Derricks v. State
Decision Date | 31 March 1970 |
Docket Number | No. 272,272 |
Citation | 9 Md.App. 261,263 A.2d 597 |
Parties | Wendall Therogood DERRICKS and Henry William Hilgeman v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
William J. Dwyer, Hagerstown, for appellants.
James F. Truitt, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., David K. Poole, Jr., State's Atty., and Lynn F. Mayers, Asst. State's Atty. for Washington County, on brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Wendall Therogood Derricks and Henry William Hilgeman, the appellants, were convicted of storehouse breaking and petty larceny in a jury trial in the Circuit Court for Washington County. Each was sentenced to a term of three years on the first charge and one year concurrently on the second charge. 1 On appeal they contend that the trial judge should have granted their motions for acquittal. We agree.
The Friendly Market is located at 124 West Franklin Street in Hagerstown. At the front of the market are two coin machines, one dispensing ice and another dispensing soft drinks. The proprietor, Percy Divelbiss, testified the ice machine was locked at night but the soft drink machine was available for use twenty-four hours a day. Immediately behind the store is a large lot two or three hundred feet in depth extending to a public alley known as Weller's Alley. Between the market and a church is a walkway which extends through to Weller's Alley. It is kept lit at night by the proprietor of the store for the benefit of his customers and tenants who live to the rear of the store. At approximately 10:45 or 11:00 P.M. on Monday, February 24, 1969, the proprietor paid an unexpected visit to the store and heard a person or persons exiting the rear door as he entered the front door. Subsequent investigation showed the store had probably been entered through a broken window; some old, but not ancient, coins in the face amount of three or four dollars had been taken and possibly some cigarettes and beer. The police were called and were around the store for the next hour or hour and a half. The proprietor and his son, who joined him later, stayed around the store to cooperate with the investigation and to repair the broken window. About 12:15 A.M. the proprietor and his son, after locking the front of the store, started down the walkway beside the store when they saw the appellant Derricks, whom they recognized from previous contacts. Derricks immediately started to run, followed by the proprietor and his son. Appellant entered an old model car parked in Weller's Alley and drove off at an ordinary and not at a high rate of speed. A description of the car was telephoned to the police. A few moments later the two appellants and Spigler were apprehended at a filling station located about three blocks away by Officer Richard Haden who testified as follows:
'Q. And will you tell the Court and Jury, please in and about when you got the information and what as a result of that that you did?
'A. Shortly after Officer Moser received the initial call from Mr. Divelbiss, and also by way of radio, I had learned that a vehicle that was believed to have been in this breaking and entering was a 1958 or '57 Blue Oldsmobile Convertible, very dirty in appearance. And also, that this vehicle was believed to have been last seen going north on Jonathan Street. I then proceeded north on Jonathan Street in the cruiser at a high rate of speed in an effort to apprehend or detain this vehicle. When I came to the Atlantic Station in the four hundred block of North Jonathan, in a telephone booth which was very well lit, and using the telephone, I observed Richard Spigler, the subject sitting on the bench there.
On cross-examination he stated as follows:
'
'
'
'A Yes, they had wallets.
'BY ATTORNEY WILLIAM DUNHAM:
James Yates testified that he was walking a little girl home about 9:00 P.M. on February 24, 1969, when he saw appellant Hilgeman and co-defendant Spigler 'just talking' in Wellers' Alley to the rear of the Friendly Market; that he saw no automobile; and that wnen he returned to the same spot about 10:00, he saw Hilgeman in about the same spot alone smoking a cigarette. On cross-examination he admitted he testified at the preliminary hearing that he saw the two defendants at 10:00 and again at 11:00 but explained that he had his times mixed up, that he now remembered the correct time because the girl's mother had told him to have her home at 10:00. He testified he had worked for the Friendly Market occasionally and helped them clean up the place.
Co-defendant Spigler testified he was driving through the alley with appellant Hilgeman when his car became flooded. Spigler walked to a nearby bar to call a friend for assistance while Hilgeman stayed near the car until Spigler returned. The bartender verified that he was in the bar and bought a cup of coffee at or about the time mentioned. Since Spigler was unable to locate his friend, he returned to the car which started immediately. As they were continuing down the alley, they saw the appellant Derricks walking through the walkway to the rear of the Friendly Market. They called to him and he joined them in the...
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