Kyle v. State

PpR Curiam. The appellant went to trial before a jury in the Circuit Court for Montgomery County on 18 October 1966 under three indictments charging robbery with a deadly weapon (No.7708), burglary (No.7709), and assault and battery (No.7707). The docket entries state that on the same day the jury was withdrawn and the court declared a mistrial. He came on for trial again before a jury on 24 October 1967 and was convicted of robbery with a deadly weapon on which a 12 year sentence was imposed and burglary on which a 12 year concurrent sentence was imposed.

On appeal he first claims error in the denial of his motions for judgment of acquittal made at the close of all the evidence on the ground that he was placed in jeopardy at his first trial as to the crimes of which he was convicted at his second trial. 1 The appellant claims that he had been previously ¹⁶¹ brought to trial on 18 October 1966, on the offenses of which he was convicted at a subsequent trial on 25 October 1967 and that at the first trial after the jury had been sworn and witnesses testified a mistrial was granted at the instance of the court, not “by any action of the defendant nor at his asking.” The record before us does not disclose the reasons for the grant of the mistrial. The docket entries as to Nos.7708 and 7709 Criminal state, “Transcript of record dated October 18, 1966, filed in No.7707 Criminal,” but the record of No.7707 Criminal is not included in the record before us. It is clear, however, that no verdicts were rendered at the first trial and the present status of the law in Maryland, following the common law, is that no man is in jeopardy until verdict is rendered. Boone v. State, 3 Md. App. 11, 23-28 .

Thus the appellant was not placed ¹⁶² twice in jeopardy by his second trial. 2 Assuming that the point was properly raised by the motion for judgment of acquittal, we find no error in its denial. The appellant also contends that there was a variance between the atlegata of the robbery with a deadly weapon and the probata in that the indictment alleged that the money stolen by robbing Barney Kruglak was the property of Barney Kruglak and Martha L. Kruglak while the evidence was that it was the property of a corporation—“store money.” It has been consistently held that it is not necessary to allege ownership of property stolen in a robbery and since it is not necessary to allege it, proof of ownership is not required. Harrison v. State, 3 Md. App. 148 . It is required that the victim be the owner or have a legal interest or special property in what was stolen as for example be in “lawful possession as bailee.” Hartley v. State, 4 Md. App. 450 ; McMillan v. State, 3 Md. App. 699 .

The evidence here was sufficient for the jury to find that Barney Kruglak was the lawful possessor of the money whether it belonged to him, or to him and his wife, Martha Kruglak, or to a corporation under which they operated their store. The appellant was one of three robbers. He and another had pistols and the third a