Cooke v. State, 416

• Decision Date: 07 April 1970
• Docket Number: No. 416,416
• Citation: 9 Md.App. 303,263 A.2d 620
• Parties: Robert J. COOKE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 303

9 Md.App. 303

263 A.2d 620

Robert J. COOKE v. STATE of Maryland.

No. 416.

Court of Special Appeals of Maryland.

April 7, 1970.

Certiorari Denied June 22, 1970.

Robert J. Cooke, in pro. per.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., T. Bryan McIntyre, State's Atty., and J. Robert Johnson, Asst. State's Atty., for Carroll County, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

PER CURIAM.

On 27 November 1968 the Grand Jury for Carroll County returned an indictment against Robert J. Cooke (appellant) charging under the 1st count thereof that on 31 August 1967 he 'did feloniously embezzle from Laura Louise Shipley, Executrix of the Estate of Minnie E. Buzzard, a check in the amount of $11,314.31' in violation of Md.Code, Art. 27, § 129. He waived trial by jury and went to trial in the Circuit Court for Carroll County on pleas of (1) 'not guilty by reason of insanity at the time of the alleged commission of the crime'; (2) 'not guilty by reason of insanity at the present time'; and (3) 'not guilty.' The verdicts were that he was sane at the time of the commission of the offense, that he was sane at the time of the trial and that he was guilty of the offense charged in the 1st count.

Appellant first contends that the evidence was not sufficient to support a finding, beyond a reasonable doubt, that he was sane at the time of the commission of the offense. He had been examined by the staff at Clifton T. Perkins State Hospital and the report of the examination, under date of 24 March 1969, was admitted in evidence. It included the following:

'It was also the medical staff's unanimous opinion that Mr. Cooke did not suffer from a mental disease or defect at the time of the alleged offenses such as to cause him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.'

Dr. Robert Howard Sauer, Staff Psychiatrist at the Hospital testified: 'It was my opinion that Mr. Cooke was not suffering from a mental disease or defect of such severity as to cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.'

On this evidence we cannot say that the court as the trier of fact was clearly erroneous in determining that appellant was sane at the time of the commission of the alleged offense. Md.Rule 1086. It was the court's function to resolve conflicting evidence on the issue and the weight of the evidence was a matter for it. See Brown v. State, 8 Md.App. 462, 260 A.2d 665; Strawderman v. State, 4 Md.App. 689, 244 A.2d 888; Code, Art. 59, § 9(a). The matters urged by appellant go only to the weight of the evidence. We hold that the evidence, in law, was sufficient to support the verdict that appellant was sane at the time of the commission of the alleged offense.

Appellant also contends that the evidence was not sufficient to sustain the conviction. It appears that there was entered in evidence by stipulation that George S. Bussard died on 25 September 1962 and Minnie E. Bussard, his wife, died 8 January 1967; that appellant was the attorney of record for the Estate of George S. Bussard and that a First and Final Administration Account in said Estate was filed in the Orphans' Court for Carroll County on 16 December 1963; that the Will of Minnie E. Bussard was admitted to probate in said Court on 19 January 1967; that Laura Louise Shipley, accompanied by appellant, went to the Orphans' Court for Carroll County and qualified as Executrix of said Will and that the appearance of appellant was entered as attorney for the Estate on that date; that no inventories or accountings of any type in said Estate were thereafter filed; that 54 shares of American Telephone and Telegraph Company stock were registered in the name of Minnie E. Bussard and 168 shares of stock in said Company were registered in the names of George S. Bussard and Minnie E. Bussard his wife, as tenants by the entireties; that on 8 August 1967 a person representing herself to be Minnie E. Bussard opened an account in the Harrisburg, Pennsylvania office of Hallowell, Sulzberger, Jenks and Company, stockbrokers, and delivered to the Company the 222 shares of American Telephone and Telegraph Company stock; that on 17 August the same person personally delivered to the brokerage firm a death certificate of George S. Bussard, Letters of Administration on his Estate and a copy of the First and Final Administration Account filed therein; that she directed the 222 shares of stock to be sold at the market price; that said shares were sold for a total price of $11,314.31; that a check in that amount, dated 29 August 1967 was issued by the brokerage firm, payable to the order of Minnie E. Bussard and mailed to 'Mrs. Minnie E. Bussard, Liberty Road, Route 2, Sykesville, Maryland, 21784'; that on 2 August 1968 the brokerage firm received a telegram as sent by Laura E. Shipley stating that Minnie E. Bussard died 7 January 1967 and that the stock was not to be sold; that on 31 August 1967 appellant presented the check issued by the brokerage firm to the National Central, National Bank and Trust Company of Central Pennsylvania, Hanover, Pennsylvania; that the check had prior thereto been endorsed 'Minnie E. Bussard'; that appellant endorsed the check 'R. J. Cooke' and directed that $7000 of the total amount of $11,314.31 be applied to reduce his $10,000 personal loan at said bank and that the balance of $4,314.31 be deposited in a checking account in the name of 'Robert J. Cooke, Attorney'; that this was done; that from 31 August 1967 through 14 November 1967 17 checks in a total amount of $4,314.31 were drawn by appellant against the funds in said checking account and spent for various purposes, none of which were related to the Estate of Minnie E. Bussard; that a handwriting expert identified the signature 'R. J. Cooke' endorsed on the check issued by the brokerage firm as that of appellant and that the signature 'Minnie E. Bussard' appearing as an endorsement on that check, on an account card signed when the account was opened in the brokerage firm on 8 August 1967, and on an Affidavit of Nonresidence, and on stock assignments connected with the sale of the 222 shares of stock were written by a Nadine Bernice Frock.

Laura Shipley testified that she lived with her mother, Minnie E. Bussard, before her mother died on 8 January 1967 and that the mailing address was Liberty Road, Route 2, Sykesville, Maryland. She said that she had delivered the stock to appellant after her mother's death. Thereafter she and her son discussed the disposition of the stock with appellant and told him it was not to be sold but was to be transferred to the names of her and her son. In August of 1967 appellant telephoned her and said he had to have a letter which was at the post office addressed to her mother 'to straighten out something. So I called the post office and gave them permission to give him the letter. And I understood, the way I understood...