Darby v. State

• Decision Date: 18 March 1968
• Docket Number: No. 103,103
• Citation: 3 Md.App. 383,239 A.2d 605
• Parties: Franklin Roosevelt DARBY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 383

3 Md.App. 383

239 A.2d 605

Franklin Roosevelt DARBY v. STATE of Maryland.

No. 103.

Court of Special Appeals of Maryland.

March 18, 1968.

Howard B. Gersh, Baltimore, with whom was Feldman & Gersh, Baltimore, on the brief, for appellant.

Anthony M. Carey, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, on the brief, for appellee.

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

PER CURIAM.

The Appellant, Franklin Roosevelt Darby, was convicted of receiving stolen goods by Judge Albert L. Sklar, sitting without a jury in the Criminal Court of Blatimore, and sentenced to five years in the Maryland House of Correction.

The record indicates that on December 18, 1966, goods, including shoes, pocketbooks and an ivory colored radio valued collectively at approximately $700 were stolen from the Ideal Shoe Store located at 3112 West North Avenue in the City of Baltimore. Mrs. Fern Scotland, the operator of a nearby bowling establishment, testified that on the evening in question the Appellant entered the bowling establishment at approximately 8:45 P.M. On one arm he was carrying a number of women's pocketbooks with tags hanging from them, and in the other arm he carried a bag in which were shoe boxes with the Polly Preston brand name on them. Mrs. Scotland knew that the Ideal Shoe Store sold Polly Preston brand shoes. At Mrs. Scotland's request the Appellant left the bowling establishment only to return some ten minutes later carrying a cream-colored radio and a bag in which shoes could be seen. At Mrs. Scotland's request, the Appellant again left her establishment. Mrs. Scotland later informed police officers who were investigating the reported theft that she had seen several colored males, including the Appellant, carrying large numbers of shoes. Shortly thereafter, she identified the Appellant from a photograph at the Bureau of Identification.

Four alibi witnesses were produced by the Appellant. The Appellant's girl friend testified that she had seen the Appellant for about twenty or thirty minutes, beginning at 7:45 P.M. on the evening in question and that from 8:15 P.M. that evening to 3:00 A.M. the following morning he was in her home. The remaining witnesses placed the Appellant in the girl friend's house from approximately 8:30 or 9:00 P.M. until sometime after 11:00 P.M. that evening.

In this appeal the Appellant contends that the evidence was legally insufficient to support the lower court's finding of guilt.

Since the instant case was tried by the lower court without a jury, this Court may review the case upon both the law and the evidence. However, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 1086; Dortch v. State, 1 Md.App. 173, 229 A.2d 148; Bury v. State, 2 Md.App. 674, 236 A.2d 751....