Gray v. State, 132

Citation271 A.2d 390,10 Md.App. 478
Decision Date01 December 1970
Docket NumberNo. 132,132
PartiesRonald GRAY v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Edwin H. W. Harlan, Jr., State's Atty., Harford County, on brief, for appellee.

Argued before THOMPSON, ORTH, and MOYLAN, JJ.

ORTH, Judge.

The conviction of Ronald Gray of the robbery of Howard M. Smith, Sr., rendered by a jury in the Circuit Court for Harford County, and the sentence of 10 years imposed thereon are affirmed. His conviction of assaulting and beating Mr. Smith and the consecutive sentence of 5 years imposed thereon are vacated; in the circumstances here the offense of assault and battery merged into the conviction of robbery.

MERGER OF OFFENSES

Robbery, a common law offense in Maryland, is grand or petit larceny from the person of another by violence. 1 The violence may be actual as by the application of physical force or constructive as by the putting in fear. It is only in the absence of actual violence that putting in fear is required. Conversely, if actual violence accompanies the larceny, it is not necessary that the victim be placed in fear. Giles v. State, 8 Md.App. 721, 723, 261 A.2d 806. See Wiggins v. State, 8 Md.App. 598, 603, note 2, 261 A.2d 503. To constitute robbery, the actual or constructive violence must precede or accompany the larceny. Cooper v. State, 9 Md.App. 478 This Court has consistently applied the modern doctrine of merger of offenses, the test being whether one crime necessarily involves the other. Chittum v. State, 1 Md.App. 205, 228 A.2d 628. So if an accused is convicted of both the robbery and the assault and battery of a person and the proof of the assault and battery was necessary to establish the force required to constitute robbery the assault and battery would merge into the robbery. We recognize that a person should not be twice punished for the same acts. 2 This would come to pass if the assault and battery were part of the res gestae of the larceny.

480, 265 A.2d 569. See Douglas v. State, 9 Md.App. 647, 653, 267 A.2d 291. 'Blackstone, to emphasize that for robbery the larceny must be accomplished by violence or intimidation, said: 'for if one privately steals [271 A.2d 393] sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent Law, 2d Ed., p. 283, quoting 4 Bl.Comm. Law, 2d Ed., p. 283, quoting ' Bl.Comm. 242. So if the two transactions are essentially distinct-if subsequent to the larceny the owner should come upon the thief and be prevented from retaking his property by violence, the thief would be guilty of larceny and assault, but not robbery. In other words if the violence, actual or constructive, is part of the res gestae of the larceny the offense is elevated to the category of robbery. Id., at 248. See Clark & Marshall, Law of Crimes, 7th Ed., § 12.13, pp. 890-891; 2 Wharton's Criminal Law and Procedure (Anderson), § 559, pp. 263-265.

Howard M. Smith, Sr., 'a retired government agent,' helped his wife operate a 'little grocery store' located on the premises in which they lived in Havre de Grace. On 29 July 1968, about 5:30 P.M., his wife was in the kitchen with a neighbor and he was reading a paper in the living room. The opening of the door to the store activated a device which sounded a buzzer in the kitchen. Smith heard the buzzer 'go off' and went into the store. At first he did not see anyone-'as a rule some of the smaller kids, they hide in back of the counter'-so he walked back of the counter toward the cash register. He saw two people. One 'was creeping out there' towards the store entrance. The other was 'stooped down' in front of the cash register and he 'raised up and conked me.' Smith was hit twice about the head with what appeared to be a piece of garden hose stuffed with lead. He was knocked unconscious by the blows and the next thing he remembered was being in the hospital. 'My both jaws were broken and I couldn't see, couldn't swallow.' He spent three weeks in the hospital. Over $200 was stolen. Mrs. Smith went into the store from the kitchen when she heard the continuous buzzing of the warning device. Her husband was on the floor unconscious; the robbers had fled.

