Tucker v. State

Per Curiam. On September 25, 1967, the appellant, Charles Tucker, was tried by a jury in the Criminal Court of Baltimore, Judge Edwin J. Wolf presiding, and convicted of the crimes of robbery with a dangerous and deadly weapon and assault and battery. Appellant was sentenced to ten years imprisonment on each conviction, to run concurrently. The appellant raises two contentions on appeal: 1.

That the trial court erred in permitting the State to amend Indictments Nos. 3737 and 3738. ³⁴ 2. That the trial court erred in its rulings during the cross-examination of the prosecuting witness. The evidence adduced at the trial revealed that on the evening of July 22, 1966 the prosecuting witness, Thelma Tynes, reported to work at Booz’s Tavern, 2259 Reisterstown Road, Baltimore, Maryland. When she arrived, the cash register contained $100.00.

Her testimony established that the appellant arrived at approximately 5 :30 p.m. and stated, “This is a holdup”, and subsequent thereto struck a customer, Virgil Wright, on his head with a gun. She further testified that the appellant ordered her to put the cash register money into a bag, which she did. Mrs. Tynes gave the police a description of the appellant and identified him as Charles Tucker. The cross-examination revealed that Mrs. Tynes never viewed a lineup; however, she recognized the appellant at the preliminary hearing, but failed to say anything as she didn’t want to be involved in the case.

The State’s witness, Virgil Wright, testified that he was in the tavern when the hold-up man drew his weapon, struck him on the head, and instructed him to shut up. The thrust of the appellant’s first contention is that the trial court, by permitting the State to amend the time element in the two instant indictments, changing an alleged “typographical error” from July 22, 1967 to read July 22, 1966, denied the appellant both the opportunity to defend and notice of what he was called upon to defend. Maryland Rule 714 states: “The court may permit an indictment or information to be amended at any time before verdict as to matter of form, but not as to matter of substance.” Therefore, we are confronted with reaching the determination as to whether the instant amendment constitutes a change of form or substance. In Corbin v. State, 237 Md. 486 , 206 A. 2d 809, 811 (1967), the Court of Appeals