fell on my daughter, and some of the glass was on my son, because the glass from the window came in all over him.” The trial judge said: “There is one piece of incontrovertible evidence in this case, and that is at some time around 4:00 A.M. on the morning of October 30th, 1966, someone fired three bullets from some weapon into the home of Goldstein.” He also found as a fact, from the evidence, that Mr. and Mrs. Goldstein and their two children, as named in the indictment, were in the home at the time.

The question is, therefore, whether the evidence was sufficient to show the criminal agency of the appellant. The testimony of Goldstein was that he was an attorney and had represented the appellant’s wife, Yvonne Nichols, at the time employed by him as a secretary, in a domestic relations matter “for child support and divorce,” in 1965 and 1966. Around the end of August 1966 or the first part of September the appellant drove to Goldstein’s office on a motorcycle, and told Goldstein that he should fire Mrs. Nichols, “that I should tell her to run and take the children out of town because he was going to take the children from her, and that he was tired of fooling around with this, and he wasn’t going to pay any more money for his children’s support, that he was going to handle this matter himself if it didn’t get rectified. He told me that if I didn’t get out of this case and I didn’t fire her, throw her out in the street, that he was going to get me, that he would pick me off with a rifle.” About 3:00 A. M. on 30 October 1966 a phone call was received in the Goldstein residence. Mrs. Goldstein answered the phone and referred the call to her husband. Gold-stein recounted the conversation:

“As I took the phone, he said, ‘This is sweet Bobby,’ and I recognized his voice immediately, and I said, T don’t know any sweet Bobby. Who do you mean sweet Bobby?’ He said, ‘You know who I mean. This is sweet Bobby.’ I said, T don’t know who you are.’ He said, ‘This is Vonnie’s husband, Robert Nichols, and I am going to tell you something. You either fire her and get out of this case or I am going to get you. I am getting tired of fooling around with this thing in court. I am going to pick you off with a high-powered rifle. I haven’t had an opportunity because I work on the state roads on the Eastern Shore and during the summer I am down there. I can’t get up here much, but during the winter I can get up here, and it’s going to be a long winter.’ And I told him, ‘Look, you have an attorney, you discuss these things with him. I don’t want to hear this at my home at 3 :00 o’clock in the morning,’ and then he got abusive and he hung up.”

He identified the appellant as the caller. “I have heard his voice numerous times in court. He has called my office and I have spoken to him on the phone there.” See McGuire v. State, 200 Md. 601; Lenoir v. State, 197 Md. 495. Goldstein called the police, Officer C. Mathis responded to the call, and Goldstein reported the incident to him. About one hour later the home was fired upon. Goldstein heard “a roar of a motor which was very similar to either a souped-up automobile or a motorcycle, but a very loud muffler outside pulling away, very similar to a cut-out muffler or sports car type of an automobile.” This incident was reported to the police and officer Mathis returned about 4:40 A.M. to investigate the shooting.

The appellant’s wife testified that in June or July 1966 about 2 :00 or 3:0Q o’clock in the morning she received a phone call from her husband. She was separated from him at the time and in the process of obtaining a divorce. “When Bobby called me, he told me that — at first there was idle conversation, and he told me later that to tell Mr. Goldstein to fire me, and I asked him why he said that, and he just said, ‘Just tell him to fire you.’ He said that he knew where he lived, and I said, ‘Well, what does that have to do with it?’ and he said, T can sit on any hill out there and pick him off with a rifle any time I want to.’ ”

Mrs. Alma T. Lane, the mother-in-law of the appellant, testified that “a couple of weeks” after the shooting she was in a cocktail lounge at which she was to meet her husband when the appellant came in. She told him she was surprised that he was out of jail and he laughed and said, “Well can’t keep me in jail long.” They “got to talking about my daughter and the children.” “I said I was worried about my daughter and grandchildren, their safety, and he said, ‘You never have to worry about Bobby and the children, I wouldn’t hurt them, but that bastard, Goldstein, I am not finished with him yet. I am still going to get him.’ I said, ‘Bobby, why don’t you leave the man alone, he has never hurt you?’ He said, ‘Well, you just don’t worry about it. You leave it to me.’ So we discussed a few more things, and that was it.”

Evidence was offered by the appellant. His father testified that the appellant had come home from the Eastern Shore about 10:00 or 11:00 P.M. on 29 October and left about 11:30 P.M. He did not see him again until the next evening. His son owned a motorcycle but did not take it out that night. The motorcycle was kept in a garage under the house and was still there the following day. He did not like motorcycles, was very conscious of the noise they make and he would have known had his son taken it out. He did not know of any rifle owned by his son although he had “a single bolt shotgun.” Gloria Lenick testified that she was a barmaid at “Denny’s” on Eastern Avenue and saw the appellant about midnight on 29 October. He met a girl named Kitty and drank with her until closing time at 2:00 A.M. “He was plastered, he was actually stupid drunk. * * * he wasn’t able to walk.” A cab was called — “at 2:00 o’clock, we usually try to get them out as fast as we can, and if they are not able to drive, if we see they are not able to drive, we call a cab, and somebody else in the bar called a cab, and we waited for the cab to come.” Kitty and some other person helped him out to the cab. On question by the court it appeared that she was not sure that she had seen the appellant on a Friday or Saturday night but it was “on the weekend.”

