Manning v. State

• Decision Date: 16 October 1967
• Docket Number: No. 222,222
• Citation: 233 A.2d 821,2 Md.App. 177
• Parties: Richard W. MANNING v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 177

2 Md.App. 177

233 A.2d 821

Richard W. MANNING v. STATE of Maryland.

No. 222.

Court of Special Appeals of Maryland.

Oct. 16, 1967.

John R. Hargrove, Baltimore, for appellant.

S. Leonard Rottman, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., and Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and WILLIAM W. TRAVERS, Special Judge.

PER CURIAM.

On June 28, 1966, the appellant was found guilty generally under a two count indictment which charged him with unlawfully breaking a dwelling house in the daytime with intent to steal and being a rogue and vagabond by Judge James A. Perrott, presiding in the Criminal Court of Baltimore, without a jury. He was sentenced to imprisonment for a term of eight years from October 21, 1964, the date he was arrested. He had previously been tried and convicted for the crimes on January 21, 1965, and sentenced to imprisonment for a term of ten years. While an appeal was pending from this judgment the decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 was rendered, and the case was remanded for further proceedings. On January 18, 1966, the appellant moved to dismiss the indictment under the Schowgurow decision and the motion was granted. He was reindicted but this indictment contained counts charging offenses for which the appellant had been acquitted at his first trial. The Grand Jury then deleted these counts from the indictment but it was discovered that one of the remaining counts charged the felonious breaking of a dwelling house in the daytime with intent to steal. At the time the appellant was charged with committing the offense, it was a misdemeanor, Md.Code (1957) Art. 27, § 32 and was made a felony by legislative enactment in 1965. Md.Code (1967 Replacement Volume) Art. 27, § 30(b). He was reindicted on March 23, 1966, this indictment being the indictment under which he was tried on June 28, 1966. The prior indictment charging the felonious breaking was dismissed on the appellant's motion on April 22, 1966.

On this appeal the appellant contends that the evidence was insufficient to sustain the conviction and that he was 'deprived of of a fair trial by the repeated indictments of the State and was placed in (double) jeopardy by the second trial.'

Mrs. Odell Watson testified that on October 21, 1964, at about 11:00 A.M. she and her husband left their home at 2624 Kirk Avenue in Baltimore. They left, by the rear entrance and the door was closed and locked when they left. When the Watsons returned about 10 minutes later, Mrs. Watson noticed the back door was open and she heard noises upstairs. A window on the door had been broken. She entered the house and called upstairs. She got no response but heard footsteps heading toward the back balcony on the second floor. When she went outside two men jumped off of the back balcony within three feet of her. The two men did not run but walked away. Mrs. Watson then called to her husband, who was a short distance away, telling him what had happened and pointed out one of the men, who had just walked past him. Mrs. Watson further testified that her husband pursued the man, and after a short time returned with him. The police had been called by Mrs Watson and had arrived by the time Mr. Watson returned. Mrs. Watson identified the appellant at the trial as one of the men who had jumped off the balcony and as the man who had returned with her husband. Mr. Watson testified that, after hearing his wife call out, he went after the man she indicated, who broke into a run. After a short chase Mr. Watson apprehended the man (whom Mr. Watson identified in court as the appellant). When caught by Mr. Watson, the appellant said: 'I did not break into your house.' When Mr. Watson returned to his home, the appellant was placed under arrest by the police who had arrived in the interim. The Watsons and one of the police officers present testified that two upstairs bedrooms had been ransacked, several of Mrs. Watson's handbags had been turned out, and drawers had been opened and disheveled, although nothing was noted as missing.

It has been established that the test of the sufficiency of the evidence in a non-jury case when reviewed by this Court, is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the trial court could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. Fisher v. State, 1 Md.App. 505, 231 A.2d 720 and cases cited. Since from the evidence before the trial court, above detailed, this test was clearly fulfilled, the judgment of the lower court was not clearly erroneous and will not be set aside on the evidence. Maryland Rule, 1086.

Where, as here, a defendant elects to have the indictment involved in his first trial declared void under the rule announced in Schowgurow v. State, supra, he brings himself within the rule that where the traverser has been tried under an invalid indictment, he is not in jeopardy and he may be indicted and tried again. Sadler v. State, 1 Md.App. 383, 230 A.2d 372 and cases cited. Therefore, the appellant has not been twice put in jeopardy because of his trial which he elected to invalidate...