Knotts v. State

• Decision Date: 04 February 1965
• Docket Number: No. 117,117
• Citation: 237 Md. 417,207 A.2d 100
• Parties: Dale Junior KNOTTS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 417

237 Md. 417

207 A.2d 100

Dale Junior KNOTTS v. STATE of Maryland.

No. 117.

Court of Appeals of Maryland.

Feb. 4, 1965.

W. Dwight Stover, Oakland, for appellant.

Robert L. Karwacki, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Fred A. Thayer, State's Atty. for Garrett County, Oakland, on the brief), for appellee.

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

PRESCOTT, Chief Judge.

Appealing from a judgment and sentence of six years' confinement in the Penitentiary, the appellant claims the trial court committed three errors: (1) that the court should not have permitted the State to amend the indictment, but should have granted the appellant's motion to dismiss; (2) that certain articles taken from his automobile should not have been admitted into evidence; and (3) that his oral confession was not admissible.

On November 23, 1963, a man, armed with a shotgun, entered a restaurant located on Route 50 in Garrett County. Olive Teets Smith, the wife of the proprietor, and two employees were working therein. The man told the women that it was a holdup, threatened them with the shotgun, and proceeded to empty the cash register of some $100. He left the scene in a red and black Ford automobile.

The police, both State and local, were promptly notified and given a description of the man, his clothing, the shotgun and the auto. On December 4, 1963, Trooper Lewis, of the State force, received information, while cruising on patrol, that a red and black Ford was being operated in that vicinity with registration plates issued for another automobile. Later, upon observing the automobile, which was being operated by the appellant, the Trooper brought it to a stop, and discovered that appellant had no operator's license. He was immediately placed under arrest. At this time, the Trooper saw a single-barreled shotgun in the automobile (which answered the description of the shotgun used in the robbery, previously given by the victims).

After the arrest, Trooper Lewis radioed for additional officers, and Corporal Henline and another officer arrived on the scene shortly thereafter. Trooper Lewis brought the appellant to the Sheriff's office in Oakland, and Corporal Henline drove appellant's car to the Sheriff's office, where a search of the car revealed the shotgun, which had been seen by Trooper Lewis, and a dark cap, which were seized.

The officers, because of the previous descriptions received by them of the car, of the man who committed the robbery, his clothing, and the shotgun, felt there was a strong probability that appellant was the one who had taken the money from the cash register in the restaurant. Consequently, they began to interrogate appellant concerning the robbery very shortly after his arrival at the Sheriff's office. Approximately three hours after his arrest, he made an oral confession of his guilt of the robbery. More will be said of the confession when we consider whether or not it was properly admitted into evidence.

I

The appellant was tried upon a single indictment, which contained four counts: the first charged him with robbery of Olive Teets Smith; the second with an attempt to rob--using in said attempt a deadly weapon--the said Olive Teets Smith; the third with an assault with intent to rob the said Olive Teets Smith and the two employees; and the fourth with simple assault upon the said Olive Teets Smith and the two employees.

The appellant filed a motion to dismiss the indictment on several grounds. The principal ground (and the only one seriously pressed here) was that the third and fourth counts were duplicitous because they charged 'offenses against three different individuals.' The court below permitted the State to amend the indictment by deleting from both the third and fourth counts thereof the names of the two employees of the restaurant. It is obvious (and conceded) that all four counts of the indictment relate to the same transaction. Therefore, if we assume, without deciding, that the third and fourth counts were duplicitous, the above action, in effect, was an election by the State to try the defendant for one only of the offenses charged in each of the two counts alleged to be duplicitous, by taking a nolle prosequi as to all other offenses charged in the said counts. This procedure seems generally to be recognized as proper and permissible. State v. Cooper, 101 N.C. 684, 8 S.E. 134; State v. Williamson, 250 N.C. 204, 108 S.E.2d 443, where a warrant was involved; Comm. v. Holmes, 119 Mass. 195; Hochheimer's Criminal Law (2 ed.), p. 114; State v. Weleck, 10 N.J. 355, 91 A.2d 751; State v. Torrance, 41 N.J.Super. 445, 125 A.2d 403. Cf. Curry v. State, 117 Md. 587, 83 A. 1030; State v. McNally, 55 Md. 559; 42 C.J.S. Indictments and Informations § 186.

In State v. Lamb, 81 N.J.L. 234, 80 A. 111, the Court stated:

'It savors of technicality to hold an indictment bad merely because, through defective pleading, too much has been charged against the defendant. * * *. No harm can be done the defendant by permitting the state to strike one of the charges from the indictment. This course secures to the defendant his constitutional right to an indictment by a grand jury, and prevents a possible miscarriage of justice through defective pleading. * * *. ...