Malcolm v. State, 354

• Decision Date: 03 July 1963
• Docket Number: No. 354,354
• Citation: 232 Md. 222,192 A.2d 281
• Parties: Albert Edward MALCOLM, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 222

232 Md. 222

192 A.2d 281

Albert Edward MALCOLM, Jr. v. STATE of Maryland.

No. 354.

Court of Appeals of Maryland.

July 3, 1963.

Charles A. Friedman, Baltimore (David Friedman, Friedman & Friedman, Baltimore, on the brief), for appellant.

Stuart H. Rome, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty. for Baltimore City, and George J. Helinski, Asst. State's Atty., Baltimore, on the brief), for appellee.

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

PRESCOTT, Judge.

Appellant was found guilty of robbery by a judge of the Criminal Court of Baltimore, sitting without a jury, and sentenced to not more than three years' confinement. He appeals.

The principal question involved is the sufficiency, vel non, of the evidence.

On September 8, 1962, the prosecuting witness, one Cecil Humphries some thirty-seven years of age, and the appellant, a youth of about eighteen, 'struck up' an acquaintance in front of the Alcazar Hotel. This was sometime after 2:00 a. m., and the bars had closed. After a short time, Humphries invited appellant to his small apartment: one room, small kitchen and bath. Appellant was given food and beer and invited to spend the night, which he did.

When leaving on the following morning, appellant was invited to return and visit with Humphries. That evening Humphries returned to his apartment about 10:00 p. m. 'No sooner [than he] cut the light on' somebody knocked on his door. At the door, he found appellant and two other youths of about the same age as appellant. One was named Vaughn; the other was called 'Don'; and both were unknown to Humphries. After watching television and drinking Humphries' beer for about one-half an hour, Don, suddenly and without saying a word, walked over and struck Humphries several severe blows in his face, causing blood to flow from his nose and mouth. Don took a butcher's knife from a drawer and held it at Humphries' throat, stating that he belonged to a gang, and, if Humphries said anything to the police, Don would 'get' him later. Don told Vaughn to tie Humphries' legs and arms, which he did. Vaughn then took Humphries' watch and ring and twenty-two dollars (he also missed several shirts and an electric shaver after the boys left). Humphries testified that Vaughn and the appellant took his beer out of the ice box, while Don had the knife at his throat, and placed it in a bag, which they took with them when they left. He also said he couldn't see what Vaughn and appellant were doing during the entire time that Don had the knife at his throat. When asked on cross-examination what appellant was 'doing while this other man [Don] had the knife at your throat,' he replied: 'He was setting in the chair behind me.' The inquiry was not pursued further. Humphries scarcely could have intended to convey the thought that appellant was seated behind him during the entire time that Don was holding the knife in a threatening position (as appellant would like us to interpret the testimony), since he had already testified that Vaughn and appellant had placed his beer in the bag. Shortly thereafter, Vaughn and appellant went out the door closely followed by Don, leaving Humphries with his legs and arms tied. He hobbled to a nearby apartment where the occupant released him and called the police.

Appellant and Vaughn were tried jointly. Vaughn had made a statement, which implicated appellant. At the request of appellant, this statement was admitted only as against Vaughn. Appellant now contends that the trial judge wrongfully considered this statement as being evidence against him.

There can be little doubt that it is improper for the trier of facts, when two or more defendants are being jointly tried for a criminal offense and proper objection has been made, to consider the statement of one as implicating the others. The reason, of course, is that such action violates the hearsay rule; and an accused would be denied the right to cross-examine his accuser. But the short answer to this contention of the appellant is that there is nothing in the record that even remotely suggests that the trial judge used Vaughn's statement to convict the appellant; hence this contention falls and avails him nothing.

We turn now to the main question. Everyone accused of crime in this State is presumed to be innocent, and, in order to warrant a finding of guilt, it is incumbent upon the State affirmatively to establish the defendant's guilt beyond a reasonable doubt. Johnson v. State, 227 Md. 159, 175 A.2d 580. Presence of the accused at the scene of the crime is a significant circumstance in determining guilt or innocence, Tasco v. State, 223 Md. 503, 165 A.2d 456; but presence at the place where a crime has been committed is not sufficient, alone, to establish participation in the perpetration thereof. Watson v. State, 208 Md. 210, 117 A.2d 549. However, in reviewing the sufficiency of the evidence to support a conviction below, it is not necessary that the Court of Appeals be convinced of the accused's guilt beyond a reasonable doubt, Butz v. State, ...