Ballard v. State

Horney, J., delivered the opinion of the Court. Robert Ballard and Glenn Lewis were jointly charged in a three-count indictment with the larceny, receiving and unauthorized use of an automobile. Lewis pled guilty to the unauthorized use of it, and Ballard was convicted of the larceny thereof on the uncorroborated testimony of Lewis. The critical ■question presented on this appeal is whether Lewis was an ac"complice of Ballard.

Lewis testified that while visiting Ballard in June 1963, he was shown an automobile. He had not seen it before. Although he had known Ballard for five years, he had never owned a ¡motor vehicle. When Lewis inquired where Ballard got the vehicle, he did not reply.

They went for a ride. The ignition was 'unlocked, but there was no key in it, and Lewis did not question the absence of a key. Upon their return, the automobile was parked about a block away from where Ballard resided. Shortly afterwards, Lewis, having asked Ballard (while he was looking at television) for permission to borrow the vehicle and receiving no reply, went out, got in the automobile, started the motor without a key as he had seen Ballard do, and drove to Salisbury., where the automobile broke down.

Both were sub ⁵⁸¹ sequently arrested. While they were incarcerated, Ballard told Lewis that he was a fool for keeping the vehicle so long. On cross-examination, Lewis admitted that he had previously said that some boys he had met gave him the automobile. At the conclusion of the State’s case, Ballard moved for a judgment of acquittal, but this was denied.

He called no witnesses in his behalf and he chose not to testify. The lower court found him guilty of larceny under the first count. The motion for judgment of acquittal was based on the theory that the codefendant Lewis was an accomplice and that there was no corroboration of his testimony. In denying the motion, the lower court stated that there was “some corroboration” in that the automobile was found in Salisbury.

The defendant, citing Mulcahy v. State, 221 Md. 413 , 158 A. 2d 80 (1960), contends that this was not corroboration of a material fact tending to show that the defendant was identified with or had participated in the larceny, and we agree. Whether or not Lewis (who pled guilty of unauthorized use) was an accomplice of Ballard would seem to depend on whether Lewis could have been punished for the crime of larceny for which both were indicted. We think he could not. An accomplice is one “who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of a crime” or “unlawfully co-operates,