Wells v. State

Anderson, J., delivered the opinion of the Court. Appellant, William Herman Wells, was tried on February 28, 1969 in the Criminal Court of Baltimore in a non-jury trial by Judge George D. Solter for shoplifting and assault with intent to murder. Judge Solter found him guilty on both charges and sentenced appellant to eighteen months and ten years, respectively, the terms running consecutively. Appellant presents six questions for the consideration of the Court.

They are: 1. Did the State fail to establish legally sufficient evidence of the ownership of the items alleged to have been stolen ? 2. Did the court err in permitting the State to introduce secondary evidence without requiring an explanation of the absence of the . original evidence? 3. Was the appellant illegally arrested and searched? ⁵¹³ 4.

Was there insufficient evidence to show directly or to permit a reasonable inference of an intent to murder ? 5. Was the appellant unconstitutionally denied a paraffin test ? 6. Was there insufficient untainted evidence of identification of the appellant? The testimony adduced at trial presented the following facts: On November 13, 1968, a female clerk of the W. T. Grant Company store, located in the Frankford Shopping Plaza in Baltimore, observed appellant and another man leaving the store.

Her attention was called to the two men by a bulge under appellant’s coat, which she described as being a black leather three-quarter length car coat. As the men left the store, she sounded an alarm to which four male employees responded. The men left the store in pursuit of the two men. Mr. Wolfe, a store employee, was the first to cover the block long distance of the shopping center and at the rear of the shopping center he observed one of the men reaching into a trash can.

He approached them and discovered a portable radio with a Bradford label specifically used by W. T. Grant Company in the trash can. He later found a phonograph with an Electra label, also used by W. T. Grant Company, in an adjacent trash can. The other three employees arrived and the appellant and his companion fled. As they ran, the appellant’s companion yelled, “Run, run” and “Pull the gun, pull the gun.” As the store employees gave chase, appellant yelled, “Stop”, turned as he ran and fired the gun once at Warren Moore, who was the closest of his pursuers at the time.

The two men escaped and the police were called. Officer Dunn, upon his arrival, was told what had taken place and received a description of the suspects from the employees. He went into the woods adjacent to the shopping center where he was told the men had fled and observed footprints in the mud leading towards Pulaski Highway. On arriving at the highway, he observed appellant, who matched the description given ⁵¹⁴ him, wet with mud on his shoes, and placed appellant under arrest.

I Appellant first contends that the evidence as to the ownership of the stolen items was insufficient to sustain the conviction. Specifically, the objection is that the State in the indictment alleged ownership in the W. T. Grant Company, Incorporated (in fact the indictment read W. T. Grant Company, a corporation), while at trial reference was made only to the W. T. Grant Company and no evidence was produced that the W. T. Grant Company was in fact a corporation. “It is fundamental, . . . . , that in a prosecution for larceny one of the essential elements to be proved is the ownership of the stolen property; and, when ownership is claimed to be in a corporation, the claim must be supported by evidence. Richardson v. State, 221 Md. 85 at 88 .” 156 A. 2d 436 at 438 . The rationale of the rule is that “The accused is entitled to be informed of the exact accusation against him and to have the proof substantiate that accusation beyond reasonable doubt.” Sippio v. State, 227 Md. 449 at 451 , 177 A. 2d 261 at 262 .

The Court of Appeals in Richardson v. State, supra, stated at page 89, 156 A. 2d 438 : “[T]he most satisfactory proof of corporate entity is the production of the articles of incorporation of a company, duly and properly authenticated, coupled with additional proof that the company is engaged in conducting business under its corporate name. But in a criminal prosecution, it is generally held that such formal proof is not required, (citing authority) It has frequently been held that in certain types of cases, corporate existence may be proved orally and by general reputation.” The cases decided since Richardson, supra, have followed the general rule of permitting proof of corporate ⁵¹⁵ existence by references thereto during trial. In making the determination as to sufficiency of proof of corporate existence, the Court of Appeals, and this Court, have followed closely the language of Md. Code, Article 23, Section 5 (a) (1) which provides: “Sec. 5 Corporate name. (a) Indication of a corporation; not to conflict with charter as to purpose; infringement on name of other corporation. — The name of the corporation— (1) Shall be such as to indicate that it is a corporation.

