Fabian v. State

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; SYBERT
• Citation: Fabian v. State, 201 A.2d 511, 235 Md. 306 (Md. 1964)
• Decision Date: 19 June 1964
• Docket Number: No. 304,304
• Parties: William W. FABIAN v. STATE of Maryland.

Page 306

235 Md. 306

201 A.2d 511

William W. FABIAN v. STATE of Maryland.

No. 304.

Court of Appeals of Maryland.

June 19, 1964.

Paul Wartzman, Baltimore, for appellant.

John W. Sause, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, Andrew J. Graham and Bernard L. Silbert, State's Atty. and Asst. State's Attys., respectively, for Baltimore City, on the brief), Baltimore, for appellee.

Before BRUNE, C. J., and HAMMOND, HORNEY, MARBURY and SYBERT, JJ.

SYBERT, Judge.

After a non-jury trial in the Criminal Court of Baltimore, the appellant, William W. Fabian, was found guilty under the second, fourth and sixth counts of indictment No. 1035, charging respectively, breaking a warehouse with intent to steal goods valued at less than $100.00; larceny of goods valued at less than $100.00; and breaking and stealing goods valued at more than $5.00. (Code (1957 and 1963 Cum.Supp.), Art. 27, secs. 342, 341 and 33.) He was also found guilty under indictment No. 653, which charged assault and battery upon an infant child. He was sentenced to ten years' imprisonment on count six of indictment No. 1035, no sentences being imposed under counts two and four. A concurrent sentence of one year was imposed under the assault indictment, No. 653. Fabian appealed from both judgments.

Due to the nature of the appellant's contentions, it is necessary to set out the testimony of several witnesses at some length. With respect to indictment No. 1035, Diane Greenstreet, an 18 year old unwed mother, who lived with Fabian, testified that on the evening of January 17, 1963, while she and Fabian were in the apartment of William Phillips, Fabian instructed her to go with him to meet his sister. She said that she and Fabian, accompanied by Philip Windsor, set out to go to the place of employment of the appellant's sister, the Austin Biscuit Company in Baltimore City, but on the way they stopped at the apartment of William Glackin. When they arrived they found Glackin and Norman Barrick in the apartment. William Phillips either accompanied Fabian to Glackin's apartment or, as he testified, met him there. Miss Greenstreet stated that Fabian told Glackin and Barrick, 'I want you to do something for me * * * I want you to go up to General Crafts and break in and steal checks.' She did not state that Barrick took part in the conversation or agreed to participate in the plan. She said that when they all left the apartment, she and Fabian went to the Austin Biscuit Company where his sister worked, and sat down on a bench in front of the building to wait until she got off from work at 12:30 A.M.

The Austin Biscuit Company was said to be about two blocks from the plant of the General Crafts Corporation. While she and Fabian were waiting, Miss Greenstreet testified, Windsor kept running back and forth from the office of the General Crafts Corporation, 'four times altogether', to report to Fabian on the progress of the entry and search of the office. According to the witness, on one occasion Windsor told the appellant 'one of the boys couldn't get in and he pushed him in the window,' and on another occasion Windsor reported that 'they couldn't find nothing'. She said that after the search of the office was completed, Windsor returned to where the appellant was seated with Miss Greenstreet, and was told by the appellant to go to the apartment of one of the parties. Then, at 12:30 A.M., she said, the appellant's sister came out and the appellant had a conversation with her. Thereupon, Miss Greenstreet testified, the appellant, Windsor (who had not left), and she, then walked to the apartment mentioned--apparently Glackin's. When the appellant examined what had been stolen, and found that only office papers had been taken, he stated, according to Miss Greenstreet, that 'they were garbage and no good to him'. Subsequently, the appellant and Miss Greenstreet returned to the apartment which they shared.

Norman Barrick testified that while he was at Glackin's apartment, a person named Fabian came in with Philip Windsor and Diane Greenstreet. He said this was the only time he had ever met Fabian or Miss Greenstreet, and when asked whether Fabian was in court, he replied, 'I couldn't swear to it.' When he was asked how he knew Fabian was at the apartment, he said, 'Everybody mentioned Fabian's name. Everybody when they talked to him, said, Fabian. So, I suppose it was him.' According to Barrick's testimony, the person named Fabian offered Glackin $100.00 to get three blank checks, and Glackin agreed to get them from the office of the place where he worked, the General Crafts Corporation. Barrick stated that he left the apartment with the appellant and the others, but that he parted company with them about half a block away and went home because 'I didn't want no trouble.' There is no intimation in the record extract that he took part in any of the subsequent events that night.

