Vandergrift v. State

Orth, J., delivered the opinion of the Court. The judgments against Richard Allen Vandergrift entered in the Circuit Court for Cecil County are reversed because the evidence was not sufficient in law to sustain the convictions of breaking a storehouse with intent to steal goods of the value of $100 and upwards and grand larceny. 1 As the case was tried before a jury the ques ²⁷⁹ tion comes to us on a denial of motion for judgment of acquittal made at the close of all the evidence. 2 Williams v. State, 5 Md. App. 450 . We hold the lower court erred in denying the motion. As we cannot determine from the record whether or not additional probative evidence can be produced on a retrial, we remand the case for further proceedings as provided in Gray v. State, 254 Md. 385 , 397 under such circumstances.

The evidence adduced by the State clearly proved the corpus delicti of the two offenses. 3 But at the close of all the evidence there was no evidence direct, or by rational inference, or circumstantial, sufficient to establish the criminal agency of appellant. What had happened was that the State expected that the testimony of two witnesses called by it would show that appellant was a principal in the crimes. They were admitted participants ²⁸⁰ in the breaking of the building and the stealing of the goods and in testifying in the previously tried case of one Junior Reed, also charged with the crime, and in statements given the police on the day the breaking was committed, each had declared that Richard Vandergrift was an actual perpetrator of the crimes, supplying the money to buy the tools and being physically present on the roof, aiding and abetting the breaking and the larceny of the goods. See Agresti v. State, 2 Md. App. 278, 280 .

These two witnesses, Michael Trevlon Jones and Thomas Truitt Phillips, Jr., each 15 years of age at the time of the crimes, were, of course, accomplices, but had they testified in appellant’s trial as the State anticipated, their testimony would have been corroborated as required by the rule, for a deputy sheriff testified he had seen appellant and Phillips together in the vicinity of the Firestone Store about two hours before the breaking. This evidence tended to identify appellant with a perpetrator of the crimes. Burley v. State, 5 Md. App. 469, 472 . However, both Jones and Phillips in testifying in the instant case positively denied any participation by appellant whatsoever.

They recanted their prior declarations that appellant had supplied the money to buy the tools, had been with them and other perpetrators of the crimes, 4 or had taken any part in the breaking and stealing. Declared hostile witnesses upon claim of surprise by the State, they steadfastly maintained that appellant in no way participated. Each admitted he had lied in the Reed trial and to the police, explaining that it was a scheme to get even with appellant for something he had done to Jones. But on second thought they had a change of heart.

In the words of Jones: “Ain’t no sense in nobody going to jail for nothing they didn’t do.” None of the other State’s witnesses except the deputy sheriff had even seen appellant the night of the breaking although some ²⁸¹ knew him as a “local subject.” The deputy sheriff said that when he saw appellant and Phillips about two hours before the crime was committed they did nothing wrong in his presence. He told appellant that Phillips was too young to be out that time of night (about 12:15 a.m.) and to see that he got home. They went on their way, appellant stating he was going to the Gran Diner to meet his wife. The owner of the store said he had seen appellant in the store about two weeks before but none of the witnesses produced any evidence tending to show that appellant was implicated in the breaking in any way whatsoever and most, on cross-examination, stated expressly that they could not do so.

The trial court properly permitted proof of the prior statements by Jones and Phillips which were contradictory to their testimony at appellant’s trial. We said in Hernandez v. State, 7 Md. App. 355 , 365: “While a party ordinarily may not impeach his own witness by proof of prior statements which are inconsistent with, or contradictory to, his testimony at trial, where such party satisfies the court that he has been taken by surprise and that the testimony is contrary to what he had a right to expect, it is within the sound discretion of the trial court to determine whether or not proof of prior inconsistent statements should be permitted. * * * Where such proof is allowed, its admission is not for the purpose of discrediting the witness, but to contradict him and thereby afford the party calling him an opportunity to show why he called the witness.” (citations omitted)