Reed v. State, 422
| Decision Date | 06 June 1969 |
| Docket Number | No. 422,422 |
| Citation | 7 Md.App. 200,253 A.2d 774 |
| Parties | Allen R. REED v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Alexander R. Martick, Baltimore, for appellant.
James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., States Atty. for Baltimore City and Barrett W. Freedlander, Asst. States Atty. for Baltimore City, on the brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Appellant was charged under two separate indictments with (1) common law assault upon Shirley Phillips on August 13, 1968, and (2) with having attempted, on August 17, 1968, to break and enter the dwelling house of Robert L. Phillips 'with intent then and there the goods and chattels, monies and properties of the said Robert L. Phillips, in the same dwelling house, * * * feloniously to steal, take and carry away * * *.' 1 The appellant was convicted of both offenses by the court sitting without a jury and was sentenced to two consecutive two-year terms under the jurisdiction of the Department of Correction. Appellant contends on this appeal that the evidence was not legally sufficient to support his conviction for attempted breaking and entering in that the State failed to prove either the attempt to break or that he had the requisite larcenous intent, as charged in the indictment. 2
There was evidence adduced at the trial showing that Shirley Phillips, the daughter of Esther and Robert Phillips, had for some time been dating the appellant, who lived around the corner from the Phillipses; that on August 13, 1968, the appellant assaulted Shirley with a hammer, as a result of which a warrant had been obtained on August 15 for his arrest; that on the 15th, appellant was observed by Mrs. Phillips smashing her husband's car window; that appellant was thereafter observed by Mrs. Phillips on August 16 in a drunken condition on the street, and later that night he phoned her and said 'you had a warrant out for me, didn't you,' and that 'you are all going to pay for it, you watch and see.' There was also some indication from the evidence that an attempt had been made to set a fire in the cellar of the Phillips' home and that appellant was suspected by the Phillipses of that offense.
Esther Phillips testified that at approximately 1:30 a. m. on August 17 she was home watching television when she heard a 'racking to the door' which 'got worsey and worsey' as she listened. Mrs. Phillips awakened her sleeping husband.
Mr. Phillips testified that after his wife awakened him he got his pistol and fired from four to seven shots through the closed door; that he 'has an idea' at whom he was shooting and upon investigation he observed appellant runing from his porch. Phillips testified that there were 'marks' on the door near the latch.
While both Mr. and Mrs. Phillips testified that they did not hear the doorbell ring, the investigating police officer, William Burch, testified that Mr. Phillips told him that appellant had rung the bell and when no one answered, he applied force to the door by pushing on it, at which time he, Mr. Phillips, fired through the door. Officer Burch further testified that he observed no jimmy marks on the door, and that appellant had called the police for assistance immediately after the shooting.
Appellant testified that he had known Shirley Phillips for 8 1/2 months prior to August 17; that when he heard about the outstanding warrant for his arrest, he went to the Phillips's home about 1:00 a. m. and rang the bell, after which he sat on the side of the porch waiting for a reply; and that the shots grazed his chest sideways as he sat on the floor of the porch. He testified that his purpose in going to the Phillips' home was to come to some agreement about a fire in the Phillips' cellar and to tell Mr. and Mrs. Phillips that he would not see their daughter any more if they wouldn't press the warrant. Appellant testified that he did not realize it was so late when he went to the Phillips' home-that he was on his way home when he stopped there, the Phillips' home being just around the corner from his own home.
In finding appellant guilty, the court found as a fact that appellant had rung the doorbell of the Phillips' home; that he didn't try to jimmy the door;...
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