Sizemore v. State

Orth, J., delivered the opinion of the Court. Six questions are presented on this appeal relating to the following issues : I Change of venue. II Variance between the allegata and the probata. III The admission of evidence.

IV The legality of the arrest and the reasonableness of the search and seizure. V The sufficiency of the evidence. VI Prejudice from the State’s Attorney’s comments to the jury. The appellant was found guilty by a jury in the Circuit Court for Cecil County of grand larceny charged in the 5th count of the indictment, drawn under Md. Code, Art. 27, § 340, and larceny of a motor vehicle charged in the 9th count of the indictment, drawn under Md. Code, Art. 27, § 348.

He was sentenced to 12 years on each conviction, the sentence on the 9th count to run concurrently with that on the 5th count. I THE MOTION FOR CHANGE OF VENUE Prior to trial the appellant filed a motion for a change of venue and a hearing was held thereon. Rinda R. Boulden, called by the appellant, testified that she resided in Earleville. She identified a placard as being in most stores around the area.

The placard offered a reward to anyone having information about the large number of robberies in the area. She said that the general feeling of the people in the community was that they were upset and bothered about the robberies and wanted to “put an end to it.” The appellant introduced four newspapers containing reports of crimes, articles on crime and letters to ⁵¹¹ the editor on the subject. Three of the newspapers were circulated prior to the date of the commission of the crimes with which the appellant was charged. The other, published on the date of his crimes, bore a front page headline, “Police capture thief suspects.” The lower court found that none of the newspapers were inflammatory “or in any way remotely prejudicial” to the appellant, including the one carrying the factual report of the capture of the appellant and other suspects.

It felt that the evidence — the newspapers, the placard and the testimony of the witness — did not meet the burden of persuasion that the appellant had been prejudiced. Holding that the appellant could receive a fair and impartial trial in Cecil County and his rights could adequately he protected by a full and complete examination of prospective jurors on their voir dire, it denied the motion. Whether or not non-capital cases should be removed is a matter within the sound discretion of the lower court. McLaughlin v. State, 3 Md. App. 515 .

The burden was on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of prospective jurors, available to him, would not be adequate to assure him a fair and impartial jury. See Seidman v. State, 230 Md. 305 ; Gray v. State, 224 Md. 308 ; Walter v. State, 4 Md. App. 373 . We cannot say that the lower court was clearly erroneous in its judgment on the evidence and find no abuse of discretion in the denial of the motion for a change of venue. Md. Rules, 1086.

II VARIANCE BETWEEN THE ALLEGATA AND THE PROBATA The 5th count of the indictment charged that the appellant “unlawfully did steal, take and carry away” specified goods over the value of $100 of Warren Jay Gerhardt. The count listed certain particularly described goods as stolen and also alleged that goods generally described as “tools” were stolen. Evidence adduced by the State showed that only “1 blue tool box” particularly described in the count and certain tools contained therein, which would be included in the general designation of “tools” in the count, were the property of Warren Jay Gerhardt ; the other goods were shown to be the property of Cecil- ⁵¹² ton Farm & Home Supply, a partnership, the partners being Warren Jay Gerhardt and his father. The appellant claims that the count was defective as not in accordance with Md. Code, Art. 27, § 605, which provides, in relevant part: “In any indictment for any felony or misdemeanor wherein it shall be requisite to state the ownership or possession of any property whatsoever * * * which shall belong to or be in possession of more than one person, whether such persons be partners in trade, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to name one of such persons, and to state such property to belong or to be in possession of the person so named, and another or others as the case may be; and whenever in any indictment * * * it shall be necessary to mention for any purpose whatever any partners, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to describe them in the manner aforesaid.” We think it clear that the count did not state the ownership of those goods shown to be partnership goods in the manner stated to be sufficient by the statute.

While it is not necessary to name each partner, the statute requires that one be named and to state such property to belong to the one named “and another or others.” The count here did not do so, placing ownership only in Gerhardt. But that the count did not state the ownership of the goods in the form stated to be sufficient by the statute as to partnership goods did not render the count defective. It made a proper allegation of ownership in an individual and was valid as framed. The question is, however, whether there was a variance between the allegation and the proof.

