Gunther v. State

• Decision Date: 16 May 1968
• Docket Number: No. 236,236
• Citation: 241 A.2d 907,4 Md.App. 181
• Parties: Walter Alexander GUNTHER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 181

4 Md.App. 181

241 A.2d 907

Walter Alexander GUNTHER v. STATE of Maryland.

No. 236.

Court of Special Appeals of Maryland.

May 16, 1968.

Leonard A. Briscoe, Baltimore, for appellant.

Henry J. Frankel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan Jr., and Charles A. Herndon, Jr., State's Atty. and Asst. State's Atty. of Baltimore City respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

PER CURIAM.

On August 23, 1967, appellant, Walter Alexander Gunther, was convicted of assault and battery under a three count indictment charging attempted robbery with a dangerous and deadly weapon, assault with intent to rob, and assault and battery, in the Criminal Court of Baltimore by Judge Meyer M. Cardin, sitting without a jury. He was sentenced to serve eighteen months under the jurisdiction of the Department of Correction.

Appellant raises the following questions on appeal:

1. That the court erred in permitting the State's attorney to read into the record and for the court to hear the defendant's conviction for a matter which did not affect his credibility, notwithstanding that appellant had already replied in the affirmative when asked if he had ever been convicted of a crime.

2. That the evidence in this case was insufficient to sustain the conviction.

The record discloses that on May 9, 1967, at approximately 11:00 p. m., the prosecuting witness reported to the police that at about 6 or 7 o'clock p. m. on that date, while walking in an easterly direction on North Avenue, at the corner of Poplar Grove Street, he was accosted by the appellant. The witness testified that appellant asked him for some money for a drink; that after being refused, he attempted to search the witness' pockets, and a struggle ensued; and that appellant cut the witness in the face with a screwdriver. There was testimony that the prosecuting witness and appellant knew each other from grammar school.

Appellant presented an alibi defense to the effect that he was not at the scene of the alleged crime, but was taking care of his invalid grandfather. His mother and grandmother also testified to substantiate the alibi.

Further evidence, elicited from the investigating officer, showed that the prosecuting witness told him the struggle occurred at 10:30 p. m., rather than at 6 or 7 o'clock p. m. as he had previously testified. However, the officer related that the rest of his report coincided with the prosecuting witness' testimony.

Appellant contends it was improper to permit the State's attorney to ask him, over defense counsel's objection, if he was ever convicted of malicious destruction of property. The thrust of this argument is that this particular conviction is not related to his credibility. We find no merit in this contention. In Huber v. State, 2 Md.App. 245, 234 A.2d 264, citing Linkins v. State, 202 Md. 212, at 220, 96 A.2d 246, we stated that:

'It has been held in this State that while evidence of defendant's prior convictions of crimes, other than that charged, need not be restricted to infamous crimes or crimes involving moral turpitude to be admissible, such convictions should be for law violations which may have some tendency to impeach defendant's credibility as a witness. No rigid classification of crimes seems possible. The court must exercise discretion and its decision will not be interfered with on appeal, except when the evidence is so clearly irrelevant that its admission could not be said to be within the discretion of the trial court.' (emphasis supplied.)

The fear of admitting details of convictions for prior crimes stems from its potential prejudicial influence over a jury. However, this fear is not justified in a non-jury trial where the court, by its wisdom and experience, is expected to be beyond the influence of such evidence. We are unable to conclude that the admission of appellant's prior conviction for malicious destruction of property was such an abuse of discretion and so clearly irrelevant as to constitute reversible error.

Appellant next contends that the State's...