Kitty, Patricia Ann Lyons, testified that she had known the appellant “around two years.” She met him at Denny’s about midnight on 29 October. “We stayed there and danced, and drank, and we talked to a few people, and when they closed we got a cab and went home. * * * when we left there, he was pretty drunk.” It was a new Eastern cab. They went to her apartment arriving “around 2:30, quarter to 3:00. I am not too sure.” She put him on a couch and he went to sleep. She fixed herself some breakfast, read the paper and went to bed about 4:00 A.M. The next morning the appellant was still on the couch when she woke him up about 11:00 A.M. He did not use the phone during the time he was there and if he had left the apartment she would have known it because her dog would have barked. It was later brought out that she was pregnant at the time and that she could not say for sure that the appellant was the father of the child but he could have been.

An automobile mechanic testified that an automobile belonging to the appellant was in his garage in October 1966 and that the appellant had not gotten it until after noon on 30 October. The car did not have any unusual mufflers.

The appellant testified that on 29 October 1966 he was working for the State Roads Commission on the Eastern Shore. He finished work about 5 :30 or 6:00 P.M. and came to Baltimore by bus. He went to his parents’ home and later went out for the evening. “I went down to Eastern Avenue, I always go down to Eastern Avenue, I always do on Saturday nights, and I took a cab down.” He met Kitty and “we just drank and danced * * * usually on Saturday nights I get pretty well loaded.” Finally Kitty fold him it was time to go and “we got in a taxi * * * we got to her place, and I fell asleep, and that is all I know.” He said he did not use an automobile that night, did not use his motorcycle that night and did not own “a high-powered rifle.” He found out Sunday that the police were looking for him, called his attorney and arrangements were made to surrender him to the police at a hearing before the “Master at Chancer}-” the next morning. He denied that he had ever telephoned Goldstein “at his office or anywhere else,” that he had ever gone to Goldstein’s office to see him or see Mrs. Nichols after he had employed counsel in the domestic matter in January 1966, that he had ever told his wife or her mother that he was going to injure Goldstein or wanted to injure him or intended to injure him, or that he had met his mother-in-law in the cocktail lounge as she had alleged. He had once assaulted his wife when he “caught her with this fellow” and had been in jail for violation of the motor vehicle laws in February 1963 — operating with a revoked license and making a false affidavit to obtain a license. On cross-examination he admitted that he had been convicted of “a couple of assaults, and I had been in a couple of fights.”

Additional testimony was offered by the State in rebuttal relating to the cab alleged to have transported the appellant and Kitty from Denny’s to her apartment. The secretary of the cab company, charged with the responsibility of keeping its books and records testified that the records showed that a call was received for a cab at 1:46 A.M. on 30 October from Denny’s Bar. Cab No. 5 responded. It also had a call at 41 Langley Road at 2:20 A.M. and at 63 Oliver Road at 2:35 A.M. The manifests did not indicate any other calls at Denny’s Bar around those times. The driver of cab No. 5 did not remember if he had responded to the job assigned to him on the 1:46 A.M. call. It was not recorded in his manifest but at the time his wife “was very, very ill * * * my mind wasn’t on my work at all * * * I probably just didn’t put it down” but “I never refuse a call.”

The test of legal sufficiency of evidence was enunciated in the Memorandum on Motion for Reargument in Edwards v. State, 198 Md. 132, 157-158:

“In any case, civil or criminal, to meet the test of legal sufficiency, evidence (if believed) must either show directly, or support a rational inference of, the fact to be proved. In a civil case the fact must be shown, or the inference supported, by a preponderance of probability or an opposite preponderance must be overcome. In a criminal case the fact must be shown, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created. The difference in degree of proof is ordinarily for the triers of facts.”

In Vincent v. State, 220 Md. 232, 237, the Court restated the rule as to criminal cases:

“In every criminal case, evidence, to meet the test of legal sufficiency, must show directly, or support a rational inference of, the facts required to be proved; and the facts must be established, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created.”

