McDowell v. State

• Decision Date: 02 April 1963
• Docket Number: No. 199,199
• Citation: 189 A.2d 611,231 Md. 205
• Parties: Alec McDOWELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 205

231 Md. 205

189 A.2d 611

Alec McDOWELL v. STATE of Maryland.

No. 199.

Court of Appeals of Maryland.

April 2, 1963.

Albert A. Levin, Baltimore, for appellant.

Herbert L. Cohen, Special Atty., Baltimore (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty. and Abraham Adler, Asst. State's Atty., for Baltimore City, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

BRUNE, Chief Judge.

The appellant, McDowell, was convicted of arson in the Criminal Court of Baltimore in trial before the court, sitting without a jury. He appeals and contends first, that the evidence as a whole was insufficient to support his conviction, and second, that even if the evidence were otherwise sufficient, the conviction cannot stand because it is based upon the testimony of an accomplice which is not sufficiently corroborated.

A fire occurred at about 6:30 P.M. on January 3, 1962, in a second floor apartment at 800 Reservoir Street, Baltimore, which had been rented to Aldrich, and was occupied by him and McDowell, the latter being a subtenant. Aldrich was in arrears on his rent due the landlord; McDowell was substantially up to date on his rent due to Aldrich. On or about January 1, 1962, the landlord told Aldrich to pay up or get out, and Aldrich was to move out of the apartment by January 3rd. As a result, McDowell, too, was preparing to leave, and planned to move at least temporarily to the home of his sister who lived nearby. (At one point he said that he was to have the Reservoir Street apartment after Aldrich left. Why he should leave at all in those circumstances is not explained.)

There is no serious question, if any at all, as to proof of the corpus delicti. The fire did occur, and there was expert testimony by a Captain of the Fire Investigation Bureau that it was not due to spontaneous combustion or faulty wiring or to 'natural causes.' There had, indeed, been a number of separate fires. The inference is clear that they had been wilfully and maliciously set. See 1 Wharton's Criminal Evidence (12th Ed., Anderson, 1955) § 17, p. 48, as to proof of the corpus delicti generally, and Code (1957), Art. 27, § 6; Wimpling v. State, 171 Md. 362, 189 A. 248, as to the wilful and malicious burning of a dwelling. Cf. Bollinger v. State, 208 Md. 298, 117 A.2d 913, involving the burning of a barn and arising under § 7 of Art. 27. As Wharton points out '[p]roof of the defendant's connection with the crime as the operative agent, although essential for conviction, is not part of the corpus delicti.'

The appellant's first contention--alleged insufficiency of the evidence as a whole--goes to the proof of his connection with the crime as an operative agent. Since the principal witness for the State was the accomplice, Aldrich, the questions of the sufficiency of the evidence and of the sufficiency of the corroboration of his testimony are closely related. The evidence showed that Aldrich had returned to the apartment at about six o'clock in the afternoon of January 3rd, that he found that the door to the apartment had been padlocked, that he broke the door open, entered and found some article or articles missing, and that he shortly afterwards left the apartment. Just how long he was in it alone is not clear, but it is clear that McDowell was not there with him. As Aldrich came out of the apartment, McDowell was coming, or had just come, in and was on the stairway, apparently at the top of the steps leading to the second floor, and was eating a sandwich. The two had some conversation in which Aldrich told McDowell of the padlocking of the apartment and of breaking the door open. According to Aldrich, McDowell inquired where he could get some gas and said, 'we should burn the place down,' and Aldrich told him to 'go help himself.' Aldrich said that he then went down the stairs and went to a public telephone booth about a block away to call the landlord, and that a few minutes later McDowell came running from the apartment and said 'I got it going.'

A plumber who had been called to open a stopped drain from a sink in one of the apartments arrived at or very soon after the time that Aldrich came out of the front apartment and inquired whether the trouble was in that apartment. Aldrich said that it was not and suggested that the plumber try the rear apartment, which he did. He said that he saw McDowell at the head of the stairs eating a sandwich, that he saw Aldrich go downstairs, and that at that time he saw McDowell still eating his sandwich at the top of the stairs at a point twelve or fifteen feet from the door to the front apartment. Some minutes later the plumber went down the stairs and out to his truck to get some tools. As he went outside he saw flames coming from the second floor front apartment and called the fire department. The fire engines arrived in a very few minutes.

