Hamilton v. State

Moylan, J., delivered the opinion of the Court. The appellants, George Arthur Hamilton and John Francis Fletcher, were indicted by the Grand Jury for Prince George’s County under Indictment No. 8481 for grand larceny. They, along with a co-defendant, Benjamin Ignatius Nichols, were convicted of grand larceny by a jury on January 10, 1969. This Court on November 19, 1969, in Fletcher, a/k/a Stewart, Nichols and Hamilton v. State, 8 Md. App. 153 , reversed those convictions and remanded the case for a new trial for the reason that the so-called “Allen Charge” had been given to the jury prematurely.

The case was retried before a jury, presided over by Judge Samuel J. DeBlasis, on March 2 and 3, 1970. The jury found both appellants, along with the co-defendant Benjamin Ignatius Nichols, guilty of grand larceny. On April 28, 1970, the appellant Fletcher was sentenced to a term of ten years imprisonment. The appellant Hamilton was sentenced to a term of eight years imprisonment.

Each appellant has filed a separate appeal. Between the two appeals, three contentions are raised: (1) That there was a fatal variance between the indictment charging larceny from an unincorporated business and the proof establishing larceny from a corporation; (2) That the “continuing larceny” theory of Worthington v. State, 58 Md. 403 , relied upon by the State in ⁹³ this case, violated the appellants’ right to be free from double jeopardy; and (3) That the trial judge improperly instructed the jury. The grand larceny of which the appellants were here convicted arose out of an armed bank robbery perpetrated by these appellants and two others upon the Highland’s Branch of the National Capital Bank of Washington on October 22, 1968. The branch was located in the District of Columbia.

The armed robbery occurred at approximately 1 p.m. The appellant Fletcher was identified as having participated in that holdup. A red automobile bearing Maryland license tags DY 6318 was identified as leaving the scene shortly after the robbery occurred. Approximately thirty minutes later, as a result of police radio broadcasts, a red automobile bearing Maryland license tags DY 6318 was halted by a police roadblock near Randolph Village in Prince George’s County.

A number of gunshots were exchanged between the police and the occupants of the automobile. The appellants Hamilton and Fletcher were occupying the automobile at the time it was stopped, along with their co-defendant Nichols. Eighteen thousand dollars was recovered from the vehicle. An additional $19,000 was recovered from the person of the appellant Fletcher.

The victim of the grand larceny was initially named in the indictment as “National Capital Bank of Washington, a body corporate.” On January 10, 1969, at the first trial of the appellants, the State’s Attorney moved to have the indictment amended by striking out the words “a body corporate.” That motion was granted. At the second trial, here being appealed from, the testimony of Paul M. Bennett, the Assistant Vice-President of the National Capital Bank of Washington and the manager of the Highland’s Branch thereof, had been that the National Capital Bank of Washington is a corporation operating under the laws of the United States. At the earlier trial, it had been the testimony of Mr. Bennett which had led to the amendment of the indict ⁹⁴ ment. Upon cross-examination at the second trial, Mr. Bennett explained his testimony at the first trial which had led to whatever confusion resulted: “Q. It was obviously your opinion at that time that that was not a corporation, is that correct?

A. They asked me the question about National Capital Bank of Washington, D. C. Incorporated. That is not our title. That is what it pertained to. Q. The question is, Ts this National Capital Bank of Washington, is this a corporation?’ and your answer is, ‘No, it’s not a corporation.’ Do you recall that series of questions and those answers given?

A. Yes, sir. Q. So was it not your opinion at that time that it was not a corporation ? A. My opinion — that corporation name as we use it, Inc. is not at the end of the name of the bank, sir. That is what I was trying to do.

Q. So contrary to what was stated it was your opinion at that time that your organization was a corporation? A. We pay taxes and everything under a corporation.” The line of cases relied upon by the appellant Fletcher to establish a fatal variance between the allegata and the probata is not apposite to the situation at bar. In Richardson v. State,. 221 Md. 85 , Byrd v. State, 229 Md. 148 , and Stackhouse v. State, 1 Md. App. 399 , the fact of incorporation had been alleged in the indictments and the evidence, though scant, was held to be sufficient to prove the allegation. In Sippio v. State, 227 Md. 449 , and Paesch v. State, 2 Md. App. 746 , similar allegations of incorporation had been made in the indictments, but proof to substantiate the allegations was utterly lacking.

The common theme running through all of those cases is that “when ownership is claimed to be in a corporation, the ⁹⁵ claim must be supported by the evidence.” Richardson v. State, supra, at 88. In State v. King, 95 Md. 125, at 128 , the Court of Appeals explained the requirements for adequately naming a larceny victim: “The reason of the rule requiring the allegation of ownership in indictments for this crime is that the Court must be able to determine judicially that the property alleged to have been stolen was the property of another and not the property of the accused, and it is therefore essentially descriptive of the crime charged. A further reason is that the accused is entitled to be informed of the exact accusation against him.” In the case before us, the Vice-President of the victimized bank explained fully that the proper style for the name of his bank in the District of Columbia is “National Capital Bank of Washington,” without any suffix whatsoever denoting incorporation. The name given for the victim bank in the amended indictment corresponded precisely to the formal, legal title of that bank, in fact.

The name of the victim bank was properly styled. The proof established clearly that the bank was incorporated. The appellant Fletcher was fully apprised of the crime he was called upon to defend. No conceivable