Brown v. State

Anderson, J., delivered the opinion of the Court. The appellants, James Anthony Brown and Carl Shepard, Jr., were convicted by Judge Meyer M. Cardin, sitting without a jury, in the Criminal Court of Baltimore, of the crimes of obtaining money by false pretenses and common law assault. Each was sentenced to concurrent terms of eighteen months and three years, respectively, under the jurisdiction of the Department of Correction. Appellant Brown was also convicted of the crime of petit larceny and was sentenced to eighteen months, concurrent, under the jurisdiction of the Department of Correction.

On this appeal appellant Brown contends that the evidence was insufficient to convict him of the crimes of obtaining money by false pretenses, common law assault, and petit larceny. Appellant Shepard contends that the evidence was insufficient to convict him of common law assault. 1 I LARCENY AND FALSE PRETENSES— APPELLANT BROWN The object of the larceny and the item involved in obtaining ⁶³⁴ money by false pretenses was a check of the Treasurer of the United States, No. 94370099, dated March 7, 1968, payable to James Jackson, 1518 N. Washington Street, Baltimore, Md., in the sum of $24.00, and indorsed “James Jackson.” On the check was the printed notation, “tax refund.” This check was introduced at trial as State’s Exhibit 1. James Jackson testified that he lived at 1518 N. Washington Street, in Baltimore, Maryland, and that he had filed an income tax return and an application for a refund. He stated that he had a mail box where his mail was delivered but that he never received his refund check which should have been delivered on March 8th.

He further testified that he first saw the check on March 28th when it was shown him by a police officer and that the indorsement on the back of the check in question was not his signature. William E. Dorsey testified that he was the manager of the J. J. Denline Cut Rate Liquor Store, and that on March 8, 1968 appellants Brown and Shepard entered the store. Brown, who represented himself as “Jackson”, stated that he wanted the check (State’s Exhibit 1) cashed and that it was his tax refund. Although the check was indorsed when Brown brought it in, Mr. Dorsey was unwilling to cash it without sufficient identification from Brown.

Brown stated that he had lost his wallet and had no identification. Mr. Dorsey, who knew Shepard, stated that if Shepard would co-sign the check, he (Dorsey) would cash it. Shepard said he knew Jackson, that the check was Jackson’s, and that he would co-sign it. Brown attempted to indorse the check but was too intoxicated to complete it, and Shepard indorsed the check in the name of Jackson and then co-indorsed his own name thereon.

Mr. Dorsey then cashed the check, took out for a half pint of whiskey, and gave Brown $21.75 in cash. Appellant Brown testified that he spent the night of March 7, 1968 in an apartment on the first floor of the house at 1518 N. Washington Street. James Jackson lived in the second floor apartment of that building. The appellant (Brown) stated that at 9:00 a.m. the following morning, March 8, “. . . a boy came in and we got to drinking, having a party so to say.

And about 11 o’clock another guy came in and picked a check up out of the hall and brought it in the house with him when he came in. ⁶³⁵ He thought it belonged to somebody in the apartment. The boy that the house belonged to took the check upstairs to the boy James Jackson but he wasn’t home so he brought it back. To keep it for him until he came home. As we were sitting there drinking everybody got drunk.

I guess about drunk. The boy that lives in the house said that he was leaving and gave me the check to give to Jackson when he came home. After we got drunk, the next thing I know I was in the cut-rate with the check.” He also stated that he was drunk at the time he was in the liquor store and that he did not tell Mr. Dorsey anything but merely handed him the envelope with the check in it. Appellant Brown contends that the evidence showed that he was too intoxicated to possess the requisite intent to commit the two crimes, and was thus insufficient to sustain the convictions.

This Court has stated that: “Where a particular motive, intent or purpose is an essential element of a crime, drunkenness may be considered in determining whether or not the accused lacked the mental capacity to form the requisite motive, intent, or purpose, and if a sufficient mental incapacity is found to exist drunkenness may constitute a defense to the particular offense charged.” Michael v. State, 1 Md. App. 243, 247 (1967). See also Johnson v. State, 5 Md. App. 540 (1968). We went on to say, however, that: “He must persuade the triers of fact that, under the circumstances, he was so intoxicated as to be incapable of entertaining the specific mental intent or of possessing the mental state which is an essential element of the crime for which he is being prosecuted.” Michael v. State, supra at 248. The trial judge was not required to believe appellant’s assertion that the next thing he remembered after receiving possession of the check was being in the liquor store.

Johnson v. State, supra at 544. Appellant could recollect everything that took ⁶³⁶ place prior to his trip to the liquor store as well as what took place at his mother’s home later that afternoon. Moreover, he had sufficient mental capacity to realize that before the check could be cashed it must be indorsed, and therefore he and his co-defendant Shepard appeared at the store with the forged indorsement already on the check. There he represented himself to the manager as James Jackson, that the check was his tax refund, and that he was unable to produce identification because he had lost his wallet.

While he appeared to be too intoxicated to indorse the check again in the store, the trial court could well have found that he had sufficient mental capacity to form the requisite intent required to commit the crimes of which