That is to say, may a conviction of larceny be had under an allegation that the goods stolen were the property of Warren Jay Gerhardt on proof that the goods were the property of Gerhardt and another as co-partners. We do not think so. In Melia v. State, 5 Md. App. 354 , we said, “Since larceny is a crime against possession, * * * an allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as ⁵¹³ laid in the indictment is an essential factor to justify a conviction * * *.” (citations omitted) 1 In Melia we held that there was a fatal variance when the allegation was that goods were owned by two corporations and the proof was that they were owned only by one corporation. Here the allegation was that goods were owned by one person and the allegation was not in the form stated to be sufficient as to ownership in that person and another as partners by Md. Code, Art. 27, § 605.

As to those goods proved to be owned by that person and another as partners, the allegation was not sustained by the proof and there was a fatal variance. But there was also proof that certain of the goods designated in the larceny count, namely one blue tool box and some tools, were owned as alleged — by Gerhardt alone. Since “indictments for larceny * * * are sustained by proof of taking any part of the goods averred * * *, provided the punishment is the same, whether more or less is taken,” Hochheimer, Criminal Law, § 263, p. 167, this proof would have been sufficient to sustain the conviction of grand larceny if those items had a total value of $100 or more and if they were properly identified as having been stolen. There was evidence sufficient to show that the tool box had been stolen and was found in the possession of the appellant.

The tool box was on a truck driven by the appellant. However, after he had been apprehended, custody of the box and its contents were not retained by the police but were given to the owner, Gerhardt. Gerhardt produced the box, filled with tools, at the trial. He identified the box and the tools which were in it at the time of the trial, as his, valued the box at $10 and the total value of the tools therein at $213.95, each tool being separately shown him and valued by him.

But the tools in the box had not been inventoried by the police before they were returned to Gerhardt and we cannot find in the record evidence sufficient to show that the tools identified and valued by Gerhardt at the ⁵¹⁴ trial were the tools that had been in the box when it was stolen. It is clear that they were in the box when the owner brought it into court at the trial but it was not shown that they were the same tools which were in the box when it was stolen or when it was returned to him by the police. 2 In the absence of such proof we think that the tools were improperly admitted in evidence. Therefore the only proof which could properly be considered as to the goods alleged in the larceny count showed that one blue tool box with a value of $10 had been stolen. This proof was not sufficient to sustain the allegation of grand larceny charged in the count and the judgment on that count must be set aside. 3 The burden was upon the State to prove that the value of the goods taken was in excess of $100.

Cofflin v. State, 230 Md. 139, 144 . Ill THE ADMISSION OE EVIDENCE The contention of the appellant under this issue, that the contents of the tool box were inadmissible for the reason that the chain of custody was not established, is rendered moot by our finding in II, supra. ⁵¹⁵ IV TUB LEGALITY OP THE ARREST AND THE REASONABLENESS OF THE SEARCH AND SEIZURE During the trial the appellant moved “to suppress all tangible evidence” on the ground that the search and seizure of it without a warrant was unreasonable because his arrest was illegal. See Md. Rules, 729. After receiving testimony out of the presence of the jury, the lower court denied the motion, finding that the arrest was legal.

The tangible evidence admitted was the tool boxes and tools seized as an incident to the arrest and were material to the conviction of grand larceny under the 5th count of the indictment. As we have set aside the judgment under the 5th count, the questions with regard to the legality of the arrest and the reasonableness of the search as a result of which the challenged evidence was seized are moot and we need not determine whether the lower court erred in denying the motion to suppress. We note that the truck, the stealing of -which by the appellant was charged in the 9th count, was, of course, not physically offered in evidence. A photograph of the truck was admitted in evidence without objection (counsel for the appellant specifically stated that he had no objection to its admission) and when arguing that the State should be required to bring in every item seized, defense counsel said, in response to an inquiry by the Court, “I am not raising an objection to the truck.” V THE SUFFICIENCY OP THE EVIDENCE The question to which this issue is related is whether there was “evidence of intent to permanently deprive” the owner of the truck stolen of his property.

The appellant does not contend that the evidence was not sufficient to show that the truck was taken and carried away by