Jackson v. State

• Decision Date: 11 June 1963
• Docket Number: No. 234,234
• Citation: 231 Md. 591,191 A.2d 432
• Parties: Lucius M. JACKSON, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 591

231 Md. 591

191 A.2d 432

Lucius M. JACKSON, Jr. v. STATE of Maryland.

No. 234.

Court of Appeals of Maryland.

June 11, 1963.

Rolf A. Quisgard, Jr., Baltimore, for appellant.

Robert F. Sweeney, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty. and George J. Helinski, Asst State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

SYBERT, Judge.

The appellant claims in this appeal that the Criminal Court of Baltimore, sitting without a jury, erroneously convicted and sentenced him for armed robbery, instead of common law robbery, in two cases (indictments Nos. 2572 and 2573). He did not appeal from his conviction under a third indictment (No. 2574) for common assault upon the police officer who arrested him, but did appeal from his conviction under a fourth indictment (No. 2575) for carrying a dangerous and deadly weapon, upon which sentence was suspended generally.

The facts are not in dispute. In the night of June 20, 1962 appellant held up two taxicab drivers. On each occasion he entered the rear seat of the taxicab and subsequently announced a hold-up, pointing at the victims (and holding against the neck of one of them) a small pistol, later revealed to be a .22 caliber starter's pistol of the type used at athletic events, incapable of discharging a lethal pellet and used for firing blank cartridges only. The testimony of the taxicab drivers showed that each believed the instrument to be an authentic pistol and was put in fear by it, and, thus coerced, complied with the robber's demand for his money. A police department firearms expert testified, without objection, that the starter's pistol was so similar in appearance to a regular .22 caliber pistol that from a short distance neither he nor any other expert could perceive any difference. He stated that he fired the starter's pistol and that its report resembled that of a regular .22 caliber pistol. The arresting officer testified that the appellant discharged the starter's pistol at him during pursuit and that he saw 'a flash of fire come from the gun'. Appellant did not take the stand, but after verdict and before sentence he admitted both robberies and his use of the starter's pistol therein.

Code (1957), Art. 27, Sec. 486, fixes the penalty for common law robbery at from three to ten years' imprisonment. Section 488 prescribes a sentence of not more than twenty years in the Maryland Penitentiary for robbery or attempt to rob 'with a dangerous or deadly weapon'. The appellant was sentenced to fifteen years in the Penitentiary on each of the armed robbery charges, to run consecutively. He contends that the verdicts and sentences for the more serious grade of the crime were clearly erroneous, on the ground that the starter's pistol was not a dangerous or deadly weapon because it was incapable of discharging a projectile.

We think that the rationale of Hayes v. State, 211 Md. 111, 126 A.2d 576 (1956), provides the answer to this contention. In that case we held that an unloaded pistol used in an attempted robbery was a dangerous weapon within the meaning of Sec. 488, supra (then Sec. 574A of the 1951 Code). Making it perfectly clear that guilt under the Maryland statute is predicated upon a finding of intent to rob by means of intimidation produced by the use of a weapon, coupled with the apparent ability to execute the implied threat to use the weapon if resistance is offered, Judge Henderson, for the Court, added (at p. 115 of 211 Md., at p. 578 of 126 A.2d): 'So long as there is an intent to rob by that means [intimidation induced by the weapon], it is unnecessary to find an intent or ability to execute the implied threat in the event of resistance.' It was also noted that pistols are frequently used as bludgeons in robberies. Decisions in other jurisdictions in accord with Hayes are collected in Annotation at 79 A.L.R.2d 1412, 1426 (1961).

The rule laid down in Hayes was recognized and applied in the later cases of Vincent v. State, 220 Md. 232, 151 A.2d 898 (1959); Davis v. State, 225 Md. 45, 168 A.2d 884 (1961); and Miller v. State, 231 Md. 158, 189 A.2d 118 (1963), and we think it is applicable here. The evidence shows (and the appellant admits) his intent to rob; it also shows that he intimidated the taxicab drivers with an instrument which appeared to be an authentic pistol, thereby coercing them to surrender their money without a struggle. Moreover, the appellant was close enough to his victims to have used the starter's pistol as a bludgeon, had resistance been offered. As indicated in Hayes, a secret intention of the assailant not to perform the threatened act, or even his undisclosed inability to perform it, would be immaterial.

Appellant argues that we should adopt the rule of Cooper v. State, 201 Tenn. 149, 297 S.W.2d 75, 61 A.L.R.2d 993 (1956), where the court held that a toy gun was not a dangerous or deadly weapon within the meaning of an armed robbery statute similar to ours. However, we are not persuaded by that decision, and we note...