Brown v. State

• Decision Date: 13 November 1964
• Docket Number: No. 40,40
• Citation: 236 Md. 505,204 A.2d 532
• Parties: William Silas BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 505

236 Md. 505

204 A.2d 532

William Silas BROWN v. STATE of Maryland.

No. 40.

Court of Appeals of Maryland.

Nov. 13, 1964.

Harper M. Smith, Rockville, for appellant.

Robert L. Karwacki, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard Kardy and James J. Cromwell, State's Atty. and Deputy State's Atty., respectively, for Montgomery County, Rockville, on the brief), for appellee.

Before HENDERSON, C. J., and PRESCOTT, MARBURY, SYBERT and OPPENHEIMER, JJ.

MARBURY, Judge.

This appeal involves the renewal in this modern day of the age old crime of 'horse thievery,' and concerns the plight of 'Bo Bo Bean Bag,' a Shetland pony, and seven of his equine companions. In August 1962, Mrs. Jacqueline S. Sehnert was the lessee of a farm, part of which fronted on Seneca Creek, in Montgomery County, on which she operated a riding school and summer camp. This equitation school was separated from a farm leased by William S. Brown, appellant, and his son-in-law, by property owned by Dr. Andrews, which was vacant at the time of the events involved in this case. On August 6, 1962, Mrs. Sehnert departed for a week's vacation, and the operation of the riding school was left in the charge of Mr. Clark Adams, a counsellor employed by her. At this time there were sixteen horses on the Sehnert farm used in connection with the riding school. She was the owner of ten of these horses.

The appeallant had been engaged with his son-in-law in the horse training and feed business for a number of years and at that time conducted this operation on the farm occupied by him. In May 1962, he had placed an advertisement in a horse dealers' journal offering brood mares for sale, and in response to its publication was contacted by Frank Dilda, a horse dealer operating in Ohio. In July 1962, Mr. Dilda vistited appellant's farm where he purchased two brood mares, and was told by appellant that he could obtain more horses of the type he wanted at a later date. Pursuant to this understanding, Dilda, accompanied by his sister, Mary Jobie, drove to Maryland on August 6, 1962, with his horse trailer. He contacted the appellant, offering to buy horses. However, Brown had been unable to obtain the type of horse in which he was interested. On August 8, the appellant did offer to sell Dilda a group of horses which he showed him in a fenced pasture adjoining Brown's barn. Dilda was not interested in any of these horses. When the appellant said that he was anxious to sell the horses but that there was no ready market for them in Maryland, Dilda then volunteered his opinion that the best place to sell them was at the Jamestown Livestock Commission Market, operated by Edwin Payne and his wife, in Jamestown, Pennsylvania, and agreed to help transport the horses to this market. Brown led the horses from the pasture where they had been grazing to his barn.

On August 9, Dilda loaded five of the horses in his trailer and the appellant placed five others in his trailer. They both proceeded to Dilda's farm in Ohio, where they arrived on August 10, and on that same day delivered the horses in the appellant's trailer to the livestock market in Jamestown, Pennsylvania. The following day, four of the horses which had been transported from Maryland to Ohio by Dilda were taken to Jamestown, it having been decided that the pony, Bo Bo Bean Bag, would be left on Dilda's farm. The appellant and Dilda were told that these nine horses would be offered for sale on August 16. Brown was indebted to Dilda in the amount of $850, and it was agreed that the horses would be sold in Dilda's name at the auction, when he would deduct from the proceeds of sale the debt owed by the appellant. Subsequently, the horses were sold producing a net return of approximately $1100.

When Mrs. Sehnert returned from her vacation on August 13, she was advised by Clark Adams that most of the sixteen horses left in his care had disappeared. Subsequent search for the animals failed to disclose their whereabouts, and Mrs. Sehnert notified the Montgomery County police, who joined in the search. In the course of this investigation, Mrs. Sehnert discovered tracks of the horses from her farm across Dr. Andrews' property to the farm operated by the appellant. Further investigation revealed that nine of the missing horses were sold on August 16, 1962, at the Jamestown Market. Through her own efforts, implemented by legal proceedings, in one instance, Mrs. Sehnert was successful in recovering four of the eight missing horses which she owned and she was apprised of the whereabouts of one more, but at the time of trial had not yet succeeded in recovering possession of it.

Both appellant and Dilda were indicted for grand larceny and for receiving stolen goods in connection with the conversion of Mrs. Sehnert's horses. Prior to the trial of appellant, Dilda was granted immunity by the State's Attorney in order to procure his testimony in support of the indictment against the appellant. On January 14, 1964, Brown was arraigned, entered a plea of not guilty, and elected a jury trial. A protracted trial of three days immediately ensued. On the morning of January 16, the trial judge stated to respective counsel that on January 15, after the conclusion of the proceedings for that day, two jurors separately approached him in his chambers, each with a request that the trial judge submit on his behalf, a question to one of the witnesses in the case so that certain testimony could be clarified. He informed the two jurors that the proper procedure was to prepare the question in written form and present it to him in open court when the trial resumed the next day. The questions of the two jurors were then received by the court before the case was submitted to the jury for deliberation. Counsel for both sides agreed that question number one had been answered by the testimony, and did not need to be answered. With regard to the second question, it was stipulated by respective counsel that the witness Dilda, having departed and being no longer available, could not offer any further testimony on the question propounded. Concerning this question, the court, without objection from either counsel, related to the jury the court's knowledge in regard to the methods by which horses are sold at auction. The jury returned a verdict of guilty on the first count, grand larceny, and not guilty on the second count, receiving stolen goods; and Brown was sentenced to eight years in the Maryland Penitentiary, from which judgment and sentence he has appealed.

Here he contends that the trial court committed reversible error by communicating in chambers with two members of the jury during the trial of the case out of the presence of the appellant; that the testimony of the alleged accomplice, Dilda, was not sufficiently corroborated; and that the evidence was insufficient to convict the appellant of the crime of larceny.

The appellant contends that Maryland Rule 775, providing that: 'The accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, * * *' was violated by the trial judge when an attempt was made by two jurors to communicate with him privately with regard to the case. We find...