Linkins v. State

• Citation: 96 A.2d 246,202 Md. 212
• Decision Date: 17 April 1953
• Docket Number: No. 119,119
• Parties: LINKINS v. STATE.
• Court: Maryland Court of Appeals

Page 212

202 Md. 212

96 A.2d 246

LINKINS v. STATE.

No. 119.

Court of Appeals of Maryland.

April 17, 1953.

Lloyd R. Kuhn, Hagerstown, for appellant.

Kenneth C. Proctor, Asst. Atty. Gen., and John S. Hollyday, State's Atty. Washington County, Hagerstown (Edward D. E. Rollins, Atty. Gen., on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal by Daniel Linkins, Jr., from a judgment entered on a verdict of guilty of assault with intent to rob, larceny, and common assault. The case was tried by the trial judge and a jury.

Appellant was indicted for robbery, assault with intent to rob, larceny, and assault and found not guilty of robbery. Appellant filed a motion to dismiss the indictment on the grounds that it 'does not sufficiently describe the goods and chattels which the defendants [appellant] are [is] charged with robbing or attempting to rob,' and that the description of the goods and chattels allegedly taken does not sufficiently inform the defendant of the charge so that he can prepare his defense thereto. This motion was overruled. As he was found not guilty on the first count for robbery, he is not prejudiced by the action of the trial court in overruling his motion to that count. The second count charges that the appellant did 'make assault with intent the moneys, goods and chattels of the said Conrad Eugene Baker from the person and against the will of the said Conrad Eugene Baker then and there forcibly, feloniously and violently, to rob, steal, take and carry away, * * *.' We find no requirement that in a count for assault with intent to rob that the goods and chattels be listed or described. Code, Article 27, Section 14; Hollohan v. State, 32 Md. 399. This count is not one for assault with intent to rob with 'a dangerous or deadly weapon' where the listing of the property is required by the statute, Code, Article 27, Section 575. The third count of the indictment charges the appellant with 'one wallet of the value of fifty cents of the property goods and chattels of one Conrad Eugene Baker then and there being found, did then and there unlawfully steal, take and carry away * * *'. It was said by this Court in the case of State v. Lassotovitch, 162 Md. 147, at page 156, 159 A. 362, at page 366, 81 A.L.R. 69 in defining the general requirements of a valid indictment: 'Every charge or accusation, whether at common law or under statute, must include at least two elements: First, the characterization of the crime; and, second, such description of the particular act alleged to have been committed by the accused as will enable him to properly defend against the accusation. In statutory crimes, where the statute includes the elements necessary to constitute a crime, the first of these requirements is gratified by characterizing the offense in the words of the statute; the second requires such definite and specific allegations as reasonably to put the accused on notice of the particular act charged, to enable him to prepare a defense and plead the judgment in any subsequent attempted prosecution.' It is said by Hochheimer on Criminal Law, 2nd Edition, Larceny--Indictment, Section 374, Page 410; 'There must be proper averments of the thing taken and of ownership. Very particular descriptions of goods and chattels are not necessary. Such descriptions, as the following are sufficient: 'one hide' [State v. Dowell, 3 G. & J. 310]; 'a horse;' 'one watch;' 'a book;' 'one cape." Apparently the demurrer to the fourth count for common assault is abandoned here. We are of opinion that the motion to dismiss the second, third and fourth counts of this indictment was properly overruled.

