Ham v. State, 415

• Decision Date: 12 August 1969
• Docket Number: No. 415,415
• Citation: 256 A.2d 362,7 Md.App. 474
• Parties: Matthew HAM, Ronald Rufus Lee, Kenneth Bailey, and Edmond E. Cole v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 474

7 Md.App. 474

256 A.2d 362

Matthew HAM, Ronald Rufus Lee, Kenneth Bailey, and Edmond E. Cole v. STATE of Maryland.

No. 415.

Court of Special Appeals of Maryland.

Aug. 12, 1969.

Jack E. Richards, Baltimore, for Bailey; with Robert R. Cohen, Baltimore, on brief.

Lee N. Sachs, Baltimore, for Ham.

Frank Cannizzaro, Jr., Baltimore, for Lee.

Leonard S. Freedman, Baltimore, on brief, for Cole.

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

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

MURPHY, Chief Judge.

Appellants Bailey, Cole and Lee were jointly indicted and subsequently convicted by the court sitting without a jury of four robberies with a deadly weapon. They were each sentenced to concurrent five-year terms for the robberies of Howard Rogers (Indictment #4766) and Rachael Crowther (Indictment #4767) in the Hilltop Bar on September 6, 1967; and to consecutive terms of fifteen and five years for the robberies of Ellwood Daly (Indictment #4765) and Serg Padnuk (Indictment #4768), respectively, in Pat & Woody's Bar on September 7, 1967.

Appellant Ham was also jointly charged under the same indictments with Bailey, Cole and Lee and at their joint trial initially pleaded not guilty. After the State produced testimony of Ham's involvement in the crimes, he withdrew his not guilty plea and, after the other appellants were convicted, he pleaded guilty to having robbed Howard Rogers (Indictment #4766). The other indictments were then stetted, and he was sentenced to fifteen years under the jurisdiction of the Department of Correction.

The State's evidence at the trial showed that at approximately 10:30 p. m. on September 6, 1967, the Hilltop Bar in East Baltimore was held up at gun point by three youths, during which Howard Rogers, the bartender, and Rachael Crowther, a patron, were robbed. The evidence further showed that at approximately 12:30 a. m. on September 7, 1967, Pat & Woody's Bar was also held up at gun point by four youths and the owner Serge Padnuk and a patron Ellwood Daly robbed at that time.

Bailey, Cole and Lee each contend on this appeal that the evidence was insufficient to support any of their respective convictions.

The Evidence Against Bailey

Al Quattlebaum, a fourteen year old boy, who had been tried as a juvenile in connection with his participation in the robberies, testified for the State that in the early evening hours of September 6, he was with the appellants Bailey, Lee, Ham and Cole in a red and black 1960 or 1961 Chevrolet convertible driven by Ham; that they later were joined by a youth named Smokey who produced a gun and discussed 'making some money' with Ham; that they then drove to East Baltimore, where they parked and Smokey, Bailey and Lee left the car, telling the others they were going to visit a girlfriend; that soon thereafter they returned to the car on the run with a bag which appeared to contain money; that nothing was said about what occurred, but at 11:00 p. m., they drove to Pat & Woody's Bar and after Ham, Smokey and Cole entered to 'check out' the place, they drove away, returning several hours later, at which time Ham parked the car about a block and a half from the bar; and that he (Quattlebaum), Bailey, Lee and Smokey entered the bar while Ham and Cole remained outside. Quattlebaum described the holdup, testifying that as they left the bar shots were fired at them, that Ham told them not to get in the car, and that he (Quattlebaum) did not enter the car but remained in the area until about 5:00 a. m. when he observed two youths being arrested near Ham's car.

Both robbery victims at Pat & Woody's Bar-Daly and Padnuk-positively identified Bailey as one of the robbers, and Bailey confessed his involvement in those crimes.