The appellant contends that this' test is not by itself applicable to the evidence in the instant case but, as the evidence against him was circumstantial, must be considered along with the test relating to evidence of that character. In the opinion in Edwards the Cotirt did not discuss circumstantial evidence. In the motion for reargument it was asserted by counsel for Edwards that the “most important single contention * * * was that the evidence, being entirely circumstantial, did not exclude to a moral certainty every other reasonable hypothesis than that of guilt. * * * this is the first time the question has been squarely presented to this court and it was hoped that the court would adopt or reject the rules wdiich have been followed in other jurisdictions for many years. But it appears that the court has failed to give the question any consideration whatever. * * * The court’s opinion becomes authority for the proposition that Maryland has no definite rules for the appraisal of circumstantial evidence * * 198 Md. at 152. In the Memorandum on the Motion the Court said, 198 Md. at 157:

“If we assume that circumstantial evidence, or all the evidence of any kind, must ‘exclude to a moral certaimw every other reasonable hypothesis than that of guilt’, this assumption does not change the result in the instant case — and does not furnish any ‘definite rule for the appraisal of circumstantial evidence.’ ”

In Shelton v. State, 198 Md. 405, 412 the Court again stated the test of legal sufficiency enunciated in Edwards and added: “Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” But in Vincent v. State, supra, 236-237, the Court made clear that it is only “when guilt is based solely upon circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” In Brown v. State, 222 Md. 290, 296 the Court said the Maryland rule was correctly stated in Vincent but emphasized “solely” and “reasonable”. See Glaros v. State, 223 Md. 272, 281.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. It is admissible whenever relevant to the determination of guilt or innocence and great latitude is allowed, the court being given a wide discretion in admitting any fact or circumstance which may throw some light upon or serve as a link in a chain of evidence bearing upon the issues at trial. Circumstantial evidence alone is sufficient to support a verdict of guilty (except for the crime of treason and, in some jurisdictions, perjury) or it may be used in conjunction with direct evidence. It may corroborate other testimony and may be used to prove any element of the crime, such as the corpus delicti or the criminal agency of the accused.

The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused. The statements in this paragraph are contained in substance 3 Wharton’s Criminal Evidence (12th Ed. 1955) § 980, pp. 465-477 and 1 Under-hill’s Criminal Evidence (5th Ed. 1956) §§ 15-19, pp. 16-29.

As to the assaults, the evidence met the test of legal sufficiency (to be applied by the lower court sitting as a jury) as stated in Vincent v. State, supra, and restated by this Court in Coleman v. State, 4 Md. App. 386 and Cobb v. State, 2 Md. App. 230. In considering the evidence the lower court was guided by established rules of law. Proof of guilt beyond all doubt has never been required. Young v. State, 4 Md. App. 286. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous coincidence consistent with innocence be negatived. Hayette v. State, 199 Md. 140, 144. The lower court could weigh the evidence and determine the credibility of the witnesses. Roeder v. State, 4 Md. App. 705; Gibson v. State, 4 Md. App. 222. It was under no obligation to believe the appellant’s denials or explanations. Eley v. State, 4 Md. App. 230; Tillery v. State, 3 Md. App. 142. It could weigh the alibi testimony and was not required to accept its truthfulness. Logan v. State, 1 Md. App. 213. And if we assume that the evidence against the appellant wa,s solely circumstantial, such assumption would not change the result. The lower court could have properly found that the circumstances, taken together, were inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence. “[Circumstantial evidence need not be such that no possible theory other than guilt can stand * * * It is not necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors. The rule does not require the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt.” 3 Wharton’s Criminal Evidence (12th Ed. 1955) § 980, p. 477. While it must afford the basis for an inference of guilt beyond a reasonable doubt, it is not necessary that each circumstance, standing alone, be sufficient to establish guilt, but the circumstances are to be considered collectively. 1 Underhill’s Criminal Evidence (5th Ed. 1956) § 17, p. 23 and p. 25.

Authority for our review of the case upon the evidence is Md. Rule, 1086 and we are bound by its provisions. It provides :

“When a case has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

Our function is not to determine whether we would have come to a different conclusion from that of the lower court nor need we be convinced beyond a reasonable doubt of the appellant’s guilt; we determine whether the lower court was clearly wrong in reaching a verdict of guilty on the evidence. Trout v. State, 3 Md. App. 259; Bury v. State, 2 Md. App. 674. We do not think that it was. The lower court found as a fact that about 4:00 A.M. on 30 October 1966 someone fired three bullets from some weapon into Goldstein’s home occupied at the time by Mr. and Mrs. Goldstein and their two children; that a phone call to Goldstein preceded the shooting by about an hour; that the caller represented himself to be the appellant; that Gold-stein believed that the caller was the appellant and so identified him; that the person who called was the person who fired the shots; and that person was shown by the evidence “beyond a reasonable doubt and to a moral certainty” to be the appellant. As there was substantial evidence and rational inferences therefrom to support these findings, the judgment of the lower court was not clearly erroneous and we may not set it aside. Sutton v. State, 2 Md. App. 639.