The appellant contends that the Court erred in admitting his confession in evidence as voluntary. He was eighteen years of age. The testimony before the trial judge as to whether this confession was voluntary follows: Trooper Richard A. Myers testified that he and Trooper Hasenbuhler were at Police Headquarters when the appellant came in. He was interrogated in the Assembly Room for possibly fifteen or twenty minutes. At that point the jury was excused and the following statement was made by State's Attorney John S. Hollyday to the trial judge: 'I want to show that during the 15 to 20 minutes this boy was impudent and finally I said we would not fool with him, lock him up and Trooper Hasenbuhler searched him and took him to the cell. The other boys talked and I wanted one of them to make an admission so I asked him and Trooper Myers and myself went back with him; we said 'Barnes were you out there and was Danny with you'; he said, 'My God, Foltz forgot to get rid of the pocket book', then told his story. The following morning Trooper Myers and myself were there with Thelma Hartle, she was standing by and they were called in one at a time and we took statements from them.' Trooper Myers then resumed his testimony and said that during this fifteen minutes 'he [Linkins] was very arrogant, argumentive, refused to answer anything, did not know what we were talking about, about the car, about the boy being beaten up. At that time he said he did not know anything. Then he gave some smart remark back at which time he was told he would be locked up and Hasenbuhler searched him and put him back in the police lock up, fourth floor; we came back in and I talked to you [Mr. Hollyday] and decided we would take one boy in to talk to Linkins to tell him. We took Barnes and you, Barnes, and myself went to the cell. You asked Barnes in the presence of Mr. Linkins, the two were right there, whether he was near the Fox Deceived Farm at which time Barnes said to appellant, 'Well, Danny, you might as well tell them everything, Foltz had the pocketbook on him'.' Appellant then said 'O.K. Iwill admit to it, I was with them. * * * O.K. I will admit I was a partner.' Trooper Myers further testified that no promises or threats of any kind were made to the appellant. On cross-examination Trooper Myers said that after appellant made the above statement he was told he would be locked up and then he said 'Well, I won't be locked up too long because he would get a lawyer'. Appellant at no time asked for a lawyer. Mr. Hollyday, the State's Attorney, then told him that was his privilege. Mr. Hollyday testified that the written statement was taken from the accused the next morning, Saturday, at 11:10 a. m. When asked whether the only reason appellant was not given a preliminary hearing the next morning was to take the statement, Mr. Hollyday replied: 'I would not say that. I do not recall when the warrant was gotten out.'

The appellant contends, among other things, that because of the fact that he was only eighteen years of age; was held at least twelve hours before the written statement was taken; and because he was refused an attorney, for whom he had expressed a disire prior to the taking of the confession, it should not have been admitted in evidence. He relies strongly on the case of Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 304, 92 L.Ed. 224. In that case defendant was convicted of murder in the first degree and sentenced to life imprisonment. The accused was fifteen years of age and about midnight the police took him from his home to police headquarters. There he was questioned for about five hours by at least five police officers who interrogated in relays of two or more. About 5 o'clock in the morning this procedure resulted in what the police regarded as a confession. Whereupon it was formally reduced to writing. During the course of the questioning the boy was not advised that he was not obliged to talk nor that he was entitled to have the benefit of counsel or the help of his family. Justice Douglas, writing the majority opinion for the Supreme Court, in which Justices Black, Murphy and Rutledge concurred, held that the confession was involuntary and should have been excluded. Justice Frankfurter, concurring in the result, indicated that he was of opinion that a youth of fifteen years of age could never make a voluntary confession. Justice Burton, in a dissenting opinion, concurred in by Chief Justice Vinson and Justices Reed and Jackson, held that they were not in a position, on the basis of mere suspicion, to hold the trial court in error in admitting the confession and to conclude 'that this was a confession wrung from a child by means which the law should not sanction' and were of opinion that the confession was properly in evidence. The appellant here was not fifteen but eighteen years of age and had been married. According to all the testimony he was not questioned for longer than fifteen or twenty minutes before he made his confession. The officers deny that he requested a lawyer before he made the confession but that he said he would not stay in prison long because he would get a lawyer. In Cox v. State, 192 Md. 525, 64 A.2d 732, the appellant, twenty years of age at the time of the crime, was convicted of murder and sentenced to death. He was arrested at 12:30 a. m. on May 26th and questioned intermittently until 10:50 a. m. on May 28th when he made his confession, before a preliminary hearing. We decided, in holding the confession admissible, that the mere fact that the accused was under arrest at the time the confession was made and that he was in the custody of the police when he confessed and before he had an attorney did not of itself make such a confession inadmissible. In Grear v. State, 194 Md. 335, 71 A.2d 24, Grear was arrested at 8:55 a. m. Sunday morning, December 12th, and taken to the Western Police Station in Baltimore but was not taken before the magistrate until 4 o'clock p. m. on December 13th. The statute applicable to Baltimore City provided that the officer making the arrest should take the accused immediately before the nearest police justice for examination and Grear contended that the confession was obtained from him while he...