This provision shall be deemed to be complied with if the name contains the word “corporation,” “incorporated” or “limited”; or ends with an abbreviation of one of such words; or ends with the word “company,” (emphasis supplied) if such word is not immediately preceded by the word “and” or any symbol therefor.” In Richardson v. State, supra, the indictment alleged that Horn Motor Express was a corporation. At trial one witness referred to it as “Horn’s Motor Express, Inc.,” and another to it as “Horn’s Motor Express Company.” The Court found the indictment had been sufficiently proven and stated: “The fact that Horn’s Motor Express, Inc., ended with the abbreviation ‘Inc.’ coupled with the many occasions in the testimony where it was referred to, by appellant’s counsel and others, as Horn’s Motor Express Company (emphasis supplied) and the further fact that, during the entire trial, there was not the slightest intimation that Horn’s Motor Express, Inc., was not a corporation, permitted and justified the inference that the company was incorporated.” 221 Md. 85 at 89 , 156 A. 2d 436 at 439 . In Sippio v. State, supra, the indictment alleged a theft from Panzer Pickle Co., Inc., a corporation. At trial the truck driver who was robbed stated he was employed by ⁵¹⁶ the Panzer Pickle Company.

There was no other testimony as to the corporate existence except that he drove a truck “for them,” the use of which language the Court of Appeals felt negated a corporate existence. There was no proof that either the money taken or the truck from which it was taken belonged to the Panzer Pickle Company. The Court of Appeals in reversing Sippio’s conviction stated, “In the case before us the single reference to the company name (which did not include the “Inc.” used in the indictment) was not, we think, sufficient.” 227 Md. 449 at 452 , 177 A. 2d 261 at 262 . In Byrd v. State, 229 Md. 148 , 182 A. 2d 47 , the indictment alleged a larceny from City Chevrolet Co., Inc., a corporation.

The first witness for the State responded affirmatively when asked whether he worked for City Chevrolet Corporation. All other witnesses referred to it simply as City Chevrolet. The Court of Appeals in affirming Bryd’s conviction stated: “We think the evidence produced by the State in this case sufficient in this regard, and the Richardson case almost parallel on its facts. The appellant relies heavily upon Sippie [sic] v. State, 227 Md. 449 , a reversal, where not only was there a complete absence of any proof of corporate existence but also a failure on the part of the State to prove the ownership of stolen money.” 229 Md. 148 at 150 , 182 A. 2d 47 at 48.

The Court of Appeals thus limited the Sippio rationale to emphasize the State’s failure in Sippio to prove ownership of the property rather than the State’s failure to prove corporate existence. In Szewczyk v. State, 7 Md. App. 597 , 256 A. 2d 713 , the indictment alleged larceny from Food Fair, Incorporated, trading as Pantry Pride Supermarket. The store manager testified that he was employed by Food Fair, Incorporated, operating as Pantry Pride, and that he knew Food Fair to be a corporation. This Court held the testimony was sufficient to establish corporate existence.

In the instant case Mrs. Anita Thompson testified that she worked for W. T. Grant’s, Frankford Plaza. Mr. John ⁵¹⁷ Mueffelman testified that he worked for the W. T. Grant Company. When asked what his position had been, he replied “I was store manager of our store number 1082, Moravia Road, Frankford Shopping Center.” “Q. You say your store. Is that Grant’s?

A. W. T. Grant Company.” Later in his testimony Mr. Mueffelman was asked the make of the stolen phonograph and the following was elicited : “A. It was our Electra. Q. You say, ‘Our Electra’? A. We carry the item in the Grant Company and it had the nameplate of Electra on it, I believe.” Mr. Richard Wolfe testified he was employed at W. T. Grant, 6437 Moravia Road and that he was a division merchandiser with W. T. Grant Company. Later in his testimony, when asked about the make of the stolen radio, he replied “ [I] t has the Bradford label, which is a label specifically used by W. T. Grant and Company.” Later in his testimony the following took place: “A. Well the radio