Lyles v. State
Decision Date | 05 October 1970 |
Docket Number | No. 587,587 |
Citation | 269 A.2d 178,10 Md.App. 265 |
Parties | Michael Laverne LYLES v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
John D. Hackett, Baltimore, for appellant.
Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., Baltimore City and John B. Griffith, Asst. State's Atty., Baltimore, on brief, for appellee.
Argued before MURPHY, C. J., and ORTH and THOMPSON, JJ.
Michael Laverne Lyles was convicted at a court trial in the Criminal Court of Baltimore of assaulting Charles Lecato with intent to rob (1st count of indictment 2998), of assaulting and beating Robert Shirriell (2nd count of indictment 2999), and of resisting his arrest by Shirriell, a Special Officer of Baltimore City (indictment 3000), each of the offenses occurring on 11 April 1969. He contends that the judgment of the lower court as to each conviction was clearly erroneous and must be set aside.
As to indictment 2998 appellant claims that the State adduced no evidence sufficient to establish the assault as a necessary ingredient of assault with intent to rob. See Bryant v. State, 4 Md.App. 572, 577, 244 A.2d 446. Lecato testified that he was in the credit office on the third floor of Brager-Gutman's Department Store about 3:15 P.M. on 11 April. He had paid his bill and was waiting for his change of over $200. Appellant came Mrs. Lecato testified that appellant attempted to take the money from her husband. We said in Williams v. State, 4 Md.App. 643, 647, 244 A.2d 619, that any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention. It is not necessary that there should be a specific purpose to do a particular injury; general malevolence or recklessness is sufficient. Here it is clear that by grabbing the money held fast in Lecato's hand appellant attempted to apply force to Lecato's person and assaulted him. We note further that actual violence is present in the crime of robbery if the victim resists the attempt to rob him, however slight the resistance. Actual violence may be equated to a battery and a battery includes an assault. See Clark and Marshall, Law of Crimes, 6th Ed. § 12.13, pp. 787-789; § 12.14, pp. 789-793; Douglas v. State, 9 Md.App. 647, 267 A.2d 291. We hold that the evidence in law was sufficient to establish assault with intent to rob.
As to indictment 2999 appellant claims he was placed in a position se defendendo and legally met force with equal force. Shirriell testified that he was on the first floor of the store when he saw Mr. and Mrs. Lecato enter and get on the escalator. Three boys came in behind them and followed them on the escalator. Shirriell followed them to the third floor. The boys were standing in the door to the credit office This testimony was sufficient to show an assault and battery on Shirriell by appellant. See Price v. State, 227 Md. 28, 175 A.2d 11; Halcomb v. State, 6 Md.App. 32, 250 A.2d 119. Not even appellant's testimony established what he now urges. He said he was standing in line behind Lecato to get a check cashed. He was shoved and fell into Lecato We find that the court was not clearly erroneous in its judgment that appellant assaulted and beat Shirriell.
Indictment 3000 charged the common law offense of resisting arrest. See Preston v. Warden of Maryland House of Correction, 225 Md. 628, 169 A.2d 407; Perkins, Criminal Law, 2nd Ed., pp. 494-496; 4 Wharton's Criminal Procedure (Anderson) § 1617. It did so by alleging that Shirriell was a 'Special Officer' of the City of Baltimore, that he was in the lawful discharge of his duties in arresting appellant for attempted robbery and that appellant resisted the arrest by 'pulling, beating and laying hold of the said Officer.' When called to testify Shirriell said he worked for On 11 April 1969 he was 'on duty there as a special officer.' He said that when he apprehended appellant he informed appellant that he was under arrest and told appellant who he was, but the details of what Shirriell told appellant were not elicited. On cross-examination it was brought out that Shirriell had left Brager-Gutman's about two weeks after the incident and at the time of the trial was working for Metal Masters of Baltimore City. He was doing 'security work' only 'now and then.'
At the time of appellant's arrest the public general law codified as Art. 23, §§ 342-348 provided for the appointment of persons by the Governor to act as policemen for the protection of the property of corporations maintaining a mercantile establishment in this State. Sections 342...
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