Hale v. State

• Decision Date: 02 October 1968
• Docket Number: No. 39,39
• Citation: 245 A.2d 908,5 Md.App. 205
• Parties: Franklin D. HALE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 205

5 Md.App. 205

245 A.2d 908

Franklin D. HALE v. STATE of Maryland.

No. 39.

Court of Special Appeals of Maryland.

Oct. 2, 1968.

Robert V. Lazzaro, Towson, for appellant.

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

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

PER CURIAM.

The appellant was found guilty at a trial by the court in the Criminal Court of Baltimore of storehouse breaking with intent to steal goods of the value of $100 and upwards and sentenced to imprisonment for a term of 7 years to run concurrently with a sentence he was then serving. ¹ On appeal from the judgment he contends that the evidence was not sufficient to sustain his conviction and that his arrest was illegal.

The corpus delicti of the crime was proved by a stipulation that Louis Patti would testify that he was the owner of the storehouse designated in the indictment; that he closed the storehouse about 9:30 P.M. on 14 September 1967; that all the windows and doors were secured; that the inventory therein was in excess of $100; that he was notified to come to the storehouse later that evening and when he did so found that the front door had been forced open; that a safe of the value of $50, containing $2268 had been taken from the premises; and that the safe and money had been subsequently recovered.

Evidence adduced at the trial showed that Richard Wood, who was in his house about a block from the storehouse, heard a loud noise the evening of 14 September. He went to the door and saw somebody run down the street, get in a white 1959 Chevrolet convertible, double parked directly across from his house, and drive away. A few minutes later he saw the car 'parked right at the side door' of the storehouse. The door of the storehouse was ajar and 'it was four fellows there, they dropped something into the trunk of the automobile.' They were white men. They closed the trunk, two of them left in the automobile, two of them ran down the street. Although it was nighttime, there was 'a big light.' He called the police relating what he had seen and giving a description of the car. He was not able to identify the men nor did he obtain the license number of the car, but he identified a photograph as that of the car he saw.

Officer Ned K. Schleig received a call about 10:42 P.M. on 14 September and arrived at the scene about 30 seconds thereafter. He talked to Wood, who was familiar with the storehouse, checked the building, observed that a safe usually behind a counter was missing and got a description of the car from Wood and learned from Wood that he saw three white men putting something in the trunk, one got in the passenger side of the car which then drove away and two of the men ran. He had stopped a 1959 white Chevrolet convertible about 8:45 P.M. that evening in the vicinity of the storehouse and noted the license number-EW 9188. At that time Hale was driving the car and Skarzinski and Savalino were passengers. He put a description of the car and the license number on the police radio and at 11:00 P.M. received a call that the car had been stopped. Officer Edmund Lubinski, acting on information he had received on the police radio, stopped a 1959 Chevrolet convertible, license No. EW 9188 about 10:42 P.M. at Boston and Aliceanna Streets, approximately 6 blocks from the storehouse. ² Skarzinski was operating the car, and Hale was in the right front seat, Bona was in the left rear and Savalino in the right rear. They were arrested and the car was searched. A blank starter pistol, a crowbar, a maul wrapped with masking tape and a safe (later identified by the owner of the storehouse as the one taken from his premises) were found in the car. The safe was opened at the police station and found to contain $2268. The records of the Department of Motor Vehicles showed that the automobile was titled in the name of Franklin Delano Hale.

On appeal Hale raises the question of the legality of his arrest, although he states that the question was not raised below. We see from the record, however, that Hale's attorney made objection to the introduction in evidence of the articles found in the automobile. As the articles seized were properly admissible only if the search by which they were obtained was reasonable, and as the search here would be reasonable only if incident to a legal arrest, the question is properly before us. See Md. Rules, 729 c; McCarthy v. State, 2 Md.App. 400, 234 A.2d 767; Randolph v. State, 1 Md.App. 441, 230 A.2d 688. cf. Gaudio and Bucci v. State, 1 Md.App. 455, 230 A.2d 700. While it would have been better had the State offered evidence of the information contained in the police lookout on the issue of probable cause for the arrest when objection was made to the admission of the articles seized, we think that the evidence before the court was sufficient for the court to find that the arrest was legal. The police had knowledge that the storehouse had been broken, that a safe usually on the premises was missing, that four white males were seen at the scene of the breaking putting something in the trunk of a 1959 white Chevrolet convertible, and that a car of this description had been seen earlier that evening bearing license tag No. EW 9188. Minutes after a lookout, including the description of the car and the license number, was placed on the police radio network, the car, in which were four white males, was observed about 6 blocks from the scene of the crime by an officer who had received the lookout. He arrested the occupants of the car, one of whom was the appellant. We think that the arresting officer had probable cause to believe that a felony had been committed and that the arrestees committed it. Robinson v. State, 4 Md.App. 515, 243 A.2d 879. The arrest was therefore legal, the search of the car incident thereto was reasonable and the evidence seized was admissible. Watts v. State, 3 Md.App....