The appellant urges that the evidence was confused as to the time of the phone call and the shooting due to the change from daylight saving to standard time. Mrs. Goldstein in giving the time of the call as 3 :00 A.M. stated they had set the clock ahead an hour before retiring. But the testimony of Officer Mathis clearly established that he received a call to go to the Goldstein residence at 3:15 A.M. standard time at which time Goldstein reported the phone call to him, and that he returned to investigate the shooting at 4:49 A.M. standard time. The question is also raised as to the time the New Eastern Cab Company received a call to go to Denny’s, but again it is clear that the time was determined to be 1:46 A.M. standard time — “after the adjustment.” The appellant complains that no evidence was produced as to the type of bullet fired into the house and that it was not shown that he owned a rifle. He points out that he did not confess nor make any statement to the police and that he produced testimony showing he was elsewhere, and had not used his car or his motorcycle that evening. But these matters go to the weight of the evidence and to the credibility of the witnesses and are not considered by us in our determination of the legal sufficiency of the evidence.

THll CONVICTION OP UNLAWFUL USB OP A TBLBPHONB

The appellant was found guilty of the offense charged in the 4th count of indictment No. 32224 purporting to allege the crime proscribed by Md. Code, (1967 Repl. Vol.), Art. 27, § 555A. The section provides, in relevant part:

“It is unlawful for any person to make use of telephone facilities or equipment (1) for an anonymous call or calls if in a manner reasonably to be expected to annoy, abuse, torment, harass, or embarrass one or more persons; (2) for repeated calls, if with intent to annoy, abuse, torment, harass, or embarrass one or more persons; or (3) for any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent.”

The evidence did not show a violation of (1) as the call was not anonymous. The caller identified himself as “Vonnie’s husband, Robert Nichols,” and was so identified by Goldstein. Nor did it show a violation of (2) as there was only one call proved and not repeated calls. The count did not allege a violation of (3) and in any event the evidence was not sufficient to establish that any comment, request, suggestion or proposal was obscene, lewd, lascivious, filthy, or indecent.

We think that the evidence was not legally sufficient to warrant the finding of the lower court that the appellant was guilty of this offense beyond a reasonable doubt. Therefore its judgment on the evidence was clearly erroneous and must be set aside.

Judgments on the second count of each of indictments nos. 32224, 32225, 32226 and 32227 affirmed;

Judgment on the fourth count of indictment no. 32224 reversed and case remanded for a new trial thereon; appellant to pay costs.

      . Prior to 1 January 1950 the law did not permit appellate review of facts. Abbott v. State, 188 Md. 310, 313. See Jones v. State, 188 Md. 263, 273; League v. State, 36 Md. 257. Compare Winkler v. State, 194 Md. 1. Criminal Rule 7(c), effective that date, (in substance the same as present Md. Rules 1086 and 886a) provided that when a case has been tried by the lower court without a jury, the Court of Appeals will review it both on the law and the evidence. This antedated the amendment to Art. XV, § 5 of the Constitution of Maryland by almost a year. The constitutional provision as amended, implemented by statute (now Art. 27, § 593) and rule (now Md. Rule 755) permits appellate review of the sufficiency of the evidence in a case tried by a jury predicated upon the denial by the lower court of a motion for judgment of acquittal.

      . Compare United States v. Ragland, 306 F. 2d 732 (4th Cir., 1962), cert. denied 83 S. Ct. 504, in which the Court, noting that the Government relied on circumstantial evidence, said, “[Wjhich type of evidence is, of course, sufficient to support the verdict, although it does not exclude every reasonable hypothesis consistent with innocence,” citing Holland v. United States, 348 U. S. 121, 139 and Moore v. United States, 271 F. 2d 564, 568 (4th Cir., 1959).
      And see Shockley v. State, 218 Md. 491, and Tasco v. State, 223 Md. 503 in which the circumstantial evidence rule was not applied by the majority, although Judge William R. Horney in dissent felt that the evidence was solely circumstantial and should have been considered within the rule.

      . In Breeding v. State, 220 Md. 193, 200, it was held that venue may be established by circumstantial evidence. In Gamble v. State, 2 Md. App. 271 it was held that the corpus delicti may be proved by such evidence.

      . The appellant did not attack the sufficiency of the count to allege an offense. It alleged that the appellant “ * * * unlawfully did make use of the telephone facilities or equipment for an anonymous call or calls, or with intent to annoy, abuse, torment, harass, or embarrass the said Seymour Robert Goldstein * * It appears that it does not correctly allege the offenses as proscribed by the statute.

      . Webster’s Third New International Dictionary (unabridged) defines anonymous as “having or giving no name: of a name or with the name unknown or unrevealed.”


text:
    JOHN ROBERT MELIA and LLOYD CECIL SHELHORSE v. STATE OF MARYLAND
    [No. 30,
    September Term, 1968.]

      Decided November 13, 1968.

    The cause was argued before Murpi-iy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Alger Y. Barbee (John S. Mclnerney on brief) for appellants.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State's Attorney for Montgomery County, and
      Page J. Digman, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellants were jointly indicted and jointly tried by the court in the Circuit Court for Montgomery County. Each was convicted of storehouse breaking with intent to commit a felony (1st count) and petit larceny (3rd count). Concurrent sentences of 5 years on the 1st count and 9 months on the 3rd count were imposed on Melia and concurrent sentences of 4 years on the 1st count and 9 months on the 3rd count were imposed on Shelhorse.

