Holt v. State

• Citation: 240 A.2d 355,3 Md.App. 544
• Decision Date: 04 April 1968
• Docket Number: No. 130,130
• Parties: William Rollins HOLT a/k/a Herbert Lee Mayes v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 544

3 Md.App. 544

240 A.2d 355

William Rollins HOLT a/k/a Herbert Lee Mayes v. STATE of Maryland.

No. 130.

Court of Special Appeals of Maryland.

April 4, 1968.

Paul J. Cockrell, Baltimore, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Joseph C. Howard, State's Atty. and Asst. State's Atty., Baltimore, on the brief, for appellee.

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

THOMPSON, Judge.

William Rollins Holt, also known a Herbert Lee Mayes, the appellant, was convicted of murder in the first degree in a jury trial in the Criminal Court of Baltimore. He was sentenced to be confined for the term of his natural life. The conviction is based upon Section 410 of Article 27 of Md. Code which provides that murder committed in the perpetration of a robbery or an attempted robbery shall be murder in the first degree. The facts are set out fully in the companion case in the Court of Appeals of Maryland, Cunningham v. State, 247 Md. 404, 231 A.2d 501; the evidence produced in the present case being substantially the same as that produced in the Cunningham case. Such facts as are necessary for this opinion are set out hereinafter.

Holt's first contention is that he was denied due process of law due to a 'violation of the sanctity of the jury and the jury room.' There is nothing in the record to support the appellant's contention and the matter was not presented to or ruled upon by the trial judge; therefore, under Maryland Rule 1085 there is nothing before us to review. We will discuss the matter, however, in view of the fact that the issue may be raised in a collateral attack on the judgment. It seems that an alternate juror was excused by the court and counsel, without Holt's personal knowledge, after the jury had been sworn because the juror informed the trial judge that he had personal knowledge concerning the case. He cites the case of Young v. Lynch, 194 Md. 68, 69 A.2d 787 supposedly for the proposition that jurors should be disinterested. Inasmuch as the juror was excused prior to the taking of the testimony and did not in any way participate in the trial, it is difficult for us to see how Holt was in any way prejudiced by the action of the court and counsel.

In his second allegation, Holt contends that the testimony of one William Leonard Smith should have been excluded on the grounds that he was an accomplice and that his testimony was not corroborated and untrustworthy. It appears that Smith was the chief witness against Holt, and that he and others had participated in the plan of the robbery, but that Smith withdrew when he found that a loaded pistol was to be used therein. Assuming that Smith was an accomplice, there is no modern authority which would exclude his testimony. It is the rule, however, that such testimony must be corroborated. O'Connor v. State, 1 Md.App. 627, 232 A.2d 551. In the present case, however, Smith's wife confirmed that Holt with two others had been at her home immediately before and immediately after the hour of the robbery and that Cunningham changed his clothes and left a gun resembling the murder weapon with her husband. This is sufficient to identify Holt with the crime and to corroborate the testimony of an accomplice. Kitt v. State, 2 Md.App. 306, 234 A.2d 621. In addition, Smith had informed police officials prior to the robbery that a robbery somewhere was about to take place and that he would keep them advised.

The third contention, like the first, is not supported by the record in this case, nor was it presented to the trial court for ruling, and is, therefore, not properly before us but to forestall a collateral attack on this ground, we will also discuss this issue. On cross-examination the witness, Smith, stated that he contacted the police at 9 o'clock the next morning after the robbery. On this question the specific testimony was as follows:

QUESTION: About 9 o'clock the next morning? Did you contact any police officer before 9 o'clock the next morning?

ANSWER: No.

In the record in the companion case of Cunningham v. State, supra, Holt alleges that Smith had testified that the police came to his house that night about 11 o'clock, and he told them that he would contact Sgt. Watkins later. Holt contends that the State should have been aware of this testimony, and its failure to correct the testimony in the present trial constituted knowingly withholding and suppressing evidence which could have changed the verdict. In the first place the testimony is not entirely inconsistent, since the specific question was 'when did you contact the police' rather than when did the police contact you. In addition, it would seem to have no bearing on the guilt or innocence of Holt, whether Smith contacted the police at 11 o'clock at night or at 9 o'clock the next...