Bennett v. State

• Decision Date: 17 December 1964
• Docket Number: No. 107,107
• Citation: 237 Md. 212,205 A.2d 393
• Parties: Anthony J. BENNETT, Jr., and Harvey E. Flynn, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 212

237 Md. 212

205 A.2d 393

Anthony J. BENNETT, Jr., and Harvey E. Flynn, Jr. v. STATE of Maryland.

No. 107.

Court of Appeals of Maryland.

Dec. 17, 1964.

Thomas J. Mooney, III, Baltimore, for appellant Anthony J. Bennett, jr.

Michael F. Freedman and Stanley J. Schapiro, Baltimore, for appellant Harvey E. Flynn, Jr.

Thomas B. Finan, Atty. Gen., Stuart H. Rome, Asst. Atty. Gen., Charles E. Moylan, Jr., and Julius Romano, State's Atty., and Asst. State's Atty., respectively, for Baltimore City, Baltimore, for appellee.

Before PRESCOTT, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

SYBERT, Judge.

In this case the State produced evidence that at about 2:45 A.M. on June 25, 1963, two men entered the taxicab of Lewis Harris in the 6200 block of Harford Road, one taking the front seat and the other the back seat. They gave a destination in downtown Baltimore. Shortly thereafter, Harris was told that the passenger in the rear desired to get out. As the taxicab was brought to a stop at the curb, the man on the rear seat reached forward, grabbed the microphone from the dispatching radio on the dashboard, twisted the microphone cord around Harris's neck, and jerked his head backward over the top of the front seat. Both passengers demanded the driver's money, and, while he was held helpless by the cord, both took approximately $28 from his pockets. They then tore the microphone cord from the radio and fled on foot. Harris testified that the attack put him in fear; that the pressure of the cord dazed him and left him unable to speak; and that the cord left a mark on his throat.

After the attack Harris encountered a police patrol car and reported the robbery, giving detailed descriptions of his assailants, which included the facts that the man in the rear seat had a mustache and the man in the front seat was wearing a hat with an exceptionally narrow brim. Policemen in a second patrol car heard Harris's descriptions relayed over the police radio, saw the appellants, Bennett and Flynn, on the street some seven blocks from the scene of the robbery, and, as the descriptions fitted the two, arrested them. Flynn had a mustache, and Bennett was wearing a hat with a very narrow brim. They had over $55 in their possession. Harris identified the two in lineup later tht day and again at their trial.

Judge Harlan, sitting without a jury in the Criminal Court of Baltimore, convicted the appellants under the first count of an indictment charging robbery with a dangerous and deadly weapon, and taking into account their prior criminal records, sentenced Flynn to ten years' and Bennett to twelve years' imprisonment. In this appeal they contend that the evidence was insufficient to support the convictions, and that the verdict was clearly erroneous because the microphone cord used in the robbery was not a dangerous or deadly weapon.

We shall consider the second contention first. Common law robbery is punishable by imprisonment for from three to ten years under Code (1957), Art. 27, sec. 486. On the other hand, sec. 488 prescribes a sentence of not more than twenty years for robbery or attempt to rob 'with a dangerous or deadly weapon'. In 3 Wharton's Criminal Law and Procedure (Anderson's ed., 1957), sec. 961, p. 111, it is said that a weapon 'is generally defined as anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat'. In discussing the types of weapons which come within the statutory condemnation of dangerous weapons, the author states (ibid., at p. 113):

'The characterof a weapon as a deadly or dangerous weapon is not necessarily determined by its design, construction, or purpose. A weapon may be deadly or dangerous although not especially designed or constructed for offensive or defensive purposes or for the destruction of life or the infliction of bodily injury. Accordingly, when a weapon is in fact used in such a way as is likely to produce death or grievous bodily harm it may be proerly regarded as a dangerous or deadly weapon. * * *'

See also 77 C.J.S. Robbery § 28, p. 467; 92 A.L.R.2d 635.

In State v. Calhoun, 72 Iowa 432, 34 N.W. 194 (1887), where an indictment for robbery charged that the defendant was armed with a dangerous weapon, the only evidence on that point was that he had a piece of cord which he used to tie the hands and feet of the person robbed. The Supreme Court of Iowa held that the jury were properly instructed that it was for them to decide whether the cord was a 'dangerous weapon', stating (34 N.W. at p. 196), 'A cord is often used as an instrument by robbers to kill or disable their victim; when so used it is properly called a weapon.' It has likewise beern held, or triers of fact have been permitted to find, that various instruments, ordinarily innocuous, have been used in such manner as to constitute dangerous or deadly weapons within the meaning of statutes relating to armed robbery. See, for example, Jones v. Commonwealth, 303...