On appeal from the judgments the contentions of the appellants go to the sufficiency of the evidence.

The 1st count of the indictment charged that the appellants did break “the storehouse, the premises of Carroll-J ames Co., Inc., a corporation, located at 8522 Georgia Avenue, Silver Spring, Montgomery County, Maryland” with intent to commit a certain felony, to wit, to steal goods “in excess of the value of one hundred dollars.” The 3rd count of the indictment charged that the appellants did steal “one reel of 4/0 electrical wire, being of the value of twenty-five dollars, current money; fifteen feet of T-W 12 gauge wire, being of the value of two dollars, current money; three rolls of copper refrigeration tubing, each roll of tubing being of the value of ten dollars, current money * * * of the goods of Carroll-James Co., Inc., a corporation.”

Two witnesses testified in behalf of the State — Herbert Shields, an eyewitness to the crime and Harry A. Carroll, Jr., an officer of the businesses occupying the storehouse. It is clear from the testimony of Carroll that there was no corporation by the name of “Carroll-James Co., Inc.” There were two corporations in existence at the time of the crime, “C. & J. Refrigeration and Air Conditioning Company, Inc.” and “Carroll Electric Company, Inc.” He was secretary-treasurer of the former and president of the latter. C. & J. Refrigeration and Air Conditioning Company, Inc. traded under the name “Carroll-James.” The storehouse basement — “It’s next to the Tastee Diner * * * It’s the 8500 block, I believe * * * of Georgia Avenue * * * in Montgomery County” — was rented by “C. & J., Carroll-James” and owned by “Mr. Warner.” The goods in the storehouse were owned by both corporations and had a value of between $1800 and $2000. He was called by the police about 3 :00 — 4:00 A.M. on 25 March 1967 and went to the storehouse. The police on the scene told him “somebody had busted into the place * * * I looked at the door and there was a roll of cable outside the front of the door and the door had been busted in and the panel, one of the panels had been knocked out * * * where the lock was fastened onto the door was broken away from the door.” He had been at the premises between 1:00 P.M. and 3:00 P.M. on 24 March, unlocked the door when he went in and locked it when he left. The door was not damaged at that time. He had never at any time given Melia or Shelhorse permission to enter the storehouse; he had never seen them before the breaking. The cable he saw “was approximately one hundred feet of No. 4 TH or RHW insulation wire on a reel.” Its value was “between sixty and seventy dollars.” It was the property of Carroll-Electric Company, Inc. An inventory taken later disclosed that the only other goods missing was “some copper tubing.” He did not know its value.

Herbert Shields testified that he worked at the Tastee Diner next door to the storehouse. On 25 March he finished work at 3:40 A.M. and started to wash his car at the rear of the Diner before going home. The area was well lighted and he saw a 'man coming out of the basement door of the storehouse — “the electric place weerh they kept the equipment”- — carrying some electric wires. When the man saw Shields “he put wires in the trunk” of a car and slammed the lid. Shields saw another man standing by the car. Both got in the car and drove away. The car lights were not turned on. Shields called the police. When the police arrived he went to the storehouse with them. The door was open and the lock broken off. He saw some electrical wires on the ground. At the trial Shields identified Melia and Shelhorse as the men lie had seen. He said Melia got in the driver's side of the car and Shelhorse in the passenger side. On cross-examination he said the car was a 1964 or 1965 White Ford four door with Maryland tags. He gave the police some of the tag numbers. He recognized the men because “they come in the Diner all the time.” He did not know their names except that Shelhorse was called “Peewee.”

At the close of the evidence offered by the State, the appellants moved for a judgment of acquittal “on each and every count, on the grounds of fatal variance.” After argument by the State and the defense the State moved to amend the indictment and after further argument the court granted the motion to amend, over objection, and denied the motion for judgment of acquittal. The proposed amendment was not clearly articulated but we are satisfied from the record that the amendment ultimately made was to substitute the name of each of the two corporations for “Carroll-James Co., Inc.” wherever it appeared in the indictment.

On appeal the appellants do not contend in their brief that the granting of the motion to amend was error, assuming incorrectly that the court did not grant the motion. In oral argument it was conceded that the motion was granted. We find no error in the granting of the motion to amend. Mid. Rules, 714; Corbin v. State, 237 Md. 486; Wilkins v. State, 4 Md. App. 334. As amended, therefore, the first count of the indictment charged that the storehouse broken was the premises of C. & J. Refrigeration and Air Conditioning Company, Inc. and Carroll Electric Company, Inc. and the third count charged that the goods stolen were the properties of those two corporations.

