Felkner v. State

Citation218 Md. 300,146 A.2d 424
Decision Date24 November 1958
Docket NumberNo. 52,52
PartiesJohn FELKNER and Dewey S. Bafford v. STATE of Maryland.
CourtCourt of Appeals of Maryland

Leonard S. Jacobson, Baltimore (Irving S. Reamer, Baltimore, on the brief), for Dewey S. Bafford, appellant.

Carl H. Lehmann, Jr., Baltimore (George W. Della, Baltimore, on the brief), for John Felkner, appellant.

E. Clinton Bamberger, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., J. Harold Grady, State's Atty. for Baltimore City, Norman Hochberg, Asst. State's Atty., Baltimore, for Baltimore City on the brief), for appellee.

Before BRUNE, C. J., HENDERSON, HAMMOND and HORNEY, JJ., and W. LAIRD HENRY, Jr., Special Judge.

HAMMOND, Judge.

In the appeals of Felkner and Bafford from judgments and sentences that followed verdicts of guilty on the first count of a burglary indictment, we must reverse because there was not sufficient evidence that the breaking was with an intent to commit a felony. Felkner also was found guilty generally on two indictments charging forgery, uttering and false pretenses of and by the use of checks taken from the burglarized building. There was evidence to sustain those verdicts.

The building of the Daily Motor Express, Inc. was burglarized between closing time on the evening of November 21, 1957, and opening time the next morning. Stolen from it were a typewriter and a book of checks imprinted with the name of the express company and that of the Carlisle Trust Company, Carlisle, Pa., and numbered 771 to 1002. On the night of November 21, 1957, Felkner and another man entered a tavern in Baltimore operated by Carl Wolfarth. Felkner, who was known in the tavern, said: 'I have a check here. I wonder if you can cash it.' Felkner's companion endorsed the check and the tavern keeper cashed it. Felkner took $20 of the cash, saying it was owed him. The check was number 773 of the Daily Motor Express, Inc.

The proprietor of a grocery store in Baltimore testified that on or about November 23, 1957, Felkner bought some $30 worth of groceries for which he paid by check of the Daily Motor Express, Inc., No. 942, made out for $75.77. Felkner received the balance in cash. The witness thought, but was not entirely sure, that Felkner endorsed the check in his store, but was sure that he had written his address opposite the endorsement in the store before the check was cashed.

The bartender of the Lansdowne Inn in Baltimore County testified that on or about November 21, 1957, Bafford asked him to cash two Daily Motor Express, Inc. checks numbered 772 nd 774 for $75 each, and that three days later Bafford again asked him to cash two more Daily Motor Express checks.

Bafford told Sergeant Steinacker of the Baltimore Police Department that he waited in an automobile while some of his confederates broke into the Daily Motor Express office, and that on the following day he helped type up ten of the stolen checks on the stolen typewriter preparatory to forging them. A police department expert testified that Bafford had signed the check cashed by Felkner in the grocery store.

We first dispose of Felkner's convictions under the indictments for forging, uttering and false pretenses as to the stolen checks. He contends that there was no evidence on which he could have been found guilty of forgery or of obtaining money under false pretenses, by means of the check cashed in Wolfarth's tavern. However, he does not challenge the verdict of guilty in the matter of uttering the checks under the second count of each indictment or the verdict of guilty of obtaining money under false pretenses under the third and fourth counts of the indictment relating to the check cashed in the grocery store.

There was no contradiction that Felkner passed the check in the grocery store, knowing it to be worthless. The evidence clearly supports a finding that he participated directly in the uttering of the check in the Wolfarth tavern, and this is enough to sustain the conviction. 2 Wharton, Criminal Law, 12th Ed., Secs. 917 and 919. It is plain that he obtained less than a hundred dollars in the Wolfarth tavern by the false pretense of a worthless check he knew to be worthless, and even if he were but an accessory in the latter crime, he would be chargeable as a principal since the offense is a misdemeanor. Watson v. State, 208 Md. 210, 117 A.2d 549; Coleman v. State, 209 Md. 379, 121 A.2d 254; Code, 1957, Art. 27, Sec. 142. The utterings were felonies punishable by up to ten years' imprisonment (Code, 1957, Art. 27, Sec. 44), and the obtaining of money under the false pretense of a worthless check permits up to eighteen months if the value of the goods obtained is less than $100 (Code, 1957, Art. 27, Sec. 142). Felkner was given six months on each conviction. Since the evidence as to uttering and false pretenses was sufficient to support the general verdict of guilty, its insufficiency to prove forgery (assuming that insufficiency) would not invalidate the verdict. This Court, in Medley v. Warden, 210 Md. 649, 652, 123 A.2d 595, 596, said: 'It is a complete answer to the petitioner's contention that the proof of uttering, which is not denied, would alone support the general verdicts.'

