Gregoire v. State

• Decision Date: 08 January 1957
• Docket Number: No. 52,52
• Citation: 128 A.2d 243,211 Md. 514
• Parties: George Norman GREGOIRE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 514

211 Md. 514

128 A.2d 243

George Norman GREGOIRE v. STATE of Maryland.

No. 52.

Court of Appeals of Maryland.

Jan. 8, 1957.

Emmett H. Nanna, Jr., Hyattsville (Donald R. Brenner, Washington, D. C., on the brief), for appellant.

Alexander Harvey, II, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Blair H. Smith, State's Atty., and John W. Mitchell, Asst. State's Atty., Prince George's County, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

COLLINS, Judge.

This is an appeal by George Norman Gregoire, appellant, from two appeals in one record from two separate convictions on criminal charges, by the trial judge sitting without a jury. The two cases were tried separately, one following the other.

The indictment in one case charges the appellant on December 10, 1955, with unlawfully committing a certain unnatural and perverted sexual practice with a boy whose first name is Victor. In the other case the appellant was charged on December 18, 1955, with the same offense with a boy whose first name is David.

David testified at the trial of the case on May 3, 1956, in which he was the prosecuting witness in the first case tried, that he was fourteen years of age and in the ninth grade at school. He identified the appellant in court and stated that a week before Christmas, 1955, he was walking on 65th Avenue about 1:30 P.M., and saw the appellant turn his automobile around and come up 65th Avenue. He stopped and asked David whether he knew the location of a certain street. He then asked him whether he would ride there with him and show him where it was. As David had nothing to do, he got in the car with the appellant. Appellant turned on Central Avenue and went the wrong way. He told appellant that he was going the wrong way but appellant turned to go to Addison Road, then to Ritchie Road, and onto Walker Mill Road. As appellant went down the road he told David he had had a fight with his girl and she was supposed to do something to him. Appellant then drove into a side road in a wooded area just a little way off Walker Mill Road and 'unzippered' David's pants and committed an act of oral perversion. He was too scared to run away. The appellant did not abuse him or hurt him in any way. He made no objection to anything that appellant did, although he knew it was wrong. He said he was afraid of the appellant because he did not know what he was going to do. He was just 'scared stiff'. Appellant did not tell David his name and the next time David saw him was in the police station. After the act was committed both David and the appellant 'had to go to the bathroom'. Both got out of the car but David said he was too scared to run. Appellant took him back to Central Avenue and let him out of the car. David then walked behind the car and got the license number, 1955 Maryland registration JF-4242, and remembered that it was a blue and white two door Mercury. He then went home, called the police station and, with the registration number, asked about the owner of the car. He said he was still too scared to tell his mother so he went to the movies. After he got home he told his mother about it and she called the police. He and his father went to the police station that night and he identified the appellant there. When asked whether he could have gotten away at the time, he answered that he 'might have been able to'.

Officer George Whitlow, of the Prince George's County Police Force, said he first met David at about 7:40 P.M. on December 18, 1955, at the boy's residence. He first saw the appellant on the morning of the 19th, shortly after midnight in the appellant's residence. His automobile was a 1955 Mercury, two door hard top, blue and white in color, with 1955 Maryland registration JF-4242. He was at the police station when David identified the appellant. He said David had described to him a 1955 Mercury two door automobile, blue and white in color and 'gave me a tag number of a 1955 Maryland registration, JF-4242.'

In the other case, Victor testified that he was thirteen years of age and would be fourteen on July 25, 1956, and was in the seventh grade at school. He pointed out the appellant in the court room. He saw him first on December 10, 1955, on 57th Avenue, Hillside, about 6 or 7 P.M., when it was just turning dark. He had been hitchhiking and had started walking. The appellant passed him and stopped and told him that he had seen him hitchhiking and asked whether he wanted a ride. Victor answered: 'Yes'. Appellant was driving a blue and white 1955 Mercury with two doors and two seats. Appellant asked him where he was going and he told appellant he was going to Capital Heights to see a boy named Gribble. Appellant told him Gribble had gone to a party and he knew where the party was. They drove up Addison Road and appellant started talking about 'some guys overseas and was playing with my leg'. Appellant turned down Walker Mill Road 'and started playing' with him. As they went on they passed a house and appellant said the party was not there. He then went in a private driveway in Prince George's County and committed an act of oral perversion. Appellant then drove the car to M and 57th Streets where Victor told him to let him out, and he then went home. When asked what he was doing when all this was going on, Victor said he was scared and did not do anything. He was afraid because he did not know whether appellant had a knife, or whether he was going to kill him, or what he was going to do, he was just scared. He did not say anything to appellant because he was scared. He had never been involved in anything like that before. About two weeks later his cousin, Butchie, told him the same thing had happened to David and also told him that David was going to court. He told David about it on the way from school and David said he would tell his mother to tell Victor's mother. He then went home and about 6:30 that evening David's mother called his mother and came to his house and explained to his mother what had happened. They then went to the police station and signed a statement. This resulted in the court action. The police brought him five photographs of men, and he identified one of the photographs to be that of the appellant. On cross-examination he stated that he made no effort to get away from the appellant and appellant was not abusive to him. He was not forced. He had previously testified that he was afraid of the appellant. He did not try to get out of the car because he did not have a chance to do so. The reason he waited two weeks was because he was ashamed. During his cross-examination he said the appellant picked him up about 10:30 P.M. on December 10, 1955, instead of 6 P.M. as he previously testified. He recalled that his father had earlier that evening brought him home from bowling.

Detective Sergeant Nally, of the Prince George's County Police Force, said he first saw Victor on January 12, 1956. He showed him five photographs and Victor identified the appellant in one of them. Victor told the officer that the reason he had not told his mother was because he was afraid.

At the close of the State's evidence in each case the appellant filed a motion for a directed verdict of not guilty on the ground that the evidence was legally insufficient to justify his conviction. The appellant presented no evidence. These motions were denied and the appellant was found guilty in each case. From the verdicts and sentences appellant appeals. Appellant claimed below and here that the motions should have been granted because both David and Victor were accomplices and that he should not be convicted on their uncorroborated testimony.

Code 1951, Article 27, Section 627, provides in part: 'Every person who shall be convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than One Thousand Dollars ($1,000.00), or be imprisoned in jail or in the House of Correction or in the Penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the Court.'

In Anello v. State, 201 Md. 164, 168, 93 A.2d 71, 72, where the appellant was convicted of larceny of use of property which was a misdemeanor, it was said: 'It is clear that no one, whether principal perpetrator or aider or abettor, can violate this statute unless he possesses criminal intent. The legal definition of the word 'aider' is not different from its meaning in common parlance. It means to assist, support or supplement the efforts of another. The word 'abettor' means in law one who instigates, advises or encourages the commission of a crime. Thus the word 'abet' may import that one is present at the commission of a crime without giving active assistance. Creasy v. Commonwealth, 166 Va. 721, 186 S.E. 63; State v. Epps, 213 N.C. 709, 197 S.E. 580; State ex rel. Martin v. Tally, 102 Ala. 25, 15 So. 722, 737; State v. Western Union Telegraph Co., 13 N.J.Super. 172, 80 A.2d 342, 355. * * * To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential that one should in some way advocate or encourage the commission of the crime. McKinney v. Commonwealth, 284 Ky. 16, 143 S.W.2d 745.' It was said in Seward v. State, 208 Md. 341, 347, 118 A.2d 505, 507: 'In State ex rel. Wisconsin Development Authority v. Dammann, 228 Wis. 147, 277 N.W. 278, 280 N.W. 698, the Supreme Court of Wisconsin held that the word 'encourage' had no technical...