Gover v. State, 340

• Decision Date: 19 April 1972
• Docket Number: No. 340,340
• Citation: 15 Md.App. 163,289 A.2d 601
• Parties: Walter Franklin GOVER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 163

15 Md.App. 163

289 A.2d 601

Walter Franklin GOVER, Jr. v. STATE of Maryland.

No. 340.

Court of Special Appeals of Maryland.

April 19, 1972.

Edward C. Covahey, Jr., Lutherville, with whom was William F. C. Marlow, Jr., Lutherville, on the brief, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty. for Baltimore County and Stuart E. Hirsch, Asst. State's Atty., for Baltimore County on the brief, for appellee.

Argued before MURPHY, C. J., and MORTON and MOYLAN, JJ.

MOYLAN, Judge.

The subtle but vital difference between a general criminal intent and a specific criminal intent has long intrigued academicians and has long perplexed practitioners. Upon the difference hinges the validity of the conviction of the appellant, Walter Franklin Gover, Jr., in the Circuit Court for Baltimore County by Judge John E. Raine, Jr., sitting without a jury, of armed robbery.

The robbery was bizarre. It occurred at a Seven-Eleven Store in Texas, Maryland, at about 9:30 p. m. on November 12, 1970. The appellant himself testified that he had been drunk the night before, November 11th, and that when he awoke at about 6 a. m. on the morning of November 12th, he started drinking whiskey again. His memory of November 12th was a surrealistic haze. He remembered vaguely being in a bar with one John Baron and at another time being on a church parking lot. He knew that he had had nothing to eat on the day of November 12th but that he had consumed 'eight bennies.' He recalled waking up in jail on the evening of November 13, 1970.

John Baron, a close friend, testified that he and the appellant started drinking whiskey at 9:30 a. m. on November 12th and that the appellant continued to drink whiskey and beer 'heavily' until about 6:30 p. m. At that point, John Baron drove the appellant to Church Lane, where he dropped him off. He testified that the appellant was intoxicated to the extent that he could not walk and that he was 'very drunk.'

Bennett Baron, the appellant's brother-in-law, testified that he saw the appellant in front of a tavern at 9:30 on the morning of November 12th, at which time the appellant offered Baron a drink from a bottle in his pocket. Bennett Baron stated that the appellant appeared 'high' and that he appeared to be 'high on drugs.'

Dale Tutor, an employee of the Seven-Eleven Store which was held up, testified that he approached the store at about 9:30 p. m. on November 12th and observed the appellant on the parking lot adjacent to the store. Tutor had known the appellant for a year and a half. The appellant produced a pistol, indicated that he needed $35, announced his intention of holding up the Seven-Eleven Store, and told Tutor that he should 'Beat it.' Tutor testified that the appellant, a frequent visitor to the store, 'didn't seem himself at the time.' Tutor had on a number of prior occasions seen the appellant 'loaded' and had seen him staggering up Church Lane in the morning. He testified that he was in no fear of the appellant. Tutor attempted to dissuade the appellant from the contemplated robbery, explaining to him that he could not succeed since he was well known both to Tutor and to another clerk of the store, William Gillespie. Notwithstanding that advice, the appellant entered the store with Tutor and continued in conversation with him for approximately twenty minutes, while other customers were entering and leaving the store. At one point during that conversation, Tutor told the appellant that he was 'nuts for doing it.' This noticeably disturbed the appellant who then reproduced the pistol and ordered Tutor behind the counter to get the money. Tutor complied, turning over some $150 in currency and three packs of cigarettes. The appellant then left the store.

William Gillespie, the clerk on duty on November 12th, testified that he was present when the appellant engaged in conversation with Tutor for about fifteen minutes. He stated that he had known the appellant for approximately six or seven years and that the appellant was a frequent visitor to the store. He testified that the appellant was 'drunk half of the time' and that on November 12th he was 'acting strange and was sort of glossy-eyed.' He testified as to the corpus delicti of the robbery and the departure of the appellant.

Bearing upon the appellant's state of mind, Judge Raine made the following findings of fact:

'I don't have any doubts that Gover was drunk that he wasn't acting rationally because number one, I don't even think Gover is so stupid that he could think that he's going to get away with robbing a place when he's so well known by the people that he's robbing. Here he's standing there, and everybody knows him, everybody sees him, he has no mask. He might know that the minute he walks out they're going to call the police and say not we were robbed but that Buddy Gover who lives on Church Lane has just robbed us. Nobody in his right mind would have done what Gover did, so, I am persuaded, you have made your point through Baron and the other witnesses, I think the defendant was so drunk as to be acting irrationally and it may have come from whiskey or it might have come from pills or a combination, but, I am completely convinced that his own physical and mental condition was voluntarily brought about by his excessive use of alcohol and/or drugs. It's not a defense to the charge and I don't believe that you can cite me a Maryland case involving robbery that so holds and I think that you've got to carefully distinguish the other cases, such as Bateman; I...