Johnson v. State
| Decision Date | 18 December 1968 |
| Docket Number | No. 81,81 |
| Citation | 248 A.2d 663,5 Md.App. 540 |
| Parties | William JOHNSON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Howard E. Wellin, Baltimore, for appellant.
Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and C. Allan Herndon, Jr., State's Atty. and Asst. State's Atty., for Baltimore City, respectively, on brief, for appellee.
Before MURPHY C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
The appellant, William Johnson, was convicted of storehouse breaking with intent to steal goods of the value of one hundred dollars ($100) or more (Md.Code, Art. 27, sec. 32) and sentenced to serve five years.
At approximately 2:20 a.m., on December 16, 1967, the appellant was found in the Purple Heart Thrift Store by the police and a representative of a burglar alarm company who were there in response to the sounding of a silent alarm. The appellant was lying face down in a rear aisle on the first floor of the building. The representative of the alarm company testified that entrance had been gained through a skylight in the roof of the four-store building and that the alarm had been activated by the opening of a door at the bottom of a stairway on the first floor, approximately five feet from where the appellant was found. He also testified that the appellant 'claimed he was hurt' and that although he did not smell his breath, he detected no odor of alcohol on the appellant.
The appellant, who described himself as a free-lance commercial photographer, testified that he and his brother had spent the evening in a night club taking photographs of customers 'and I decided to drink a little more than usual.' When asked, what happened, he replied: 'I got plastered.' He further stated that he left the night club about 2:00 a. m. and 'I staggered or tried to make it to my girl friend's house.' When he arrived at her apartment door 'I decided not to go in because it was too late to disturb my girl friend' and 'I decided to go home, I believe.' According to the appellant, 'the next conscious moment I had was when the policeman picking me up under my arm.' He admitted that the police took from him a screw driver but he asserted that this had been used 'that day to fix the refrigerator in my girl friend's house.'
His half brother took the stand and confirmed that they had been together at the night club and that he left the appellant at the door of an apartment on the ninth floor of an apartment building. When asked about the condition of the appellant during the evening, he replied: 'We was both in the same predicament, intoxicated.'
An employee of Veteran Thrift Stores, Inc., testified that the Purple Heart Thrift Store was one of three stores operated by the corporation; that he had been employed by the corporation for six years; that he was the manager of the Purple Heart Thrift Store; that when he arrived at the store the police and burglar alarm representative were there; that he inspected the premises and observed 'a skylight in the roof that had been broken open completely * * *.' He checked the inventory and determined that nothing was missing. When asked to give the value of the inventory, he was permitted, over objection, to estimate the value to be three thousand dollars ($3,000).
In this appeal, it is contended that the lower court erred in failing to consider the legal effect of appellant's intoxication on his capacity to commit the offense. It is argued that an essential element of the offense is the existence of a specific felonious intent and that if the appellant was incapable of forming such intent, because of his intoxication, his conviction cannot be sustained.
It is true that where there is evidence that the accused was intoxicated at the time of the commission of a crime involving the element of intent, the trier of fact should give consideration to the effect of such intoxication upon his ability to formulate the required intent. As stated by this Court in Michael v. State, 1 Md.App. 243, 247, 229 A.2d 145, 147:
'Where a particular motive, intent or purpose is an essential element of a crime, drunkenness may be considered in determining whether or not the accused lacked the mental capacity to form the requisite motive, intent, or purpose, and if a sufficient mental incapacity is found to exist drunkenness may constitute a defense to the particular offense charged.'
We went on to say, however, that the burden is on the accused to 'persuade the triers of fact that, under the circumstances, he was so intoxicated as to be incapable of entertaining the specific mental intent or of possessing the mental state which is an essential element of the crime for which he is being prosecuted.' Michael, supra, 247, 229 A.2d 148.
The record does not support the appellant's contention that the lower court failed to consider the effect of his intoxication on his capacity to commit the crime. In fact, the issue was specifically raised and extended arguments were presented to the court in support of the appellant's contention that he was incapable of forming the requisite intent because of his intoxication. It is also clear from the record that the trial judge considered and rejected the appellant's contention in this regard.
The trial judge was not required to believe the appellant's assertion that he was so 'plaster...
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