Anglin v. State, 1152

• Decision Date: 09 September 1975
• Docket Number: No. 1152,1152
• Citation: 28 Md.App. 150,344 A.2d 130
• Parties: Morris Edwin ANGLIN, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 150

28 Md.App. 150

344 A.2d 130

Morris Edwin ANGLIN, Jr. v. STATE of Maryland.

No. 1152.

Court of Special Appeals of Maryland.

Sept. 9, 1975.

Certiorari Denied Nov. 21, 1975.

Reginald W. Bours, III, Assigned Public Defender, Rockville, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County, and Thomas A. Blair, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before ORTH, C. J., and MENCHINE and MOORE, JJ.

MENCHINE, Judge.

Morris Edwin Anglin, Jr. was convicted by a jury in the Circuit Court for Prince George's County for daytime housebreaking, ¹ and for grand larceny ² under one indictment (hereafter sometimes called Lyle case). In the same trial he was convicted also by the jury for receiving stolen goods of a value of over $100.00 ³ under a second indictment (hereafter sometimes called Pearson case). He was sentenced to ten years imprisonment for daytime housebreaking; to fifteen years imprisonment for grand larceny to run consecutively; and to ten years imprisonment for receiving stolen goods to run concurrently.

The following contentions are made on appeal:

1. That appellant's motion for severance or mistrial in the Pearson case was improperly denied.

2. That there was a fatal variance in the Lyle grand larceny case.

3. That the evidence was legally insufficient to convict in the Pearson case.

4. That the prosecutor's closing argument requires reversal.

5. That the trial court erroneously restricted cross-examination of the State's witnesses.

6. That the trial court erroneously restricted direct examination of defense witnesses.

7. That the trial court erroneously allowed an attorney witness to invoke privilege.

8. That the sentences imposed were illegal because:

(a) the sentencing judge gave consideration to disputed convictions or convictions when appellant was without counsel, or

(b) they were so unfair as to constitute denial of due process and equal protection of the laws.

1. Severance or Mistrial

By virtue of the State's motion to consolidate, the Lyle indictment was joined with the Pearson indictment. A motion by appellant opposing the joinder of three indictments had been denied as to the two subject indictments but granted as to a third. Thereafter, the jury was empanelled in the consolidated cases. On the second day of trial appellant made an oral motion for a severance of the two indictments upon which trial had commenced. That motion was made upon the ground that the prosecution had stated that it would use less evidence in the Pearson case than discovery procedures had indicated to appellant would be presented by the State.

In the course of argument upon the motion for severance the following colloquy among appellant, State's attorney and court occurred:

'THE COURT: Let me make sure of this joinder.

MR. BLAIR: In addition to the motion to consolidate, which was granted, there was the defendant's motion opposing joinder of the three indictments for simultaneous trial dates. That was denied.

MR. ANGLIN: No, it was granted.

THE COURT: Granted as to one case but-MR. BLAIR: But denied as to the two burglaries.

THE COURT: To the two burglary cases.

MR. ANGLIN: Right.

THE COURT: And there was a consolidation of the two. If I recall, Mr. Anglin's concern was the trial of the third indictment jointly with the first and second indictments, and I felt that it may have been prejudicial to have allowed those three cases to be tried simultaneously, but apparently Mr. Anglin was in accord with the Court's determination to try 14,485 and 14,486, I believe those are the numbers, jointly.

So, I would deny the motion to sever.'

Thus it is clear that the basis for the motion for severance was as heretofore recited. Assuming, without deciding, that the motion for severance was timely under Rule 735, we see no abuse of discretion by the trial judge. Hicks v. State, 9 Md.App. 25, 262 A.2d 66; DiNatale v. State, 8 Md.App. 455, 260 A.2d 669.

The record does not support the statement in appellant's brief that there was a 'motion for severance and/or mistrial.' The sole reference to a mistrial upon this issue was made by the trial judge in bench discussions with appellant concerning his motion for severance, namely, 'So, the only thing the Court would do now to accommodate the defendant is to declare a mistrial, and I don't see any grounds for that. I don't have any grounds for a mistrial.' The appellant did not move for a mistrial below. That issue is not before us. Rule 1085.

We perceive no error.