THE LARCENY CONVICTION

Simple larceny at common law is the taking and carrying away of the personal goods of another of any value from any place, with a felonious intent to steal such goods. Clark and Marshall, A Treatise on the Law of Crimes (6th Ed.) § 12.00, p. 706. Since larceny is a crime against possession, Brown v. State, 236 Md. 505; Wharton’s Criminal Law and Procedure (Anderson) § 464, an allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as laid in the indictment is an essential factor to justify a conviction, Anderson v. State, 3 Md. App. 85. It is well settled that ownership may be laid in the real owner — general interest — or in the person in whose possession the goods were at the time of theft — special interest. Petrey v. State, 239 Md. 601, 603. And it is not necessary to state the nature of the interest; the property may be described as the goods of the owner or as the goods of the person having possession. 32 Am. Jur., Larceny, § 114, p. 1067. So an allegation that a person is the owner may be sustained by proof that he has either a general or a special interest. But, as amended, the larceny count alleged that C. & J. Refrigeration and Air Conditioning Company, Inc. and Carroll Electric Company, Inc. were the owners oí the goods and the proof showed that only Carroll Electric Company, Inc. was the owner as holding the legal interest. The question is whether this was a fatal variance.

If the count be construed as laying the ownership in the two named corporations jointly (although it did not so state), it was not sustained by the proof that the stolen goods belonged to one of them individually nor would it be sustained by proof that separate articles belonged to one of the owners named and the remainder to the other. 52 C.J.S. § 99, Larceny, p. 918. If it was not certain whether the proof would show that the goods were the property of one of the corporations or the other or that one had possession although the other was the owner it would have been proper to allege the ownership in one corporation in one count and in the other corporation in another count of the same indictment, for the purpose of meeting the varying degrees of proof which the testimony might develop. But it was not proper, in one and the same count, to lay the property alleged to have been stolen in more than one corporation, because each count must contain such allegations as will enable the trier of facts to find the accused guilty on that count. Burgess v. State, 161 Md. 162, 166; 32 Am. Jur. § 113, Larceny, p. 1025. And although it is the rule that the stealing of several articles at the same time belonging to several persons may constitute one offense and be charged in one count, it is necessary that the count allege the ownership of each article, and not just generally that the articles belonged to the several owners. State v. Warren, 77 Md. 121. The count in the instant case did not do so.

We hold that there was a variance between the allegata and the probata, that the variance was material, and that the judgment as to the larceny count must be reversed.

THB STOREHO USB BREAKING CONVICTION

As amended, the first count of the indictment charged that the appellants “* * * the storehouse, the premises of C. & J. Refrigeration and Air Conditioning Company, Inc. and Carroll Electric Company, Inc., located at 8522 Georgia Avenue, Silver Spring, Montgomery County, Maryland there situate, unlawfully did break with intent to commit a certain felony there and therein, to wit, with intent then and there certain goods and chattels in excess of the value of one hundred dollars, current money, in the said storehouse then and there being found, then and there unlawfully to steal, take and carry away; * * *.” Evidence adduced was that the premises were rented by “C. & J., Carroll-James,” that “Carroll-James” was the trade name of C. & J. Refrigeration and Air Conditioning Company, Inc., and that goods owned by each of the refrigeration company and the electric company were in the storehouse when it was broken. The question is whether, in these circumstances, there was a material variance between the allegata and the probata.

Code, supra, Art. 27, § 32, proscribing the offense here charged, does not expressly provide that the storehouse broken be that of another. But the usual holding is that an indictment for burglary, whether at common law or under a statute, must allege ownership of the building broken. 13 Am. Jur. 2d, § 37, p. 342. The ownership, however, need not be that of the legal title owner. The Court of Appeals said in Hackley v. State, 237 Md. 566 at 569:

“Most, but not all, States require that the ownership of the building burglarized be stated in the indictment and proven so as to negative a right of entry by the accused and to establish identity. See Anno. 169 A.L.R. 887. It is generally held that the ownership alleged and shown need not be that of the legal title holder if another, not the accused, is in lawful possession of the building involved under a special property interest. The propositions set forth in this paragraph are supported by 13 Am.Jur.2d Burglary Sec. 37, p. 342 and 4 Wharton’s Criminal Law and Procedure (Anderson 1957), Sec. 178-1, p. 604, and the cases.”

And it has been held that the ownership of the building broken into is not an essential element of the crime and need not be proved precisely as alleged. 3 Underhill, Criminal Evidence (5th Ed. 1957) § 720, p. 1678 and cases cited in note 83. We think that in the instant case the allegation in the first count of the indictment and the proof were enough to show that the storehouse broken into by the appellants was not theirs, that they had no right to enter it without the permission of the lawful occupier, and enough to identify the building broken into and the personal property therein so as to protect the appellants against a subsequent prosecution for the same offense, which is all that is required. Sparkman v. State, 3 Md. App. 527, 531-532. We hold as to the first count that there was no material variance between the allegata and the probata.