We find this evidence sufficient in law to establish the corpus delicti of the robbery. 3 We so find because we believe that it was a rational inference that the assault on Smith and the beating of him constituted the violence which accompanied the larceny of the money and elevated the offense to robbery. This was the only assault and battery of Smith shown, and it was necessarily part of the res gestae of the larceny. Therefore upon conviction of the robbery, the assault and battery merged therein and the judgment under the 5th count of the indictment must

be vacated. The result is that appellant is subject to a term of imprisonment of 10 years rather than 15 years.

EVIDENCE OF IDENTIFICATION

Smith made a positive judicial identification of appellant as the felon who struck him. This evidence came in without challenge. On cross-examination it was elicited that he had made an identification of appellant from photographs shown him by the police while he was in the hospital. He said he only remembered seeing three pictures of the three people who were involved but he remarked that 'I was just under the dope that they gave me for pain and I really never paid too much attention to them.' On re-direct examination he said that he knew that appellant was the one who hit him and that there was no question at all about it.

Appellant called Sergeant Warner L. Taylor, of the Police Department in Havre de Grace. The officer said he did not show Smith photographs in the hospital but did show them to him on 4 September 1968. There were six photographs. 'I showed him the photographs all at one time and he picked number one photograph as the-he said that that was the one that beat him. The subject's name on the photograph was Douglas McAndrew Brooks. He picked out photograph number six as the one that took the money from the cash register. Number six photograph was Ronald Gray. * * * I picked photographs out that were fairly close together.' He obtained them from the police files and we think it obvious when he said he picked out those 'that were fairly close together' that he meant those which depicted men who resembled each other. The officer described Smith's appearance in September: 'He was still in a considerable amount of pain. Both sides of his jaw was still wired up at that time. A considerable amount of swelling had went down in his face, but his eyes were still-he gave the appearance of a severe beating.' 4 On further examination of the officer it was clearly brought out that Smith had identified appellant as being in the store when the robbery was committed.

Appellant now contends that the in-court identification of him by Smith was inadmissible because it was tainted by an illegal photographic identification procedure and because the State was unable 'to reconstruct the original photographic identification.' Not only was there no pre-trial motion to suppress the evidence now challenged and no objection when it was received, but there was no motion to strike it when it became apparent that there had been an extra-judicial identification from photographs. Therefore the question of the admissibility of the judicial identification is not before us. And there is no question presented as to admissibility of any extrajudicial identification since this was not introduced by the State as corroborative of the judicial identification or as independent substantive evidence of identification. See Smith and Samuels v. State, 6 Md.App. 59, 250 A.2d 285. That there had been an extra-judicial identification was properly brought out by appellant, but the facts and circumstances concerning it went only to the credibility of the identifying witness and to the weight of his judicial identification rather than its admissibility. The credibility of the witness and the weight to be given his judicial identification were matters for the jury.

Appellant did not make an issue below of the fact that the photographs had been lost. Not tried and decided below on the question of the admissibility of the judicial identification, the matter is not before us on appeal. Maryland Rule 1085. However, in the circumstances, we do not think that the loss of the photographs would compel the exclusion of the judicial identification. The evidence adduced indicated that the photographic viewing procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and that it was legally conducted. And it may be, although we need not decide it, that the judicial identification was shown to have a source independent of the extra-judicial viewing in any event.

THE ADMISSION OF THE STATEMENT OF A WITNESS

Appellant was jointly indicted with one Oran Thomas. He was separately tried and found not guilty at a bench trial had prior to the trial of appellant. At appellant's trial he was called to testify on behalf of the State. He said he went to Smith's store with appellant and a Ronnie Sconion on 29 July 1968 about 5:30 P.M. Sconion and appellant went in the store. He did not know why they went in the store and he left before they came out, going to the Duck-'The Duck in Youth Club on Revolution Street.' Appellant and Sconion came to the Club and then the three of them went to Aberdeen by bus and caught a cab to Perryman where Sconion lived. They went to a shack in the woods and 'we just counted the money.' Thomas did not get any. Then they went to Sconion's house, remained...

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