Quattlebaum's testimony that Bailey left the car earlier that evening with Lee and Smokey, and returned shortly thereafter on the run with a bag which appeared to contain money, is corroborated by the testimony of Daly and Padnuk showing that Bailey was with Lee later that same night at Pat & Woody's Bar, Lee also having been identified as one of the robbers by Padnuk and Daly. While Rogers, the bartender at the Hilltop Bar, could not identify Bailey as one of the three robbers, the victim Crowther testified that she had previously identified Bailey as one of the robbers '(w)hen I went up to court' (apparently referring to the preliminary hearing). She also made an in-court identification of Bailey as one of the robbers, but when asked whether she was certain, she replied 'I can't say for sure.' It appears from the record that Crowther's failure to make a positive identification may have been only as to which of the three participants held the gun, but considering her testimony to constitute a legally insufficient identification of itself to support a conviction, we think her testimony, viewed in the light of Quattlebaum's testimony respecting Bailey's involvement with Smokey and Lee, both of whom were positively identified by the victims of the Hilltop robberies, constitutes a legally sufficient evidentiary predicate upon which to justify a finding that Bailey was present at the scene of those crimes. See Hernandez v. State, Md.App., 255 A.2d 449 (filed July 2, 1969). As indicated, Quattlebaum's testimony that Bailey returned to the car on the run with Smokey and Lee with a bag appearing to contain money was corroborated; but even had it not been, the trial judge could have found that as to the Hilltop robberies, Quattlebaum was not an accomplice since he professed no involvement in or knowledge of what occurred at that location. In any event, we think the trial judge could properly find from the evidence that Bailey was one of the persons who robbed Rogers and Crowther at the Hilltop Bar.

Bailey contends that there was no proof that he robbed Padnuk of $530.00, the amount of money charged in the indictment. While it is true that Padnuk never testified as to the amount of money that was stolen, he did state that the robbers 'cleaned out the cash register.' As the evidence indicated that Pat & Woody's Bar was an operating business, with patrons in it at the time of the crime, we think it may properly be inferred that the cash register contained some money, particularly since, immediately prior to the holdup, the robbers purchased some potato chips and actually paid for them with a quarter. It is well settled in a robbery prosecution that the amount of money taken from the victim is not an essential element of the offense, so long as the proof shows that something of value was taken, Fisher v. Warden, 224 Md. 669, 168 A.2d 520, it being sufficient to prove the taking of a greater or smaller sum of money than that alleged in the indictment, Love v. State, 6 Md.App. 639, 252 A.2d 493.

Bailey further contends that he cannot be convicted of armed robbery since there was no proof that he personally wielded a deadly weapon or took anything of value from anyone. As the evidence showed that each of the victims had something of value taken from him, either at gun or knife point, and as Bailey was present at that time, participating in the offenses, he is, of course, equally guilty with the others. See Bradburn v. State, 4 Md.App. 248, 242 A.2d 592.

Bailey next contends that the proof did not corresponed to the allegations of the indictment, since the indictment charged that Albert Rogers was the victim, whereas the proof showed that Howard Rogers was the victim. In Huston v. State, 202 Md. 333, 96 A.2d 593, it was held that an indictment stating the popular name instead of the true name of the person injured by the offense charged will not be held bad if such person was usually or properly known by the name stated, as the purpose of describing the victim by his name in the indictment is to identify him sufficiently to apprise the defendant of the person allegedly victimized. There was evidence at the trial that 'Al' was the nickname of Howard Rogers. Appellant does not contend that he was not sufficiently apprised by the indictment of the charge against him with respect to the Rogers robbery, nor did he raise any objection at the trial to the alleged variance between the indictment and the proof. Under the circumstances, we find the indictment sufficient under Hutson.

As to appellant Bailey, we hold that in finding him guilty of each of the four armed robberies, the judgment of the trial court was not clearly erroneous under Maryland Rule 1086.

The Evidence Against Cole

None of the victims identified Cole as a participant in the robberies. It was Quattlebaum's testimony that neither he nor Cole were involved in or had knowledge of the robbery at the Hilltop Bar; and, at most, the evidence showed that prior to this offense, Ham and Smokey had, in Cole's presence, discussed 'making some money,' and Smokey produced a gun. We cannot, therefore, find from the record that Cole was a principal in the robberies of Rogers and Crowther.

There was, however, testimony from Quattlebaum that after Smokey, Bailey and Lee returned to the car on the run with what appeared to be a bag of money, the group drove to Pat & Woody's Bar where Cole went in to 'check out' the place and count the people therein. There was later discussion among the group as to who would enter and perpetrate the robbery, and it appears that Cole did not re-enter the establishment because he was too well known there. Cole, therefore, remained outside during the robbery, with Ham near the car which was parked a block and a half away, and hence he was in a position to be a lookout. As Quattlebaum was an admitted accomplice in the robberies of Daly and Padnuk at Pat & Woody's Bar, his testimony of Cole's involvement in the crimes required corroboration. We find such...