Smith v. State

Thompson, J., delivered the opinion of the Court. Fitzgerald Lewis Smith, the appellant, was convicted of larceny in a court trial in the Criminal Court of Baltimore. Smith received a suspended sentence of eighteen months. On this appeal he contends the evidence was insufficient to support his conviction.

We agree. The record indicates that on Sunday, May 26, 1968, the home of one Abraham Brown was broken into. Among the items taken were a stereo record player and two lamps. The next day, May 27, 1968, Willis Brown, a brother of the victim and familiar with his possessions, was approached in a bar by Edward Graham, a codefendant, and asked if he, Brown, wanted to buy some ¹⁶⁵ items from a friend of Graham’s.

It is disputed whether Graham offered to sell the stereo alone or the stereo plus the lamps. In any case, Smith was not present during any of these conversations and, while testifying, Smith denied that Graham was selling the items as his agent. Willis Brown, suspecting the items for sale to be his brother’s, went with Graham to 1831 East Eager Street, the home of Grace Tate, another co-defendant, to inspect the merchandise. As to how the stolen items got into the Tate apartment, there is a conflict of testimony.

Graham testified that Smith purchased the goods from two youths in the neighborhood and being immediately dissatisfied with his purchase, Smith had asked Graham to sell the items for him. Graham also testified that he, Smith, and the two youths all helped carry the stereo into Tate’s apartment. Smith, in his testimony, denied being with Graham at the time of purchase, helping to take the stereo to Tate’s apartment, having any conversation relative to the stereo, or having any control over it. Smith claims the first time he saw the stereo was on Monday, May 27.

Grace Tate testified that Graham and the two youths brought the stereo to her apartment, claiming that Graham had been evicted and needed a place to store his belongings. She testified that Smith was not with Graham when the stereo was deposited at her apartment. However the stolen items got to Miss Tate’s, Willis Brown testified that he did in fact see the stereo and two lamps there and recognized them as belonging to his brother. He agreed to buy the items but said he had to go home for more money.

Grace Tate was present at the time of that conversation, but the appellant, Smith, was not present. Willis Brown reported his discovery to the police and a search warrant was issued for the apartment at 1811 East Eager Street. The police executed the warrant on May 29, 1968, three days after the robbery and two days after the visit of Willis Brown to the East Eager Street address. Upon arriving at 1811 East Eager Street, the ¹⁶⁶ police were met by Betty Smith, appellant’s wife.

Also present were Smith and the sick child of Grace Tate. Although the police officer testified that one of the Smiths responded that they lived at 1811 East Eager Street, on cross-examination, the officer stated that the police did later determine that the Smiths did not live at 1811 East Eager Street, but rather lived at 941 Butland Avenue. Appellant Smith denied that he or his wife had said they lived at the East Eager Street address. At the time the police searched the Tate premises, Smith denied that the stereo and lamps were his.

The prosecution presented no further evidence against appellant Smith. By way of positive explanation for Smith’s presence at the home of Grace Tate at the time the police arrived, Smith testified: Tate is the cousin of his wife; the Smiths visit Miss Tate frequently and on this particular occasion Mrs. Smith had gone to babysit for Tate’s sick child while she went to work. Smith then joined his wife at the Tate residence, taking with him some paper work connected with his confectionary business. The police asked Smith if there was a stereo in the apartment; whereupon, Smith said there was one in the dining room.

At the trial, all codefendants testified plus Mrs. Smith, appellant’s wife. For the prosecution both Abraham and Willis Brown testified as did the police officer who executed the search warrant. It appears the trial judge applied the rule that absent a