The appellant's sister, Shirley Fabian, testified that when she got off from work on January 18, 1963, at 12:30 A.M., she was met by the appellant, Diane Greenstreet and Philip Windsor. She further stated that after the appellant had asked her for a loan of five dollars, she and the others walked for a few blocks, and then the appellant, Miss Greenstreet and Windsor left her. She then walked to her home nearby.

Charles Bianconi, who lived in the same apartment with the appellant and Miss Greenstreet, testified that he had stayed with Miss Greenstreet's child on the night of January 17, 1963, while she went out with the appellant. He testified that when the appellant and Miss Greenstreet returned early the next day, the appellant 'told me about hitting this place called 'Wally's", because 'he thought there might be some checks in there'.

The plant manager of the General Crafts Corporation testified that on the night of January 17, 1963, a door in the rear of the plant was jimmied open and some office records and a micrometer were stolen. While he said the records were of great value to the corporation, he placed a monetary value of five dollars on each of three missing ledgers, and estimated the value of the micrometer to be from fifteen to twenty dollars. The total value of the stolen items was given in the indictment as $18.00.

The facts underlying the assault and battery conviction under indictment No. 653 were not complicated and may be summarized briefly. The incident apparently took place early on the morning of January 18, 1963. Miss Greenstreet testified that upon finding that her two and one-half year old son had wet the bed, the appellant 'started slapping him in the face', even though the child was asleep at the time. When asked why the appellant beat the child, she replied, 'He said he didn't like him.' Charles Bianconi testified that the appellant beat Miss Greenstreet's infant son 'all the time'; however, he did not testify that he had seen the appellant strike the child at the time in question.

Acting on information supplied to them by Bianconi, Baltimore City police officers arrested the appellant on February 8, 1963, without a warrant, 'for investigation of forged checks'. He was held until February 11, 1963, when he was given a preliminary hearing in the Municipal Court of Baltimore City on a charge of assault and battery which had been placed against him by Miss Greenstreet on behalf of her infant son. At the hearing the appellant, who was not represented by counsel, pleaded not guilty. The Municipal Court judge did not proceed with the case against the appellant, but ordered that he be held for action by the Grand Jury. Code (1963 Cum.Supp.), Art. 26, sec. 109(c)(4). On March 4, 1963, the Grand Jury returned an indictment (No. 653) charging the appellant with assault and battery upon Miss Greenstreet's son. Subsequently, on March 26, 1963, the other indictment under which the appellant was convicted, No. 1035, was returned by the Grand Jury.

Preliminarily, the appellant claims that the second, fourth and sixth counts of indictment No. 1035 are inconsistent and that he could not lawfully be convicted under all three. As noted previously the trial court sentenced him under count six, but imposed no sentence under counts two and four. Thus, the failure to sentence under the second and fourth counts was tantamount to a suspension of sentence on those counts, and in such a case the appellant had the right to appeal from the convictions under counts two and four, as well as from the conviction and sentence under count six. Code (1963 Cum.Supp.), Art. 5, sec. 13; Pearlman v. State, 226 Md. 67, 71, 172 A.2d 395 (1961).

We held, in Young v. State, 220 Md. 95, 100, 151 A.2d 140 (1959), cert. den. 363 U.S. 853, 80 S.Ct. 1634, 4 L.Ed.2d 1735 (1959), that while a defendant may be convicted of a breaking with intent to steal (second count here), as well as a larceny (fourth count here), arising out of the same transaction, he may not be convicted for breaking and stealing (sixth count here) as well as for larceny (fourth count here), where the larceny consists of the same act as the stealing. See also Vandegrift v. State, 226 Md. 38, 40-41, 171 A.2d 713, 91 A.L.R.2d 507 (1961). Hence, the convictions under the fourth and sixth counts of indictment No. 1035 were inconsistent, and therefore, since sentence was imposed under the sixth count, and none was imposed under the fourth count, we will reverse the conviction under the fourth count. Young v. State, supra (at p. 101 of 220 Md., 151 A.2d 140). Cf. Marks v. State, 230 Md. 108, 185 A.2d 909 (1962). On the other hand, there was no inconsistency between the second count (breaking with intent to steal) and the sixth count (breaking and stealing), because the two offenses charged therein have separate elements (the intent in the one and the stealing in the other) and are therefore distinct crimes. See Young v. State, and Vandegrift v. State, both supra; Veney v. State, 227 Md. 608,...