HARRIDAY & GAITHER v. State

Sybert, J., delivered the opinion of the Court. The appellants, Sterling J. Harriday and Clarence Gaither, and two co-defendants not involved in this appeal, were found guilty by the Circuit Court for Baltimore County, in a non-jury trial, of the larceny of a cigarette vending machine from a gasoline service station. Appellants contend that the judgment entered against them should be reversed on the ground that the chief State’s witness, Wayne Hebron, was an accomplice in the crime and that their conviction resulted solely from his uncorroborated testimony. Both appellants were represented by counsel below. ⁵⁹⁶ Hebron, who was the sole witness to the larceny, was not charged or indicted in connection with it.

However, his testimony leaves little doubt that he himself was involved in the offense. On the basis of the evidence before him, the trial judge was of the opinion that Hebron at most was the receiver of part of the proceeds of the theft and not an accomplice in its actual commission. In a case tried by the court we may review upon both the law and the evidence and will set aside the verdict of the trial court on the evidence only when it is clearly erroneous. Dunn v. State, 226 Md. 463, 174 A. 2d 185 (1961); Maryland Rule 741 c (1958 ed.).

In order for Hebron to be considered an accomplice, the evidence must show that he participated in the perpetration of the crime “knowingly, voluntarily, and with common intent” with the principal offender, or unlawfully cooperated, aided or abetted in its commission. Coleman v. State, 209 Md. 379 , 121 A. 2d 254 (1956); 2 Wharton, Criminal Evidence (12th ed.), §§ 448 et seq. The test commonly applied as to whether a witness is an accomplice is whether he himself could have been indicted and punished for the offense, either as a principal or as an accessory. Coleman v. State, supra; Watson v. State, 208 Md. 210 , 117 A. 2d 549 (1955).

While Hebron’s testimony was at times unclear and even somewhat contradictory, it does establish that he had been with some of the defendants earlier in the day, that he had been at the scene of the crime and had observed the defendants approaching the station, and that when he saw them leave the station with the machine he “came out with them, came on out and I seen who it was so I went with them.” He testified that he carried a club for one of the appellants, Harriday, so that the latter could help carry the machine to a wooded area, where it was broken open in Hebron’s presence. He accepted an equal share of the money it contained plus two packs of cigarettes. In our opinion, even if Hebron could not be considered a principal in the crime, certainly in view of his actions during the perpetration of the larceny—of which the asportation was a component part—he comes within the definition of an aider, that is, “one who assists, supports or supplements the ⁵⁹⁷ efforts of another”. Coleman v. State, supra.

As such, he would fall within the legal definition of an accomplice. Hebron, at the time of the crime, was seventeen years of age and thus subject to the juvenile delinquency law. The question was raised at oral argument as to whether a juvenile can be an accomplice when he can’t be charged with the substantive crime unless the juvenile court waives jurisdiction. In several recent cases this Court has had occasion to decide whether a juvenile witness was an accomplice.

See, for example, Coleman v. State, supra; Gregoire v. State, 211 Md. 514 , 128 A. 2d 243 (1957); and Saldiveri v. State, 217 Md. 412 , 143 A. 2d 70 (1958). In those cases the findings that the juveniles were not accomplices turned on all the circumstances of the case and particularly on the matter of lack of consent, with minority being merely another factor to consider. The Court did not look upon the juvenile status as controlling in determining whether the child was an accomplice despite the fact that in the Coleman case, for example, the minor witness had already been charged with being a juvenile delinquent as a result of the crime in regard to which she was testifying for the State. In the Gregoire case, we cited (at 520-521) People v. Knorr, 118 N. Y. S. 2d 429 (1953), which flatly held that the fact that a. nine year old child, who was a willing participant in the crime-of sodomy and carnal abuse, could only be charged as a. juvenile delinquent would not preclude a finding that he was-an accomplice.

Other cases are cited and discussed in Gregoire involving the question of a minor accomplice, and the essential! factor in all of them was that of consent or its lack, and not juvenile status. The reason for the corroboration rule in regard to an accomplice’s testimony is not overcome in this case by the mere fact that Hebron is, under normal circumstances, subject only to the jurisdiction of the juvenile court. As a witness involved in the offense, he could be swayed by motivations typical for any accomplice, i.e., malice in making the accusation, or the desire to shield himself from possible punishment from any source and the seeking of possible