Hyman v. State

Murphy, C. J., delivered the opinion of the Court. ⁶³⁹ Appellant was charged in a six-count indictment in the Criminal Court of Baltimore with (1) breaking the storehouse of Robert Peltzer on July 21, 1967 with intent to steal goods of the value of $100.00 or more, (2) with breaking said storehouse with intent to steal goods of a value less than $100.00, (3) with breaking said storehouse and stealing certain goods of a value of $5.00 or upwards, said goods being expressly particularized in such count to include a number of guns identified by serial number, ammunition, and other items, (4) with being a rogue and vagabond, (5) with grand larceny of the items specified in the third count of the indictment, and (6) with receiving the particularized stolen goods. One of the guns specified as having been stolen was a “PIC Serial % 125559” of the value of $10.50. The owner of the victimized premises did not appear at the trial, his testimony being the subject of a stipulation that if he were to testify he would state that his store was broken into on July 21, 1967 and that “various guns” were stolen therefrom,, amounting in value, collectively, to over $100.00, and that a .22 caliber revolver, Serial % 125559, was registered in his name.. It was not stipulated that this gun was taken in the burglary.

Officer William Stanley of the Baltimore City Police Department testified that on August 5, 1967, he responded to a call to> a home in Baltimore City, at which time he observed the appellant “sitting in a living room chair with a gun in his hand.” The officer testified that he placed appellant under arrest and forwarded the gun to the crime laboratory. After testifying that “records” are kept at the crime laboratory, and that there is a Departmental “offense report” of the crime, the officer was, asked on direct examination: “As the result of your investigation, what did you then learn from these records ?” The officer answered: “After receiving certain information from the crime lab and checking our records, we found this gun was taken in a burglary that occurred at Peltzer’s gun store.” Appellant objected to the officer’s answer after it was given, specifying no reason for his objection. The court overruled the ⁶⁴⁰ •objection, following which the officer further testified, without objection, that “these are part of the records of the Baltimore •City Police Department”; and that the offense report showed that Peltzer reported the burglary in question, indicating at that time that a .22 caliber pistol, Serial % 125559, was stolen. The gun was then introduced in evidence over appellant’s gen-oral objection.

The State introduced no other evidence relating to appellant’s guilt. The court, sitting without a jury, granted appellant’s motion for a judgment of acquittal as to all •counts of the indictment except the third, which charged him with breaking and stealing goods of the value of $5.00 or upwards under Section 33 of Article 27 of the Maryland Code (1967 Repl. Vol.). 1 Appellant was then sentenced to ten years under the jurisdiction of the Department of Correction. Appellant contends on this appeal that the trial court erred in admitting into evidence Officer Stanley’s testimony “as to the Police Department records concerning the gun taken from ■appellant at the time of his arrest whereby the officer testified that it was the same gun that, according to Police Department records, had been taken in the storehousebreaking and entering, which records were not placed in evidence, thereby resulting in prejudicial error.” In brief, appellant asserts that Officer Stanley’s testimony was hearsay and should not have been admitted in evidence.

He asserts that he was in no way connected with the •crime by the stipulation since it did not include any agreement that the gun was taken in the burglary. As his possession of the weapon constituted his sole connection with the crime, appellant urges that the admission of the hearsay evidence was necessarily prejudicial. He maintains that while the police report may have been admissible in evidence as a business record under Section 59 of Article 35 of the Maryland Code, it was not introduced in evidence, so that the information therein contained •could in no event have been properly admissible at the trial. ⁶⁴¹ The appellant also contends that the admission of the gun itself into evidence was likewise error. The State contends that as Officer Stanley was testifying or reading from the Police Department records, his testimony was tantamount to the introduction of the record in evidence, and that as Section 59 “does not limit or restrict the manner in which these records may be admissible,” the officer’s testimony given from and based upon the police records was properly admissible, there being no requirement that the record itself be introduced in evidence.

While not entirely clear from the record, it appears that Officer Stanley did not have any part in the preparation of the Departmental offense report concerning the Peltzer burglary, nor did he, when testifying, have any personal