McClelland v. State

• Decision Date: 14 May 1921
• Docket Number: 5.
• Citation: 114 A. 584,138 Md. 533
• Parties: McCLELLAND v. STATE.
• Court: Maryland Court of Appeals

114 A. 584

138 Md. 533

McCLELLAND v. STATE.

No. 5.

Court of Appeals of Maryland

May 14, 1921

Appeal from Criminal Court of Baltimore City; Carroll T. Bond Judge.

"To be officially reported."

Henry McClelland, alias Herbert M. Rothery, was convicted of larceny, and he appeals. Reversed, and new trial granted.

Urner J., dissenting.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

David S. Kaufman and J. Le Roy Hopkins, both of Baltimore, for appellant.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., and Robert F. Leach, Jr., of Baltimore, State's Atty., on the brief), for the State.

URNER J. (who dissents as to the necessity for a reversal).

There are 101 bills of exceptions in this record, but they are mainly concerned with only two general questions of evidence. The appellant was indicted for the larceny of a diamond brooch. Upon his trial in the court below he was found guilty by the verdict of a jury, and was sentenced to imprisonment for 3 years in the Maryland penitentiary. Before the exceptions reserved at the trial are considered, the effect of the evidence to which no objection was made will be stated. The accused did not testify, and no evidence on his behalf was offered.

The brooch in question was stolen from the retail store of the A. H. Fetting Jewelry Manufacturing Company on Liberty street in the city of Baltimore. It was in a tray of jewelry which was shown to the appellant on June 12, 1919, and when the tray was afterwards examined the brooch was found to be missing, although it had not been sold. On May 24th the appellant had brought a ring to the store to be repaired, and when he called there on June 12th he was informed that the ring would be ready for him on the next day. He did not return for it until the following March. Subsequently he was arrested, as were also his son and a young woman by the name of Miss Cook, and all were indicted jointly for the larceny. In an interview at police headquarters Miss Cook stated in the presence of the appellant that on June 12, 1919, after having come from New York to Baltimore with the appellant and his son in an automobile, she was left by them in the car on Fayette street, and upon their return, after being absent for a considerable period of time, the appellant threw a small jewelry box into the car, and they afterwards went to New York, where she pawned for the appellant a brooch, which she identified from a drawing made by Mr. Fetting as the one stolen from his company's store. By the appellant's direction, she said, the brooch was pawned by her under a fictitious name. After denying, when arrested, that he had given Miss Cook any jewelry to pawn, the appellant admitted, in view of her statement made in his presence, that what she had said was true. He offered to plead guilty if he "could get 10 months"; but he was told that he could be given no such assurance.

A number of the exceptions were taken to the admission of evidence tending to prove that the appellant stole other articles of jewelry from the store of the Fetting Company in the course of a series of visits there beginning May 24, 1919, when he left the ring to be repaired, and ending on June 12th, when the larceny of the diamond brooch is alleged to have occurred. The proof introduced over these objections was to the effect that Miss Cook received from the appellant, and pawned under assumed names at his instance, other jewels stolen from the store during the period of his visits there, and that he admitted at police headquarters the truth of her statement as to his having delivered those articles to her for the purpose she described. This evidence tended to prove that the larceny charged in the indictment was one of a connected series of crimes of that nature committed by the appellant, in the execution of a continuous scheme of theft depending upon the opportunity provided by the transaction in reference to the repair of the ring and characterized by the employment of an unvarying method and agency for the disposal of the stolen property. For the purpose of proving a common design or system in pursuance of which the crime charged in the indictment was perpetrated, the evidence to which the group of exceptions under consideration referred was properly admitted.

While ordinarily proof of another larceny by the accused is not received to establish his guilt as to the one for which he is indicted, yet such evidence is admissible "where it bears on the issues in the case on trial" as "where the evidence of such other offense shows or tends to show intent, motive, guilty knowledge, or a common scheme, plan, or system." 16 C.J. 603. In a note to the case of State v. Gillies, 43 L. R. A. (N. S.) 776, on the subject of "Evidence of Other Crimes in Prosecutions for Larceny," it is said:

"Evidence of other offenses is sometimes admitted for the purpose of showing that the act charged was part of a series of similar offenses, to show common purpose or system, or because the crime offered in evidence was part of a common scheme or plan to commit the larceny charged."

The annotation refers to a number of cases in which that principle has been applied. Earlier decisions on the subject are collected in a note to People v. Molineux, 62 L. R. A. 231 et seq.

In Avery v. State, 121 Md. 231, 88 A. 148; Luery v. State, 116 Md. 289, 81 A. 681, Ann. Cas. 1913D, 161; and Lamb v. State, 66 Md. 287, 7 A. 399, Rex v. Ellis, 6 B. & C.

145, in which a shopman was indicted for robbing his employer's money drawer of a certain sum of money on a stated day, and evidence that the accused had robbed the drawer at other times was admitted on theory that the several felonies were connected...