Mason v. State

Murphy, C. J., delivered the opinion of the Court. Appellant was convicted on May 28, 1968 by the court sitting without a jury of storehouse breaking and grand larceny and sentenced to five years under the jurisdiction of the Department of Correction. He contends on this appeal that certain actions of the prosecutor at the trial were such as denied him “fundamental fairness.” The evidence showed that Stevens, Inc., a hardware concern in Annapolis, was broken into at approximately 11:55 p.m. on September 29, 1967 and a television set valued at $189.95 was stolen from the display window. Oliver Miller testified for the State that he was about 100 yards from the store when he heard glass breaking and immediately thereafter saw two Negro men running away from the store.

Miller went to the store where he saw that one of the two men he bad just seen running was still in the area. He observed this man remove his jacket, which he described as light in color, “yellow, beige or white,” and give it to another man, who then left. Miller admitted that he did not see the face of the man who took off the jacket but that this man was shortly thereafter arrested by the police. Miller admitted on cross-examination that he could not identify appellant as either the man whom he saw taking off the jacket, or as ⁵⁸¹ one of the men he had seen running from the scene of the crime.

Leo Pratt testified that he was in his boat about 150 feet from the Stevens store when he heard a “terrific crash” followed by a shout that “somebody just busted into Stevens.” Pratt said that he saw two men running from the area, one of whom was carrying a television set, which he abandoned on the street; that one of the two men was wearing a yellow jacket and a brown beret and ran into a bar near the store. Pratt testified that he ran over toward the bar and observed the man who had entered the bar taking off his jacket with the help of several other persons; that Officer Adrian Joy of the Annapolis Police Department came on the scene at this time and he, Pratt, pointed out appellant as the man he had earlier observed enter the bar; that his identification was based on his recognition of appellant as one of the two men whom he had seen running from the store, including the fact that appellant was still wearing the brown beret hat. Officer Joy testified that he arrested appellant after Pratt told him of appellant’s involvement in the crime. Officer Jessie Clark testified that he recovered the yellow jacket from a stool inside the bar.

He stated that there were approximately 15 or 20 people in the bar at that time. Clark testified that he found a pack of Pall Mall cigarettes and a pair of sunglasses inside the jacket. On inquiry by Clark at the scene of the offense, appellant denied ownership of the jacket or its contents. Appellant testified that he had been drinking in the bar, and when he came out, somebody pointed his finger at him and said “that’s him.” Appellant testified he was then arrested.

Appellant denied breaking into the store or having owned or worn the yellow jacket. On cross-examination of appellant, the prosecutor asked him to remove the coat he was then wearing and try on the yellow jacket, which had previously been introduced in evidence as State’s Exhibit 3. Although not clear from the record it appears that while appellant was ⁵⁸²