DeHart v. State

²⁴¹ Per Curiam. The appellant, Robert Edward DePIart, was found guilty of burglary of the Park Lunch Restaurant, with Paul John Heilman and John Joseph Hunt, at a joint trial in which all three defendants were represented by the same trial counsel, in the Criminal Court of Baltimore City, by Chief Judge Niles, sitting without a jury. He makes two contentions: (1) that there was not sufficient corroboration of the testimony of an accomplice in order to sustain the conviction; and (2) that the trial court erred in ruling that the oral statements made by the codefendants were admissible. The appellee moved to dismiss the appeal upon the claim that the appellant had not printed in his appendix enough of the testimony to present the question of the sufficiency of corroboration properly for decision by this Court under Maryland Rule 828 b.

Dismissal is discretionary with this Court and not mandatory. The same factors are present here as in Gray v. State, 224 Md. 308 , 167 A. 2d 865 , and Brown v. Fraley, 222 Md. 480 , 161 A. 2d 128—’that the omission was not due to any deliberate intent to violate or evade the rule, and that the omissions have been supplied pursuant to Rule 828 f—and we accordingly deny the motion. We find no merit in either contention. Elmer Scaggs, age 15, one of the participants involved, testified that prior to the commission of the burglary the appellant was in company with Scaggs, Heilman and Hunt in appellant’s apartment over the premises which were burglarized; that the appellant as part of the plan for the burglary sent him, Scaggs, onto the street to get a police officer to check the premises to find out whether or not any one was inside; that he, in company with Heilman, later went downstairs to rob the premises while the appellant and Hunt were acting as look outs in the appellant’s apartment upstairs.

A crowbar and screw driver were identified by Scaggs as the implements used in the perpetration of the burglary and introduced in evidence. These implements were identified by Sergeant Serra, of the Baltimore City Police, as having been found after the burglary in appellant’s apartment. The sergeant also identified two pairs of ²⁴²