Poff v. State, 166

• Decision Date: 29 February 1968
• Docket Number: No. 166,166
• Citation: 3 Md.App. 289,239 A.2d 121
• Parties: John Preston POFF v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 289

3 Md.App. 289

239 A.2d 121

John Preston POFF v. STATE of Maryland.

No. 166.

Court of Special Appeals of Maryland.

Feb. 29, 1968.

James C. Chapin, Hyattsville, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., and Benjamin R. Wolman, State's Atty. and Asst. State's Atty. for Prince George's County, respectively, Upper Marlboro, on the brief, for appellee.

Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

PER CURIAM.

John Preston Poff appeals from his convictions by a jury in the Circuit Court for Prince George's County of breaking a dwelling house with intent to steal and grand larceny and the concurrent sentences of four years on each conviction. He complains that the lower court improperly denied the admission of certain testimony and that the evidence was not sufficient to sustain the convictions.

The appellant first contends that the refusal of the lower court '* * * to admit testimony of an impeaching witness as to the reputation of a witness for the State * * * was prejudicial error'. He proffered, out of the presence of the jury, the testimony of Raymond Rudolph Mileski, who was indicted with him, to impeach the prosecuting witness. The proffered testimony was that the prosecuting witness was a 'fence'-a receiver of stolen goods. ¹ 'The long settled practice, both in England and in this State * * *, requires that the witness called to prove character, either good or bad, should be interrogated as to his means of knowledge of the general reputation of the person in question among his neighbors, and, what that reputation is'. Sloan v. Edwards, 61 Md. 89, 103. The inquiry must be as to his reputation for truth and veracity. Hoffman v. State, 93 Md. 388, 389, 49 A. 658. The examination must be confined to general reputation, and not be permitted as to particular facts. Richardson v. State, 103 Md. 112, 118, 63 A. 317; Rau v. State, 133 Md. 613, 616, 105 A. 867. Compare Comi v. State, 202 Md. 472, 97 A.2d 129. 'The regular mode of examining into the character of the person in question, is to ask the witness whether he knows his general reputation (for truth and veracity) among his neighbors,-what that reputation is,-and whether, from such knowledge, he would believe him upon his oath'. Sloan v. Edwards, supra, 61 Md. at 103. In the instant case Mileski did not know the prosecuting witness, did not know others who knew him and had only heard his name mentioned several times by people Mileski did not know. 'I can't even recall the time or the place, but I was familiar somewhat with his name. * * * I never had any personal dealings with him'. We think it clear that the proffered testimony was not properly admissible. Not only did Mileski not know the general reputation of the prosecuting witness for truth and veracity among his neighbors, but the inquiry here proposed had no reference to the general reputation of the witness for truth and veracity. It by no means follows that a reputation for being a 'fence', even if shown, land here it was not shown, necessarily includes a bad reputation for veracity. The lower court did not err in refusing to admit the testimony.

The appellant also proffered the testimony of Mileski to the effect that Mileski did not commit the crime for which he and the appellant were indicted. We think such testimony was in no way relevant to the guilt or innocence of the appellant. The appellant concedes that he is unable to cite any authority 'directly on the question of the relevancy' of such testimony. We know of no authority holding it to be relevant and doubt the existence of any. The appellant urges that, by analogy, Md.Code, (1965 Repl.Vol.), Art. 35, § 4, as interpreted in Kinnard v. State, 183 Md. 377, 38 A.2d 92, permits the testimony proffered. The statute provides that the person charged, at his own request, shall be deemed a competent witness. Kinnard held that one co-defendant is competent to testify against another co-defendant, on trial together, under a joint indictment, even over the objection of the defendant against whom the testimony is proffered. 183 Md. at 383, 38 A.2d 92. Neither the statute nor the case are apposite here, where Mileski's testimony would be that he, Mileski, although indicted, was innocent of the crime. See Boone v. State, 3 Md.App. 11, 237 A.2d 787, filed January 24, 1968. We note that at the request of the appellant the docket entries were admitted in evidence, and that the docket entries showed that the case against Mileski had been settled. We find no error in the refusal of the lower court to admit the testimony.

With regard to the sufficiency of the evidence, the contention goes to the...