Debinski v. State
| Decision Date | 08 February 1950 |
| Docket Number | 32. |
| Citation | 71 A.2d 460,194 Md. 355 |
| Parties | DEBINSKI v. STATE. |
| Court | Maryland Court of Appeals |
Edgar Paul Boyko, Baltimore (Mandel & Jeffrey Baltimore, on the brief), for appellant.
Court declined to hear argument (Hall Hammond, Atty. Gen., Kenneth C. Proctor, Asst. Atty. Gen., and Daniel M. Murray, Jr. State's Atty. for Howard County, Ellicott City, on the brief), for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.
On March 22, 1949 the Grand Jury for Howard County returned an indictment against Roy F. Debinski (appellant) and Donald J. Wersten. This indictment contained three counts, the first of which charged the traversers with breaking and entering, with intent to commit a felony, the storehouse of Sidney O. Marcus; the third count charged the traversers with breaking a storeroom of Marcus and taking therefrom various goods and chattels specified; the second count charged the traversers with grand larceny. 1947 Supplement to Code, Art. 27, secs. 34 and 35; 1939 Code, Art. 27, sec. 387. Neither the first nor third count in the indictment charged a felony, but charged a misdemeanor. Bowser v. State, 136 Md. 342, 110 A. 854. The second count was based on section 387, Art. 27 of the Code, and charged a felony. It was proper to join the crimes charged in the respective counts in this indictment. Bowser v. State, supra; See Hickman v. Brady, 188 Md. 103, 52 A.2d 72.
The defendants were arraigned; pleaded not guilty; demanded a trial before the court; found guilty and sentenced, from which judgment and sentence Debinski appealed. Wersten did not appeal.
The facts of the case are as follows: Mr. Marcus, trading as West Friendship Garage, conducted a store at West Friendship, Howard County, Maryland. On February 5, 1949, around 9 P.M., he closed his store for the day. On February 6th, at about 7:30 A.M., he went to his store for the purpose of opening if for business, and discovered that entry had been made into the store through a window, which had been forced open, and various articles (named in counts two and three of the indictment) had been taken from the store. There was found at the store a flashlight which contained the left thumb print of Wersten. Debinski and Wersten, on February 5, 1949, rented an automobile from the Gray Line U-Drive. Its place of business is located at 1024 Linden Avenue, Baltimore, Maryland. The rental was for twenty-four hours, and the car was returned by them on February 6th, 1949. Mr. Schaffer, the manager of Gray Line U-Drive, testified that he knew both traversers, and that they came to his place together and hired the car, and were together when they returned it. The testimony shows that the appellant was arrested in Baltimore City on February 15, 1949. He was searched at the Southwestern Police Station and there was found on him by the police a receipt in the name of 'John Miller', which gave the address of 1324 Hollins Street. The police went to that address and searched a room which the traverser occupied and found a Motorola radio in a cardboard carton which was addressed to 'West Friendship Garage, West Friendship, Maryland'.
The appellant contends that the thumb print of Wersten, found on the flashlight; the Motorola radio which the police found in the room at 1324 Hollins Street; and the testimony that the traversers rented the automobile on February 5th and returned it on February 6th, was inadmissible. West. Friendship is quite a distance from 1024 Linden Avenue, Baltimore, Maryland, where these men rented this car. It is not to be supposed that they tramped from Baltimore City to West Friendship. It was competent for the State to show the means of transportation the defendant used from Baltimore to the scene of the crime; and the possession of the automobile explains how the stolen property was transported from the store. It is highly improbable the traversers could have personally carried away all the loot taken from the store. That Wersten was in the store at the time it was broken into and robbed is definitely shown by his thumb print on the flashlight. So that the thumb print on the flashlight, and the rental of the automobile, were not only proper evidence but strong evidence to connect these traversers with the crime.
The appellant objects to the introduction in evidence of the Motorola Radio which was found by the police in the room at 1324 Hollins Street, which room he admitted to the police he rented, because the radio was not recently stolen. We decline to set up a period of limitation to determine whether or not possession of stolen goods is or is not recent, but we do say that an article in one's possession nine days after it was stolen is a recent possession. The law is clear that recent possession of stolen goods is evidence of guilt of the possessor and casts the burden on the possessor of such stolen goods to give a reasonable explanation of how he came into its possession.
'It has long been a well established rule of evidence in a criminal charge of larceny that recent possession of stolen goods gives rise to a presumption that the possessor is the thief.' United States v. Washington, D.C., 69 F.Supp. 143, at page 147, and authorities there cited; State v. Weston, 9 Conn. 527, 25 Am.Dec. 46; State v. Raymond, 46 Conn. 345. The appellant's explanation of his possession of the Motorola radio was that he won it in a craps game. The judge evidently was not impressed with his explanation.
It is suggested by the appellant that the second count in the indictment, which charged larceny, and which is a felony, was put in the indictment for the purpose of offering testimony of what was found by the police in their search of the traverser's home. He contends that a review of the evidence in the case shows that the appellant could only be found guilty under the first or third count, which respectively charged a misdemeanor; that a search of the appellant's room therefore, was illegal because it was made by the police without a search...
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