Chittum v. State

• Decision Date: 24 April 1967
• Docket Number: No. 7,7
• Citation: 1 Md.App. 205,228 A.2d 628
• Parties: Paul James CHITTUM v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 205

1 Md.App. 205

228 A.2d 628

Paul James CHITTUM v. STATE of Maryland.

No. 7.

Court of Special Appeals of Maryland.

April 24, 1967.

Robert P. Conrad, Baltimore, John W. Pfeifer, Baltimore City, on the brief, for appellant.

Donald Needle, Asst.Atty.Gen., Baltimore, Thomas B. Finan, former Atty.Gen., R. Randolph Victor, Asst.Atty.Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Elliot Goldberg, Asst. State's Atty., Baltimore, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and HARRY E. DYER, Special Judge.

ORTH, Judge.

On October 8, 1965, shortly after midnight, the appellant, Paul James Chittum, was observed by a Mrs. Betty Cox in the vicinity of the McHenry Garage located at 300 South Carey Street, Baltimore, Maryland. Mrs. Cox, sitting in the living room of her dwelling at 1314 McHenry Street, saw the appellant walk down the street with another man. When Chittum disappeared from her view, she and her husband went outside and saw him in a parked automobile, ransacking the glove compartment. He told her it was his father's car and after she told him to leave he and his companion went towards the corner where the garage was located. A short time afterwards she saw him again, walking on McHenry Street in a direction away from the garage, carrying an automobile battery in his arm. She saw Chittum's companion later, walking up McHenry Street with something under his jacket. About 3:30 a.m. the same day, Clarence Feuschenberger, owner of the McHenry Garage, reported to the police that his garage had been broken into. At the trial, Mr. Feuschenberger testified that the lock had been broken off the garage door and tools, batteries and equipment valued in excess of $700 had been taken. Chittum was arrested. He was identified by Mrs. Cox, from Bureau of Identification pictures, in a lineup, and at the trial, as the person she had seen near her house and later carrying the battery.

The police recovered the battery from an automobile belonging to Chittum's father. It was identified as a battery taken from the garage. A statement give by Chittum to the police was introduced into evidence without objection. He admitted entering the parked car but said he was walking up the street when his companion came up with the battery and gave it to him. He took it, went home and put it in his father's automobile. About an hour later his companion came to his house with some tools that he got at McHenry Garage. Chittum told the companion that he wanted nothing to do with the tools as they were marked and the "man could tell them."

[1-3] Judge Shirley B. Jones, sitting in the Criminal Court of Baltimore, without a jury, found appellant guilty under the first count of the indictment, of breaking into the garage with intent to steal goods of the value of $100 and upwards, (Md.Code, [1957], Art. 27, sec. 32); under the third count--breaking into the garage and stealing goods of the value of $5.00 and upwards (Code, Art. 27, sec. 33), and under the fourth count--rogue and vagabond (Code, Art. 27, sec. 490). Judge Jones could have found from the evidence (as she indicated she did) that the garage had been broken into on October 8, 1965, that the battery and other goods in excess of $100 had been stolen therefrom, that Chittum was in exclusive possession of the battery immediately thereafter, and that he broke into the garage and stole the articles. The trial judge was under no obligation to believe the defendant's denials or explanations. Ponder v. State, 227 Md. 570, 177 A.2d 839. Applicant's possession of a recently stolen article supports a credible inference that he was the burglar. Anglin v. State, 244 Md. 652, 224 A.2d 668, citing McNamara v. Henkel, 226 U.S. 520, 33 S.Ct. 146, 57 L.Ed. 330; Lewis v. State, 225 Md. 474, 171 A.2d 244. As the Court of Appeals said in Anglin, 244 Md. page 658, 224 A.2d page 671,

"The Supreme Court, early and lately, has rejected the claims made here by appellant as to the impermissibility of allowing a trier of fact to infer from a proven fact which is not satisfactorily explained by the accused an ultimate fact which may be sufficient evidence of guilt".

The test of the sufficiency of the evidence is set forth in Jones v. State, 242 Md. 323, 328, 219 A.2d 77, 79:

" 'Proof of guilt beyond all possible doubt has never been required in criminal cases, and it is thus "not necessary that every conceivable miraculous coincidence consisent (sic) with innocence be negative." Hayette v. State, 199 Md. 140, 144, 85 A.2d 790, 792. The test to be used by this Court in a case such as the instant one was succinctly put in Kucharczyk v. State, 235 Md. 334, 337, 201 A.2d 683, 684, quoting from Ponder v. State, 227 Md. 570, 572, 177 A.2d 839, in the following manner:

" '*** the test of the sufficiency of the evidence in a case tried before the court without a jury, when reviewed in this Court, is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged' ".

The appellant's contention on this appeal goes to the sufficiency of the evidence. We conclude that this test was fulfilled and affirm the judgment as to the first and third counts of the indictment.

We shall now consider the verdict of guilty under the fourth count of the indictment charging the offense of rogue and vagabond. As appellant was not apprehended having upon him an implement or offensive weapon as designated in the statute, his being deemed a rogue and vagabond is dependent on his being found "in or upon any *** warehouse ** with an intent to steal only goods ***", Md.Code, (1957), Art. 27, § 490.

There appears in the opinion by Judge Stedman Prescott in the case of Veney v. State, 227 Md. 608, 611-614, 177 A.2d 883, a learned discussion of the proposition of merger of offenses. Pointing out that it is important to bear in mind the difference between the common-law doctrine of merger of offenses and the more modern concept of merger, which is allied to such closely affiliated titles as "Identity of Offenses," "Divisibility and Merger of Offenses," and "Former Jeopardy" used by some authors, when writing upon the subject, he states, page 612, 177 A.2d page 886,

"As the reasons, or bases, for the common-law doctrine have long since ceased and disappeared, most jurisdictions, apparently applying the principle of cessante ratione cessat lex, have either abolished the common-law doctrine, or abrogated the rules of procedure founded upon it; and this is unquestionably true in Maryland. Code (1957), Article 27, Section 607; Gilpin v. State [142 Md. 464, 121 A. 354] and Williams v. State [205 Md. 470, 109 A.2d 89], both supra; Klein v. State, 151 Md. 484, 135 A. 591. But this does not mean that the later and more modern concept of merger of offenses, whether it be considered under such terms as 'double jeopardy,' 'merger,' or 'divisibility of offenses,' fails to play an important role in criminal prosecutions today. For, as this Court pointed out when it quoted R.C.L. in Gilpin, supra (142 Md. p. 469, 121 A. p. 356) to the effect: ' "It [common-law merger] has no application where both crimes are misdemeanors or both are felonies though one may be of a much graver character than the other, and punishable with much greater severity; but in such a case another principle applies; that is, if the lesser felony [or offense] is a necessary ingredient of the other, a conviction of one will bar a prosecution for the other by virtue of the twice in jeopardy rule. ***" ' " See also Williams v. State, supra.

"Decisions and text-writers use various methods and formulae for testing whether one criminal episode merges and extinguishes another, but, when analyzed, they, in general, boil down to the rule as just stated in Gilpin, supra. 22 C.J.S. Criminal Law § 10, states the true test of whether one criminal offense has merged into another is held to be not whether the two criminal acts are...