THE CRIMINAL AGENCY OF THE APPELLANTS

The appellants urge that the testimony of one eyewitness was not legally sufficient “from consideration of its character and weight” and therefore the motions for judgment of acquittal at the close of the evidence offered by the State should have been granted. It appears that the motion then made was “on the grounds of fatal variance” and so argued. But in any event, the appellants thereafter offered evidence and by so doing withdrew the motions. Md. Rules, 755b. At the close of all the evidence motions for judgment of acquittal were again made and denied and the appellants now contend that “upon examination of all the evidence, it was legally insufficient to sustain” the convictions. The thrust of the appellants’ argument on the point is that the eyewitness, Shields, may have been mistaken in his identification of the appellants, not only in the light of the circumstances under which he claimed he saw them at the scene of the crime but in consideration of the evidence offered by them. The eyewitness was exhaustively cross-examined by counsel for each appellant as to what he saw, the time he saw what he described, and the conditions under which he saw it. But there was evidence before the court that Shields saw one of the appellants coming out of the broken premises carrying electric wires which he put in the trunk of a car at the scene, that the other appellant was standing beside the car, that when they became aware of Shields’ presence they entered the car and drove away without turning on the car lights, that Shields recognized them because they “come in the Diner (where he was employed) all the time.” Shields positively identified them at the trial. There was extensive evidence offered by the appellants to attack the credibility of Shields and to show that they were not present at the scene of the crime. It is firmly established that the identification by a single eyewitness is sufficient. Rodgers v. State, 4 Md. App. 407; Tillery v. State, 3 Md. App. 142; Crosby v. State, 2 Md. App. 578; Reed v. State, 1 Md. App. 662. The weight to be given a courtroom identification is a matter for the trial court. Cox v. State, 3 Md. App. 136 ; Hutchinson v. State, 1 Md. App. 362. Alibi evidence is to be weighed by the trial judge who is not required to accept its truthfulness, Logon v. State, 1 Md. App. 213, nor is he under any obligation to believe the explanations and denials of the accused, Gunther v. State, 4 Md. App. 181; Carwell v. State, 2 Md. App. 45. The matters now urged by the appellants go to the weight of the evidence and the credibility of the witnesses but they are for the trial judge to determine. Gibson v. State, 4 Md. App. 222; Trout v. State, 3 Md. App. 259; Dunlap v. State, 1 Md. App. 444. We determine whether the court below had sufficient evidence before it from which it could be fairly convinced beyond a reasonable doubt of the defendants’ guilt. Eley v. State, 4 Md. App. 230; Howard v. State, 1 Md. App. 379. We think there was such evidence in the instant case from which the trial court could find both the corpus delicti and the criminal agency of the appellants as to the storehouse breaking, which, in view of our holding herein, is the only conviction remaining for consideration. Therefore the judgment of the trial court thereon was not clearly erroneous and we may not set it aside. Md. Rules, 1086.

As to each appellant: Judgment under the first count of the indictment affirmed; judgment under the third count of the indictment reversed and case remanded for a new trial thereon.

      . Md. Code, (1967 Repl. Vol.), Art. 27, § 32 proscribes, in part, the breaking of a storehouse with intent to commit a felony or with intent to steal goods of the value of $100 or more. Larceny to the value of $100 or upwards is a felony, Code, supra, Art. 27, § 340; the stealing of goods under the value of $100 is a misdemeanor, § 341.

      . A police officer called by the State was not permitted to testify over objection for the reason that his name was not listed in an answer to a motion for discovery filed by Shelhorse.

      . The Srate first moved “to correct by interlineation that the premises were owned by C. & J. Corporation, Incorporated; rather, the property is owned by C. & J. Corporation, Incorporated, and the Carroll Electric Company, Incorporated.” Later the motion was corrected to read, “The storehouses, the premises of C. & J. Corporation, Incorporated and the Carroll Electric Company, Incorporated,” the State saying that was the motion “on all counts.” The correct name of the first corporation as given by Carroll was “C. & J. Refrigeration and Air Conditioning Company, Inc.”

      . After extensive argument during which both the State and defense referred to the corporations under a variety of names the court said, “The Court in making its ruling construed the amendment to mean nothing more than a substitution of those two corporate names for Carroll-James Co., Inc., wherever it later appeared in the indictment.” We think it clear that the court intended that the corporate names substituted be those names as given by Carroll during his testimony as the correct corporate names. In any event it is stated in 52 C.J.S. § 99c(l), Larceny, p. 918:
      “If the ownership is laid in a corporation under what purports to be its corporate name and the proof shows the owner to be a corporation of a different name, and there is no evidence connecting them and showing their identity, the variance is fatal. However, if it is established beyond a reasonable doubt that the corporation proved on the trial to be the owner is the same corporation as that in which the ownership is laid in the indictment, the fact that the name stated in the indictment differs from the corporate name proved will not usually be considered a fatal variance, especially where the name stated in the indictment is the one under which it is generally known, or by which accused knows and will recognize it, or, although misspelled, has the same sound as that of the true name.”

