Tucker v. State

Oppenheimer, J., delivered the opinion of the Court. Judge Grady, sitting without a jury, in the Criminal Court of Baltimore, found the appellant guilty on three counts of a six count indictment. The three counts were: storehouse breaking over one hundred dollars; storehouse breaking and stealing five dollars or more, and common-law larceny. The appellant has appealed the judgments entered on those counts.

There were two State’s witnesses, the co-defendant, Spencer, who had entered a plea of guilty, and Gloria Henry. In Spencer’s original testimony, he was vague and non-committal on the question of the appellant’s complicity in the crimes, and named Charles Eugene Jackson as his accomplice. Spencer stated that fifths, pints and miniatures of whiskey, stolen on the night of the theft, were taken to the home of Gloria Henry. Thereafter, Gloria Henry testified that the appellant accompanied Spencer when ⁴²⁴ the whiskey was brought to her home.

After her testimony, Spencer, through his counsel, was recalled to the stand at his own request, and testified without equivocation that the appellant was his accomplice. Spencer stated that his decision to name the appellant was largely due to the testimony of Gloria Henry which had established the true facts. Appellant’s first contention on this appeal is that the testimony of Spencer was so contradictory as not to be worthy of belief, and therefore, the trial judge could not properly rely upon such testimony in reaching his finding of guilty. The appellant relies principally upon Kucharczyk v. State, 235 Md. 334 , 201 A. 2d 683 (1964) and the cases cited therein.

In Kucharczyk there was only one witness produced by the State whose testimony, if believed, would have established the corpus delicti. That witness was the victim, a mentally deficient boy of 16, who denied that the defendant had committed unnatural and perverted sex acts upon him and then asserted that the defendant had in fact committed these acts. The victim’s testimony was contradictory in other respects relating to the details of the crime. We are convinced that the testimony of Spencer was not so contradictory within the meaning of Kucharczyk that it had no probative force.

At no time did Spencer contradict himself on the details of the crime as was the case in Kucharczyk . In fact, Spencer’s testimony, that the fruits of the crime were taken to the home of Gloria Henry, was corroborated by Gloria Henry when she was called to the stand. It was Gloria Henry’s corroboration of those details and her further testimony that at that time the appellant accompanied Spencer, which led to Spencer’s subsequent testimony that appellant was his accomplice. In Kucharczyk we said: “If there had been other witnesses whose testimony sufficiently established the corpus delicti, the contradictions in the prosecuting witness’ testimony would not necessarily be cause