Ledbetter v. State, 136

• Decision Date: 08 February 1961
• Docket Number: No. 136,136
• Citation: 224 Md. 271,167 A.2d 596
• Parties: John Frank LEDBETTER, Jr., v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 271

224 Md. 271

167 A.2d 596

John Frank LEDBETTER, Jr., v. STATE of Maryland.

No. 136.

Court of Appeals of Maryland.

Feb. 8, 1961.

Norman N. Yankellow, Baltimore (Joseph Rosenthal, Baltimore, on the brief), for appellant.

Robert C. Murphy, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty., and James W. Murphy, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

HAMMOND, Judge.

John Frank Ledbetter, Jr., appellant, claims on appeal that the jury's verdict of guilty of murder (without capital punishment) was inconsistent with their verdict of not guilty of robbery, and must fall because, if there was evidence sufficient to justify the murder verdict, which he denies, that evidence was that the killing occurred in the perpetration of a robbery.

We find in the record testimony including an oral and a written confession of appellant, which were exculpatory in part, from which the jury could have found as facts that: four Negro youths, Jerry, Eddie, Bones, and appellant, decided to rob an elderly man on a Baltimore street corner about ten o'clock one August evening in order to get more wine to drink; Jerry hit the man on the jaw and knocked him down so that the back of his head hit the street or the curb; before Jerry hit the man appellant knew they were going to rob him; Eddie and Bones took a small amount of money and a ring from the man; appellant grabbed the victim's left arm and tried to pull him back to the curb; the four fled hurriedly because several people had seen the incident; immediately after the robbery the four regathered in an alley and drank some wine one of them bought; later, three of them went to appellant's house and Bones told appellant of taking the ring the victim of the robbery died several hours after being struck from the blows to the face and head.

Appellant's contention that the evidence was insufficient to sustain the verdict of guilty of murder cannot be considered because no motion for a directed verdict was made at any stage of the trial. Under Art. XV, Sec. 5 of the Constitution of Maryland, Code (1957), Art. 27, Sec. 593, and Maryland Rule 738, appellate review of the sufficiency of the evidence in a criminal case before a jury is predicated entirely upon the refusal of the court to grant a motion for a directed verdict of not guilty. In the absence of such a motion below, 'there can be no review of the sufficiency of the evidence.' Auchincloss v. State, 200 Md. 310, 315, 89 A.2d 605, 607; the law on the point was fully reviewed in Woodell v. State, 223 Md. 89, 162 A.2d 468.

Appellant cannot prevail in his second contention that the claimed inconsistency between the verdict of not guilty of robbery and the verdict of guilty of murder must cause the guilty verdict to be stricken. Some Courts hold as appellant urges us to hold, as cases in the annotation in 80 A.L.R. 171 disclose. Others, including the lower Federal courts, the Supreme Court and this Court, have taken the opposite view. Steckler v. United States, 2 Cir., 7 F.2d 59, 60; Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356, 358; United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; Leet v. State, 203 Md. 285, 293, 294, 100 A.2d 789; Williams v. State, 204 Md. 55, 64, 102 A.2d 714.

In the Dunn case, Mr. Justice Holmes said for the Court: 'Consistency in a verdict is not necessary. * * * That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.' [284 U.S. 390, 52 S.Ct. 190]

In Leet we held that possible inconsistency between acquittal of wilful failure to pay income tax and conviction of wilful failure to file a return did not require reversal. The Dunn case was quoted, as was the language of Judge Learned Hand in Steckler v. United States, supra , that 'the most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.' Judge Sobeloff said for the Court...