Thomas v. State

Per Curiam. Norman Irvin Thomas, the appellant, was convicted in the Circuit Court for Prince George’s County by Judge Roscoe H. Parker, sitting with a jury, under three separate indictments. The first charged grand larceny and receiving stolen goods over the value of one hundred dollars ($100.00) while the second and third each charged robbery with a deadly weapon, assault with intent to rob with a deadly weapon and robbery. In the early morning hours of January 2, 1965, Thomas and Earl Wayne Tolson entered a Texaco service station in Brandy-wine, Prince George’s County.

After the two men had told the two attendants, Cledis Franks and Regis Grieninger that they had run out of gas, Thomas pulled out a sawed-off shotgun and instructed the two attendants to face the wall with their hands up. Tolson proceeded to take the wallets of each of the attendants and some money from the cash register, later ascertained to be one hundred and forty dollars ($140.00). At the trial Regis Grieninger identified Thomas as being the person who held the shotgun during the robbery. Grieninger had previously identified Thomas by picking him out of a crowd of fifty to one hundred persons in the courthouse hallway and had identified him at an earlier trial of the same incident.

Thomas testified that at the time of the robbery he was incarcerated in a District of Columbia jail. On cross-examination, he admitted that at the preceding trial his alibi had been that he had been in the La Plata jail. When asked, on cross-examination, if the records of the District of Columbia jail would refresh his recollection, Thomas stated that he had written for and received the records but that they had been incorrect. The records which were subsequently produced revealed that the appellant was not incarcerated in the jail in question until several hours after the robbery.

Tolson, the second hold-up man, testified that Thomas was not involved in the robbery and that as far as he knew Thomas had not been in jail on January 2, 1965 but at his mother’s ⁶⁴⁸ home. A William Watson also testified that Thomas had definitely been at his mother’s home. I Thomas’ first contention is that the evidence was insufficient under the first indictment in that there was a lack of proof that more than one hundred dollars ($100.00) had been taken from the cash register. It seems to us that the testimony of George Frederick Grienipger, the manager of the gas station, who testified as to the amount of money that was missing, was sufficient to take the issue to the jury.

Thomas also complains that the identification was insufficient. The Court of Appeals of Maryland and this court have repeatedly held that the identification by the victim, if believed, is sufficient, Walters v. State, 242 Md. 235 , 218 A. 2d 678 , Jones v. State, 2 Md. App. 356 . II The next complaint concerns the conviction of grand larceny and receiving stolen goods on the basis that the counts were mutually exclusive. It is true that the verdict is inconsistent, however, there was no objection below and there was no prejudice.

In Bell v. State, 220 Md. 75 , 150 A. 2d 908 at page 911 the Court of Appeals discussed this matter thoroughly and stated: “We also observe that in Heinze v. State, 1945, 184 Md. 613 , 42 A. 2d 128 , we recognized that a general verdict of guilty on two inconsistent counts, such as larceny and receiving, is defective. This is so because a defendant cannot be both a thief and a receiver when it is apparent that the property alleged to have been stolen is the same as that alleged to have been received. When a verdict of guilty is rendered on inconsistent counts, the defendant has a right to require the trier of facts to specify on which of the counts he is guilty, but it is a right which may be waived. Since the question was not raised below in any manner, it may be that the defendant waived the inconsistency.