      . Larceny is distinguished as simple — unaccompanied by any circumstance of aggravation — or compound — when committed under circumstances of aggravation. Hochheimer’s Criminal Law (1st Ed.) § 691, p. 409. The English law, as a result of an early statute, classified simple larceny as either grand larceny or petit larceny (now frequently written petty larceny). Statute of West-minister, 3 Ed. 1 c. 15 (1275). Both grand larceny and petty larceny were felonies but the punishment for petit larceny was less severe. The punishment for grand larceny was death and forfeiture of goods, subject to benefit of clergy. The punishment for petit larceny was forfeiture of goods and whipping, or some corporal punishment less than death. 1 Hale, Pleas of the Crown 530. Under the statute theft was grand larceny where the value of the property exceeded 13 pence, and petit larceny where the value was 13 pence or less. In Maryland, although larceny is not specifically designated by statute as grand or petit, there is a statutory dividing line between felonious and non-felonious larceny. The theft of goods to the value of $100 or upwards is a felony, Code, supra, Art. 27, § 341, commonly referred to as grand larceny, and the theft of goods under the value of $J00 is a misdemeanor, § 342, commonly referred to as petty larceny. Prior to the Acts of 1952, chapter IS, the dividing line was $25.

      . Of the goods alleged to have been stolen, the proof as to ownership and identity of the goods was sufficient only with regard to the “one real of 4/0 electrical wire,” valued at $60 or $70. On a charge of petty larceny if it appears that the goods were of some value, a specific allegation of value need not be sustained as not material to the charge. Hochheimer, supra, § 716, pp. 432-433. (For necessity of proof of value as to grand larceny see Wilkins v. State, 4 Md. App. 334 and Lehr v. State, 2 Md. App. 776.) We think the evidence properly enabled the court to find that this wire was that found outside the storehouse by the broken door. Appellants do not contend on appeal that it was not the goods so described in the indictment and while it was not physically introduced in evidence there was no objection to the testimony describing it. There was no evidence as to the “fifteen feet of T-W 12 gauge wire” valued at $2. Although there was testimony that an inventory disclosed goods described as “some copper tubing” (with no other specificity) was missing, the value of which was unknown to the witness, there was no evidence of ownership of the tubing other than a general statement that the contents of the storehouse “belonged to the Carroll-James Company and the Carroll Electric Company,” the contents being described at one point in the witness’ testimony as “refrigeration compressors, copper wires, boxes, some lighting fixtures, some refrigerators.” We do not believe the evidence was sufficient to identify the tubing alleged to have been stolen or its ownership. “Indictments for larceny and the like are sustained by proof of taking any part of the goods or money averred, provided the punishment is the same, whether more or less is taken.” Hochheimer, supra, § 263, p. 167. See 32 Am. Jur., Larceny, § 146, p. 1059. Even though there was testimony that the storehouse was rented by C. & J. Refrigeration and Air Conditioning Company, Inc., under its trade name as Carroll-James, there was no direct evidence that it had possession of the goods and we do not think that a rational inference could be drawn, in the circumstances here, that it had exclusive possession.

      . For a sufficient statement in an indictment as to ownership or possession of property by partners, joint tenants, parceners, tenants in common or trustees, see Md. Code, supra, Art. 27, § 605. The statute is not applicable to the instant case.

      . The Court of Appeals said in Warren at 133, “And although it is necessary to set out in the indictment the ownership of the property, this the law requires in order that the prisoner may be informed as to the precise nature of the offense charged against him; and further, to enable him to plead a former conviction or acquittal, in bar of a subsequent prosecution for the same offense.” It reversed a judgment of the lower court sustaining a demurrer and quashing an indictment containing two counts, in each of which the accused was charged with stealing several sums of money at the same time, belonging to several owners, on the ground of duplicity. The Court of Appeals held that the indictment was proper as the stealing was but one offense. Although it is not clear from the opinion, the record of the case, No. 71, Criminals, November Term, 1893, in the Circuit Court for Montgomery County, discloses that in both counts of the indictment the ownership of each article was separately stated.

      . But if the breaking is with intent to steal personal goods it provides that such goods shall be those “of another.”

      . Code, supra, Art. 27, § 30(a) designates the crime thereby proscribed (breaking and entering of a dwelling in the nighttime with intent to steal goods of another of any value) as burglary. The offense proscribed by § 30(b) (the breaking of a dwelling house in the daytime with intent to commit murder or felony or steal goods of another of any value), by § 32 (breaking a storehouse in the day or night with intent to commit murder or a felony or to steal goods of another of the value of $100 or upwards), by § 342 (breaking a storehouse with intent to steal goods under the value of $100 or breaking a storehouse and stealing goods under the value of $5), and by § 33 (breaking a storehouse and stealing goods of the value of $5 or upwards) are not designated as burglary but are commonly referred to as statutory burglary.