Hardesty v. State

Prescott, J., delivered the opinion of the Court. The appellant pleaded not guilty, in the Criminal Court of Baltimore, to a five-count indictment. The first count charged him with breaking and entering a storehouse with intent to commit a felony (grand larceny) therein; the second with being a rogue and vagabond; the third with grand larceny of certain particular items of property; the fourth with receiving stolen goods (the same property alleged to have been stolen in count three) ; and the fifth with breaking into the storehouse and stealing money, goods and chattels of the value of more than one dollar (the same property as that referred to in counts three and four). The trial judge, sitting without a jury, found the defendant “guilty.” The appellant makes three principal contentions: (1) that there was no evidence adduced by the State to establish the charge in the count relating to his being a rogue and vagabond; (2) that the indictment contained inconsistent counts, consequently the court should have rendered a verdict on each count, instead of a general verdict of guilty; and (3) that his sentence was cruel and unusual.

I A reading of the evidence discloses the first contention of the appellant to be sound. The State produced no proof that would form a proper basis for his conviction on the count that charged him with being a rogue and vagabond; hence, the judgment, insofar as it relates to count 2, must be reversed and the case remanded for the entry of an order striking out ⁵⁶² the judgment and sentence, insofar as it relates to this count. Maryland Rule 741 (c); Young v. State, 220 Md. 95, 100-101 , 151 A. 2d 140 . II This leaves us with a four-count indictment, upon which there is a general verdict of guilty.

Obviously, the indictment contains inconsistent counts; as this Court has squarely held that one cannot be a thief and, at the same time, guilty of “receiving” the identical property that he has stolen. Heinze v. State, 184 Md. 613, 617 , 42 A. 2d 128 , and cases therein cited. There can be little doubt that the proper practice calls for a specific verdict upon each count of an indictment that contains inconsistent counts, unless a general verdict of “not guilty” be rendered. In fact, the State rightly concedes that a general verdict of “guilty” upon such an indictment is defective, and the defendant may require the trier of facts—-in this case, the trial judge—to specify on which counts the defendant has been found guilty.

However, the State contends that this is a right that may be, and in this case has been, waived, since the question was not raised in the trial court. We passed directly on the question in a recent case, and sustained the position taken by the State. Bell v. State, 220 Md. 75 , 150 A. 2d 908 . See also Novak v. State, 139 Md. 538, 541-542 , 115 A. 853 , and compare Heinze v. State, 184 Md. 613 , 42 A. 2d 128 .

In the instant case, the trial judge imposed but one sentence, which is below the maximum permitted by any one of the four counts now under consideration;