Williams v. State

Hammond, J., delivered the opinion of the Court. The appellant was tried in the Circuit Court for Wicomico County on an indictment containing three counts, the first, charging breaking and entering a warehouse with intent to commit a felony therein — Code (1951) Art. 27, Sec. 38; the second, larceny to the value of $100.00 or upwards — Code (1954 Supp.) Art. 27, Sec. 405; and the third, receiving stolen goods. The jury found him guilty of the offense charged in count one, guilty of the offense charged in count two, and not guilty of the offense charged in count three. The court sentenced him to a term of fifteen years for larceny and a term of five years for breaking and entering, the sentences to run consecutively.

The appellant contends that the court erred to his prejudice in two rulings on evidence and in imposing consecutive sentences. There was testimony that a coal company in Salisbury had been broken into between closing time on Saturday and early opening time on Monday morning. A window and an inner door had been ripped open, as had the steel door of a large concrete vault, a large safe, and a wall ⁴⁷² safe inside the vault. There was a hole some two- inches in, diameter punched through, the wall of the vault..

The edges around the door of the vault had. been torn loose and punched and its metal moulding ripped off. On the Sunday the crime was committed, a member of the Salisbury Police Department observed a 1953 Buick Riviera automobile, with a gray body and maroon top, bearing Virginia license tags number 100660, parked some nine hundred feet from the office of the coal company. The police officer noticed an hour later that the car was in the. same place. On the following Wednesday, the appellant drove the same automobile seventy miles an hour through Salisbury in an effort to escape the police, and finally was forced against the.- curb.

Some $6,000.00 was found under the front seat of the car in bills of the same denominations as those which had been stolen from the coal company. At the trial, the Chief of Police was permitted, over objection, to- testify that on Wednesday, the day of the arrest, the appellant told him that the Buick automobile belonged to his wife, that he had the car in his possession all day the previous Sunday, but that he was not in Salisbury that day and the Buick which he was driving was not in Salisbury that day, as well as that the money found in the automobile was not his and he had no knowledge of it. On cross-examination, it was elicited that the appellant’s statement had been reduced to writing and that the policeman’s testimony was recited from the writing. It may well be that, the writing should have been offered in evidence by the State, but since, no objection was made on this score, the appellant cannot complain in. this Court.

Gray v. State, 181 Md. 439, 445 ; Cooper v. State, 205 Md. 162 , 106 A. 2d 129 ; Chisley v. State, 202 Md. 87 . The appellant concedes, as we think he must, since the automobile had been observed close to the scene of the crime on the Sunday of the crime, that so much of his. statement as admitted that the automobile belonged to his wife and that it was in, his possession on that Sunday, is an admission which was rele ⁴⁷³ vant and proper evidence. In Delnegro v. State, 198 Md. 80 , the Court said that an admission is an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, but which tends to establish the ultimate fact of guilt. The appellant’s objection is that the parts of the statement which said that he was not in Salisbury on Sunday and that the Buick was not in Salisbury on Sunday, and which denied the ownership or knowledge of the money found in the car, constituted neither an admission nor a confession but were simply hearsay statements which should not have been repeated to the jury.

He argues that since the State had shown the presence of the Buick near the place of the crime on the day it was committed, his denial that he or the car were so present, impugned his credibility and tended to degrade his character in the eyes of the jury. It is difficult, if not impossible, to imagine how the statement to the jury by the police that the defendant had denied to them the commission of the crime and any connection with it, could be prejudicial to, or worsen, the accused’s standing with the jury. Cf. Wolf v. State, 143 Md. 489 .

Furthermore, it is clear that all of a statement, a part of which constitutes a confession or an admission, is admissible in evidence, the exculpatory as well as the inculpatory. In Walters v. State, 156 Md. 240 , it was held that the State should offer the whole of a confession, and not extracts, and that if the State offers but a part, the defense can require the production of the rest. In Gray v. State, supra, the Court, at page 445 of 181 Md., referred to the Walters case and said: “* * * this Court has said that it is the duty of the State to offer the entire confession and not a part of it.” See also Chisley v. State, supra. Wharton’s Criminal Evidence, Sec. 606 and 645, makes it plain that the whole of both confessions and admissions should be submitted to the jury.

