Coleman v. State

Collins, J., delivered the opinion of the Court. This is an appeal by William A. Coleman, appellant, from a judgment and sentence, of the trial court sitting without a jury, for breaking and entering the store of Consumers Buying Association, Inc., (Consumers), with intent feloniously to steal certain property therein, in Glen Burnie, Anne Arundel County. The facts of the case are substantially as follows. Bobert W. Griffith, a police officer, testified that about ³⁸² 1:30 A. M. on April 7, 1955, he observed a truck proceeding the wrong way on a one way street in Glen Burnie.

He waved to the truck to stop and the driver of the truck tried unsuccessfully to pin him between his car and the truck. The truck then proceeded at a fast rate of speed on that “dead end” street. When the “dead end” was reached four persons jumped out of the truck and ran through the woods. The truck contained five television sets, three portable record players, two portable radios, one table model radio and a lady’s brown suitcase.

He called a number of police cars to assist him in finding the four people who jumped out of the truck. About a half hour later Loretta Cox, and about three-quarters of an hour later Robert Dellavox, were both picked up in the vicinity. Officer Griffith could identify only one occupant of the truck at the time it passed him, that being Harry Myers. Mr. Morton Forman, an employee of Consumers, testified that the store was closed about 6 P. M. on April 6, 1955.

He returned to the store the following morning about 8:45 A. M. and noticed that articles were missing and there were marks at the edge of the rear door. He later went to the Ferndale Police Station where he identified the articles which had been found in the truck by Officer Griffith as the property of Consumers. Loretta Cox, sixteen years of age at the time the crime was committed and seventeen at the time of the trial below on August 26, 1955, testified that she knew Harry Myers and William A. Coleman, the appellant. At about 11 P. M. on April 6, 1955, she was on Linden Avenue in Baltimore.

Myers, Coleman and Dellavox drove up in a truck and asked her to go for a ride. She had known these boys previously. They drove around for a short time and they then drove to Glen Burnie. They parked the truck back of a store and the boys went in and brought out some coffee.

They talked there together about twenty minutes. Robert Dellavox remained in the truck with her. Myers and Coleman got out and brought back boxes which they put in the back of the truck. She found out ³⁸³ later that these contained television sets.

She did not do anything. She could not carry the boxes. When asked whether she knew what they were doing when they left the truck, she replied: “I didn’t know for sure, but after I heard the crash and saw them come back * * * They broke in. * * * Well, I went back later, it was a window or a door.” When asked “Had there been any discussion between you and either of these boys, or any of the boys among themselves in your presence before they left you in the truck?”, she replied: “They'were talking about televisions, but I didn’t hear anything special.” After the boxes were placed in the truck they drove off. As they were driving the wrong way on the street the officer told them to stop.

Myers, who was driving the truck, put on speed. She was on the front seat with Coleman and Myers and Dellavox was in the rear. “The truck must have wrecked or something. We jumped out and started running.” She was picked up by the police about forty-five minutes later. On cross examination, when asked what she was tried for in Anne Arundel County, she stated: “breaking and entering.” She said she did not plead guilty.

She admitted that she did not like Coleman very much. “He was rotten to me after this mess.” She later said that she was not formally charged with any crime but was tried in the Juvenile Court in Anne Arundel County for being a delinquent child. She had never been tried in any court other than the Juvenile Court in Anne Arundel County. Officer Griffith, when recalled, testified that she was never charged with any crime but was tried in the Juvenile Court. There is nothing in the record here to show that she was ever tried for breaking and entry or what disposition was made of the case in the Juvenile Court.

The appellant contends that there was not sufficient evidence to convict him because he was convicted solely as the result of the uncorroborated testimony of Loretta Cox, an accomplice to the crime charged against him. The State admits in this case that the only evidence against the appellant was that of Loretta Cox. ³⁸⁴ Of course, unless there is some testimony to corroborate an accomplice, the law does not permit a conviction to stand. Lanasa v. State, 109 Md. 602, 613 , 71 A. 1058 ; Luery v. State, 116 Md. 284 , 81 A. 681 ; Wolf v. State, 143 Md. 489, 504 , 122 A. 641 ; Folb v. State, 169 Md. 209, 211 , 181 A. 225 ; Myerson v. State, 181 Md. 105, 112 , 28 A. 2d 833 ; Juratovac v. State, 193 Md. 561, 564 , 69 A. 2d 247 ; Watson v. State, 208 Md. 210, 217 , 117 A. 2d 549, 552 . The primary question before the trial judge was whether Loretta Cox was an accomplice of the appellant.

The crime for which the appellant was convicted, Code, 1951, Article 27, Section 38, statutory burglary, is a misdemeanor. Bowser v. State, 136 Md. 342 , 110 A. 854 ; Hickman v. Brady, 188 Md. 103 , 52 A. 2d 72 ; State ex rel. Zukowski v. Warden, 193 Md. 721 , 68 A. 2d 675 ; Debinski v. State, 194 Md. 355 , 71 A. 2d 460 . The offense for which the appellant here was convicted being a misdemeanor, all accessories were chargeable as principals.

Roddy v. Finnegan, 43 Md. 490, 503, 504 ; Seward v. State, 208 Md. 341 , 118 A. 2d 505 . In the case of Anello v. State, 201 Md. 164 , 93 A. 2d 71 , the appellant was convicted of larceny of use of property which was a misdemeanor. It was there said: “It is clear that no one, whether principal perpetrator or aider or abettor, can violate this statute unless he possesses criminal intent. The legal definition of the word ‘aider’ is not different from its meaning in common parlance.

It means one who assists, supports or supplements the efforts of another. The word ‘abettor’ means in law one who instigates, advises or encourages the commission of a crime. Thus the word ‘abet’ may import that one is present at the commission of a crime without giving active assistance. Creasy v. Commonwealth, 166 Va. 721 , 186 S. E. 63 ; State v. Epps, 213 N. C. 709 , 197 S. E. 580 ; State ex rel.

Martin v. Tally, 102 Ala. 25 , 15 So. 722 , 737; State v. Western Union Telegraph Co., 13 N. J. Super. 172, 80 A. 2d 342, 355 . * * * To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essen ³⁸⁵ tial that one should in some way advocate or encourage the commission of the crime. McKinney v. Commonwealth, 284 Ky. 16 , 143 S. W. 2d 745 .” In State ex rel. Wisconsin Development Authority v. Dammann, 228 Wis. 147 , 277 N. W. 278 , 280 N. W. 698 , it was held by the Supreme Court of Wisconsin that the word “encourage” had no technical meaning. The cases of United States v. Strong, (D. C.), 263 F. 789 , and United States v. Ault, (D. C.), 263 F. 800, 811 , adopted Webster’s definition of “encourage” to mean “giving courage to; inspiring with courage, spirit, or hope.” Seward v. State, supra, and cases there cited.

It is stated in 2 Wharton, Criminal Evidence, 229, Sec. 448, et seq. (12th Ed.) : “An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime. The term ‘accomplice’ does not include a person who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related but distinct offense. To constitute one an accomplice, he must perform some act or take some part in the commission of the crime or owe some duty to the person in danger that makes it incumbent on him to prevent its commission.

An accomplice is ‘one culpably implicated in, or who unlawfully co-operates, aids, abets, or insists in, the commission of the crime charged.’ “The generally accepted test as to whether a witness is an accomplice is whether he himself could have been convicted for the offense, either as principal or accessory.” In Anello v. State, supra, the accused was convicted of unlawfully carrying away a Cadillac automobile out of the