Harris v. State

• Decision Date: 29 April 1943
• Docket Number: 11.
• Citation: 31 A.2d 609,182 Md. 27
• Parties: HARRIS v. STATE.
• Court: Maryland Court of Appeals

31 A.2d 609

182 Md. 27

HARRIS v. STATE.

No. 11.

Court of Appeals of Maryland

April 29, 1943

Appeal from Criminal Court of Baltimore City; W. Conwell Smith Judge.

Thornley Durant Harris was convicted of larceny, obtaining property by false pretenses, and of larceny with an accessory, and he appeals.

Affirmed.

R. Lewis Bainder, of Baltimore (Ellis Levin, of Baltimore, on the brief), for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and J. Bernard Wells, State's Atty., and Thomas N Biddison, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, and MELVIN, JJ.

COLLINS Judge.

Thornley Durant Harris, appellant, was indicted by the Grand Jury of Baltimore City in an indictment containing six counts. The first count charged him with the larceny of $7,983.02, fifty shares of the capital stock of the Western National Bank of Baltimore, twenty-five shares of the common stock of the General Motors Corporation, one hundred shares of the capital stock of the New Amsterdam Casualty Company, one stick pin one pin, one lavalier, one necklace, and thirty-five diamonds, all the property of Julia A. R. Willcox. The alleged aggregate value of all of these articles was $13,964.27.

The second count charged him with unlawfully receiving; the third with obtaining by false pretenses; the fourth count with larceny of, Norman Bowles being an accessory thereto; the fifth count charged a conspiracy between the appellant and Norman Bowles to steal; the same articles as set forth in the first count, supra.

The appellant, after demanding a bill of particulars, which was filed by the State, was tried separately before a jury in the Criminal Court of Baltimore City and was found guilty on the first count, the third count and the fourth count. After a hearing on a motion for a new trial and on a motion in arrest of judgment, both of which were denied, the judgment and sentence was one confining the appellant to seven years in the Maryland Penitentiary. From that judgment and sentence he appeals to this Court. He was found not guilty by the jury on the second, fifth and sixth counts of the indictment.

The case comes here on the refusal of the Court below to grant the motion in arrest of judgment, on the exceptions of the appellant to the Bill of Particulars filed by the State, and on seven exceptions to the ruling of the Trial Court on the evidence.

As to the motion in arrest of judgment, the appellant contends that by reason of the verdict of the jury in finding him guilty on the first count charging him with larceny, and on the third count finding him guilty of obtaining the same property by means of false pretenses, that such an inconsistency, repugnancy and absurdity arises as to justify the granting of the motion.

We cannot, however, find that such an inconsistency necessarily arises by the verdict. In the case of Lanasa v. State, 109 Md. 602, 71 A. 1058, the defendant was charged in the third count with conspiracy to injure and destroy 'the property of Joseph Di Giorgio', and, in the seventh and eighth counts, with conspiracy to injure and destroy 'the property and dwelling house of Joseph Di Giorgio'. In reference to contention by the accused, in support of the motion in arrest of judgment, that the motion should have been granted in view of the absolute and necessary repugnancy between the verdict rendered by the jury in finding him guilty on the third count of the indictment and not guilty on the seventh count, Judge Burke said, at page 609 of 109 Md., at page 1061 of 71 A., 'Nor can we discover any necessary repugnance between the verdict of guilty on the third count and the verdicts of acquittal on the seventh and eighth counts. In those counts the object of the conspiracy was alleged to be 'to injure and destroy the property and dwelling house of Joseph Di Giorgio.' The jury might have very reasonably concluded that, while the evidence in their judgment did not fully support the allegations of these counts, it did satisfy them that it was the purpose of the accused to injure and destroy some of Mr. Di Giorgio's property. We must conclude that they were so convinced by the verdict of guilty upon the third count and the acquittal upon the others. The sufficiency of the evidence was a question for the jury, and this court upon a motion in arrest of judgment has no power to review their finding. We said in Hiss v. Weik, 78 Md. [439] 446, 28 A. [400], 401, that: 'As an appellate court we cannot review the findings of the jury upon matters of fact, nor can we pass upon the comparative weight of the conflicting evidence submitted to them''. Likewise in the case now before this Court it is entirely possible that the jury did conclude that as to some of the property the accused was guilty of larceny, while other of the property was obtained by means of false pretenses.

The difficulties arising in the determination of whether the crime committed is larceny or false pretenses are reflected in Section 150 of Article 27 of the 1939 Code, which, after defining the crime of false pretenses and prescribing the punishment, provides, in part: 'that if...