It is said in the latter section: “And as in the case of confessions, the whole of a statement containing an admission should be received in evidence.” In Word v. United States, 199 F. 2d 625 , C.C.A. 10, ⁴⁷⁴ certiorari denied, 345 U. S. 936 , 97 L. Ed. 1363 , the only evidence which the Government had to connect the appellant with the crime of unlawful interstate transportation of an automobile, was his admission to a Federal agent. He contended that when viewed in the light of the exculpatory explanation that he transported the car with the consent of the owner, there was a complete negation of unlawful intent. The Court said: “Undoubtedly, both the inculpatory and the exculpatory parts of the statement to the agent were admissible in evidence. * * * In the exercise of its province to weigh the evidence and assess the credibility of the witnesses, the jury chose to disbelieve the exculpatory part of the admission in the face of inconsistent testimony of the owner of the car.” See also State v. Marsh (N. C.) 66 S. E. 2d 684, 687 , and annotations in 2 A. L. R. 1017 and 26 A. L. R. 541. Under the authorities, the whole of appellant’s statement to the police was admissible.

The appellant contends that the manager of a chain store should not have been permitted to testify that shortly before the crime, he bought three crowbars and several large screw drivers. We think the evidence was proper. The crowbars and large screw drivers were tools eminently suited for use in gaining entry to the coal company and its valut in the manner in which entry was gained. Where the connection of proffered evidence with the crime or the accused is in doubt, probability is the only requirement.

In Lingner v. State, 199 Md. 503 , Judge Collins for the Court, at page 507, said: “As to the argument that there is not sufficient connection between the appellant and the bags, probability is the only requirement. If there is any doubt, the decision is on the weight of the evidence, not on any question of admissibility.” See also King v. State, 201 Md. 303 ; and Berry v. State, 202 Md. 62, 66 . The appellant’s argument as to the illegality of the consecutive sentences is this: “The first count charged breaking and entering, a misdemeanor, and the second count grand larceny, a felony. Both charges arose out ⁴⁷⁵ of the same transaction.

Appellant does not contend that he could not be convicted on both but only one punishment should have been imposed. Upon a conviction on both counts the lesser offense in the first count merges with the greater offense in the second count and there can be but one sentence. * * * Under this rule the Court could only impose judgment on the second count, grand larceny, and the additional sentence on the first count is invalid.” In Gilpin v. State, 142 Md. 464 , the Court adopted the following definition of merger: “ ‘The merger of one offense in another occurs when the same criminal acts constitutes both a felony and a misdemeanor. In such a case, at common law, the misdemeanor is merged in the felony, and the latter only is punishable. This doctrine applies only where the same criminal act constitutes both offenses, and where there is identity of time, place, and circumstances.’ ” Historically, there was justification for the doctrine of merger, which included the fact that the incidents of a trial for a felony were so different from those of a trial for a misdemeanor that it was unfair to permit the prosecution to interchange them.

For example, one charged with a felony was not entitled to counsel, and there were other substantial differences. See Wharton, Criminal Law, Twelfth Edition, Vol. 1, Sec. 39. The procedural distinctions between felonies and misdemeanors have been largely, if not completely, abolished so that, as Wharton puts it: “* * * the doctrine of merger, above stated, has no reasonable basis on which to rest.” The Gilpin case points out that in most jurisdictions the doctrine of merger has been confined to very narrow limits, and in England and in some of the States, it has been abolished by statute. It has been at least partly abolished in Maryland — Code (1951) Art. 27, Sec. 693.

In Klein v. State, 151 Md. 484, 491 , the Court, after speaking of the abolition of the doctrine of merger in statutory felonies, added: “* * * even if it still applies to common law felonies in this state, there would be no tendency by this Court to disregard any of the rules which govern ⁴⁷⁶ its application. It does not seem to be a doctrine which is much favored in the law * * *.” Even in days when the doctrine of merger had more favor, vitality and effectiveness than it now has, the majority holding was that breaking and entering and larceny were