2. Variance

The evidence shows that the items allegedly stolen by the appellant were owned by Nelson Lyle and his wife. The indictment had alleged that the stolen items were the property of Nelson Lyle.

The State contends that the issue was not raised below and that, under Rule 1085, it is not before us. Assuming, without deciding, that the issue was raised by appellant's motion for a judgment of acquittal as to all counts, we find no fatal variance.

Appellant cites our decision in Sizemore v. State, 5 Md.App. 507, 248 A.2d 417, relying on our statement at 512-13 (420-21):

'We think it clear that the count did not state the ownership of those goods shown to be partnership goods in the manner stated to be sufficient by the statute. While it is not necessary to name each partner, the statute requires that one be named and to state such property to belong to the one named 'and another or others.' The count here did not do so, placing ownership only in Gerhardt. But that the count did not state the ownership of the goods in the form stated to be sufficient by the statute as to partnership goods did not render the count defective. It made a proper allegation of ownership in an individual and was valid as framed. The question is, however, whether there was a variance between the allegation and the proof. That is to say, may a conviction of larceny be had under an allegation that the goods stolen were the property of Warren Jay Gerhardt on proof that the goods were the property of Gerhardt and another as co-partners. We do not think so. In Melia v. State, 5 Md.App. 354 (247 A.2d 554), we said, 'Since larceny is a crime against possession, * * * an allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as laid in the indictment is an essential factor to justify a conviction * * *.' (citations omitted) In Melia we held that there was a fatal variance when the allegation was that goods were owned by two corporations and the proof was that they were owned only by one corporation. Here the allegation was that goods were owned by one person and the allegation was not in the form stated to be sufficient as to ownership in that person and another as partners by Md.Code, Art. 27, § 605. As to those goods proved to be owned by that person and another as partners, the allegation was not sustained by the proof and there was a fatal variance.'

His reliance is misplaced. Sizemore turned upon the provisions of Article 27, § 605, ⁴ introduced into the statutory law of Maryland by Ch. 63 § 1 of the Acts of 1852. The statute has remained without amendment since that time.

At the time of the passage of the statute, the property rights of a wife were limited in the extreme, as is demonstrated by the decision in Herzberg v. Sachse, 60 Md. 426, wherein it was said at 432:

'By virtue of the marriage tie the husband, as against all persons, except the wife or her trustee, (if she have one,) is entitled to the possession of her chattels. In fact, possessing her and them, his possession is her possession. His possession, therefore, may be interfered with to his injury. This is recognized in Rogers v. Roberts, 58 Md. 519.'

The statute was intended to simplify, not to make more complex, the requisite allegations of criminal charging documents. The statute was not intended to require more complex procedural allegations as to offenses involving the property of married women. Legislative action was not necessary to simplify allegations of ownership as to such property and manifestly was not intended to require more complex allegations as to such property.

Early and late it has been said that 'it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.' Hooper v. Baltimore, 12 Md. 464, 475; Lutz v. State, 167 Md. 12, 15, 172 A. 354, 355-56. See also: Baltimore v. Baltimore Gas & Electric Co., 232 Md. 123, 192 A.2d 87.

The subsequent passaege of a married woman's property act ⁵ would not enlarge the effect of that prior statute. Annotation 2 A.L.R. 352, et seq.

In State v. Martin, 357 Mo. 368, 208 S.W.2d 203 (1948), where the information charged the larceny of ladies' rings and alleged that they were the property of the husband, the Court said at 208:

'If the rings actually belonged to both husband and wife it was still sufficient to plead ownership in him.'

To the same effect is Haley v. State, 191 S.W.2d 741, 742 (Ct. of Crim.App. of Texas, 1946).

We hold, accordingly, that the allegation of ownership in Nelson Lyle, followed by proof of ownership by himself and his wife, was sufficient under the common law. The variance between allegation and proof was not fatal.

3. Sufficiency of the Evidence

This issue is limited to the Pearson case. A jeweler in Laurel, Maryland testified that appellant and another came into his store in January, 1974 and 'showed me the ring, told me that it had come from England by a merchant seaman, and wanted to sell it.' The jeweler at first declined to purchase the ring but did so about a half hour later after the appellant had...