If a sentence imposed under the general verdict of guilty under an indictment of several counts does not exceed the permissible maximum under the unchallenged counts, the accused may not successfully complain. Harris v. State, 182 Md. 27, 31-32, 31 A.2d 609.

We turn to the argument of Bafford and Felkner on the burglary charges. In form it is that the evidence was legally insufficient to convict, but in substance it is that it lacked weight enough properly to persuade the trier of the facts. Plainly there is no merit to the argument. The evidence was uncontradicted that both Felkner and Bafford possessed some of the stolen goods almost immediately after the theft and on several days thereafter. The possessor of stolen goods soon after the theft must give a reasonable explanation of how he came into possession or face the inference that he is the thief. Debinski v. State, 194 Md. 355, 360, 71 A.2d 460; Daniels v. State, 213 Md. 90, 103, 131 A.2d 267; United States v. Washington, D.C.Md.1946, 69 F.Supp. 143, 147. There were no such explanations here. Bafford's own admission made him an accomplice. Statutory burglary is a misdemeanor, and in a misdemeanor an accomplice is chargeable as a principal. Coleman v. State, supra.

The attorney general with commendable candor suggested in argument that there might be no proof of intent to steal property of the value required to sustain the conviction on the first count of the burglary indictment. The indictment was in five counts. The first charged the appellants and their confederates with breaking into the building of the Daily Motor Express, Inc. 'with intent to commit a certain felony there and therein, to wit, with the intent then and there certain goods and chattels in the said warehouse then and there being found, then and there feloniously to steal, take and carry away * * *.' The second count charged the breaking 'with intent to commit a certain misdemeanor there and therein, to wit, with the intent then and there certain goods and chattels under the value of one hundred dollars current money, in the said warehouse, then and there being found, then and there unlawfully to steal, taken and carry away. * * *' The third count charged the appellants with being rogues and vagabonds. The fourth count charged them of stealing 'One Smith Corona typewriter, of the value of Twenty dollars current money; Two hundred and thirty-one blank checks of the total value of Four dollars and sixty-two cents current money * * *.' The fifth count charged receiving of the typewriter and the checks, knowing them to have been stolen. The trial judge explicitly and specifically found Bafford and Felkner guilty on the first count and not guilty on the fifth count, but made no mention whatever of the second, third and fourth counts. This amounted to a finding of not guilty on the second, third and fourth counts. Glickman v. State, 190 Md. 516, 523, 60 A.2d 216.

Code, 1957, Art. 27, Sec. 32, makes it a misdemeanor to break into a building other than a dwelling house 'with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of the value of twenty-five dollars ($25.00) or more therefrom * * *.' Prior to its amendment by Chap. 229 of the Acts of 1943, the section made it a crime to break and enter with intent to steal or carry away the personal goods of another of any value. The 1943 amendment put the same dollar value measure in Sec. 32 of Art. 27 as at that time was in what is now Sec. 340 of Art. 27, (larceny of the goods of the value of $25 or more made a felony and larceny of goods of lesser value a misdemeanor). Chapter 18 of the Acts of 1952 amended what is now Code, 1957, Art. 27, Sec. 340, to increase the monetary measure to $100, and similarly amended what is now Sec. 342 of Art. 27 but the present Sec. 32 has not been similarly amended.

Although it seems evident that it intended the larger amount, we need not decide whether the first count of the burglary indictment in the case before us intended to charge the intent to steal goods of the value of $25 or more or of $100 or more, when it used the term 'feloniously', because there was no proof that goods of the value of $25 or more were intended to be taken. Jewett v. State, 190 Md. 289, 291, 58 A.2d 236; Hickman v. Brady, 188 Md. 103, 105, 52 A.2d 72; Barker v. Warden, 208 Md. 662, 119 A.2d 710; State v. Wiley, 173 Md. 119, 194 A. 629, 113 A.L.R. 1267.

Felonious intent is an essential element of burglary at common law and under statutes requiring such intent. The felonious intent like any other element of the crime must be proven. The proof need not be direct but may be inferred from the circumstances. The most conclusive...

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