Both Aldrich and McDowell testified that they were together after leaving the apartment, but their accounts differed in some respects. The chief difference was that Aldrich said that he went out first and McDowell said that they left the apartment together. On this point the testimony of the plumber supports Aldrich rather than McDowell.

Aldrich gave two quite different statements as to when he had returned to the apartment from a trip to Connecticut. His first statement was that he had returned early on January 3rd, his second that he had returned on December 30th. He explained the difference as caused by confusion due to his having his mind fixed on January 3rd, the date of his arrest. He was arrested at a railroad station as he was about to return to Connecticut. He had left most of his clothes in a suitcase in a locker there for several days.

McDowell gave conflicting accounts about returning to the apartment on the afternoon of January 3rd and about seeing Aldrich there. At his preliminary hearing in the Municipal Court he denied having been in the building at about the time of the fire and denied having seen Aldrich at any time after the morning of January 3rd. His testimony at the trial was to the contrary as to each. The difference was not explained.

No one testified to seeing McDowell enter the apartment in the late afternoon or early evening of January 3rd. Aldrich said that he had not seen McDowell in the apartment, McDowell denied that he had entered it, and the plumber had not seen him enter it. McDowell testified that some clothing belonging to him was on the landing at the second floor when he was eating his sandwich. He denied having gotten this clothing from the apartment, though he testified that he was going there to get his clothes. Who put them on the landing, when they were put there, and what became of them are not shown. Aldrich denied having seen them.

McDowell was tried on a charge of burglary as well as arson. At the conclusion of the State's case, the court granted a defense motion for a directed verdict on the burglary charge and denied a similar motion on the arson charge. When McDowell took the stand in his own behalf, he admitted generally on direct examination and more in detail on cross-examination that he had been convicted of several offenses. One of them was burglary.

The trial judge who heard McDowell's case had tried Aldrich shortly before and had apparently found him guilty of arson under those provisions of § 6 of Art. 27 of the Code, above cited, which make anyone who aids, counsels or procures the burning of a dwelling guilty of arson as a principal. Aldrich was also convicted of burglary of the same premises. (We assume this grew out of his breaking in when he found the apartment padlocked, but this is not clear from the testimony in the appendix in this case.) The trial judge commented at the end of McDowell's trial that he had to determine whether he should believe McDowell or Aldrich, and he expressly stated that he believed Aldrich. He also recognized that he had to have something beyond Aldrich's statement to warrant a finding of guilt against McDowell.

Leaving to one side for the moment the question of corroboration, we think that the evidence and the inferences which might properly be drawn therefrom were sufficient to enable the trial judge to find McDowell guilty beyond a reasonable doubt of the crime of arson. Arson is likely to be a clandestine offense and proof of it must often be by circumstantial evidence and inferences which may reasonably be drawn therefrom. See Bollinger v. State, supra, 208 Md. at 306, 117 A.2d at 917. Here we have McDowell within twelve or fifteen feet of the door to the apartment, the lock on which had been broken, so that there was no obstacle to his entry. We also have his statements to Aldrich indicating both a motive for committing the offense and an intention to commit it. There is no showing that the fire had been started prior to the time when Aldrich left, but it was burning a little later--twenty to thirty minutes later, according to the findings of the trial judge. This was after McDowell had had the opportunity to enter the apartment and set it afire. The plumber's testimony indicates that Aldrich had left and that McDowell was still there alone a few feet from the unfastened apartment door. The proof of the corpus delicti was ample. Assuming for the moment that there was sufficient corroboration of the testimony of the defendant's accomplice, we cannot say that the trial judge who saw and heard the witnesses was clearly in error in finding McDowell guilty on the evidence before him and reasonable inferences therefrom. Such a finding on our part would be necessary to warrant us in reversing the conviction on the ground of insufficiency of the evidence. Maryland Rule 886 a; Foster v. State, 230 Md. 256, 186 A.2d 619; Espin v. State, 230 Md. 298, 186 A.2d 589; (to cite only two of many cases). The credibility of witnesses is primarily for the determination of the trier of...