Seward v. State

• Decision Date: 01 December 1955
• Docket Number: No. 34,34
• Citation: 208 Md. 341,118 A.2d 505
• Parties: James P. SEWARD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 341

208 Md. 341

118 A.2d 505

James P. SEWARD v. STATE of Maryland.

No. 34.

Court of Appeals of Maryland.

Dec. 1, 1955.

Walter H. Moorman, Bethesda, for appellant.

Stedman Prescott, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Alger Y. Barbee, State's Atty., Rockville, and Leonard T. Kardy, Deputy State's Atty., Silver Spring), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal by James P. Seward, appellant, from a judgment and sentence by the trial judge, sitting without a jury, for malicious destruction of property.

The appellant was indicted, together with James L. Fieser, Jr., in two indictments. The first charged them with statutory arson on May 22, 1954. The second indictment, among other things, charged them with malicious destruction of property on the same date. The appellant was convicted on the third count of the second indictment for malicious destruction of property, the air conditioning unit tower owned by Hot Shoppe, Inc., in violation of Code, 1954 Supplement, Article 27, § 119. From that conviction appellant appeals to this Court.

On the evening of May 21, 1954, the appellant and Roy Carroll Tuerke attended a motion picture show in Washington, D. C. They left there in an automobile driven by Tuerke and proceeded to the Hot Shoppe in Bethesda, Maryland. There, about 11 P.M. they met and talked to Henry Gibbs and James L. Fieser. After conversing for about twenty minutes, the four started in the car driven by Tuerke to Gibbs' home in Kenwood, Maryland. Tuerke testified that they did not drive all the way to Gibbs' home but parked down the street for fear that Gibbs' mother might detect his presence and require him to stay home, as the hour was late. The other boys remained in the car. Gibbs entered his home. Gibbs testified that he there procured four and one-half cans filled with black DuPont powder, and also his jacket. These were the cans in which the powder was originally purchased. He had previously inserted in the cans dynamite caps and fuses. He came out of the house with two cans in his jacket and two in his back pocket, not for the purpose of concealing them, but in order to carry them conveniently. He said he was carrying them 'out to plant the bombs and get what pleasure I could get out of seeing it.' All four boys knew Gibbs had the cans when he returned to the car. Upon his return they discussed setting off one of the bombs at the Bethesda Hot Shoppe, but decided not to do it there as there were too many people in the vicinity. They then drove behind the Bethesda-Chevy Chase High School where 'there was some talk of a fight or ruckus.' This did not take place and they decided to drive 'indiscriminately around.'

They then proceeded to the Hot Shoppe in Silver Spring, Maryland, and drove the car first into an alley close by. All four boys got out of the automobile and walked a short distance. Gibbs removed one of the cans from his pocket and all four boys considered and discussed whether they should put it in one of the trash cans in the alley, but decided not to place it there. They all returned to the car which was 'jockeyed' into the best position 'so they could leave the other way.' Gibbs testified that he and Fieser either got into the car and got out again or walked two or three steps over to the water tower of the Silver Spring Hot Shoppe with a bomb in his hand in full view. This water tower was about eighteen feet high and eight feet square, made of one-eighth inch steel on a platform of cement. It was used to cool the water used in the Hot Shoppe's refrigeration. On the spur of the moment Gibbs put one of the bombs in the water tower. Gibbs and Fieser then returned to the back seat of the car and Tuerke, with appellant on the front seat, drove it about one or two hundred yards away where it was stopped for the purpose of hearing the explosion. In possibly five minutes the explosion occurred. As a result the bottom of the tower was buckled out and the screen, which kept the dust and debris out of the bottom of the tower, was blown a distance of from eighteen to twenty feet. After the explosion the four boys proceeded toward Bethesda and on the way discussed setting off another bomb. Gibbs asked Tuerke to stop the car. Gibbs took one of the bombs out of his pocket, making no effort to conceal it, and got out of the car. Fieser went with him and the bomb was placed in the mail slot of the home of Mr. William J. McCarthy in Bethesda. The boys did not wait for the bomb to go off but drove Gibbs to his home where he got out of the car. The bomb exploded. Mr. McCarthy was awakened and went into his hall which was filled with smoke. He went down to the first floor and found brown marks all over his front door which was burned and blistered. The screen door had been blown out.

On June 8, 1954, the Montgomery County police contacted the appellant and asked him to come to the Bethesda Police Station, at which place he made a statement. No objection was made that this statement was involuntary. Seward said on May 21, 1954, he, Tuerke, Fieser and Gibbs were riding in Tuerke's car. They met at the Hot Shoppe in Bethesda and a short time thereafter went to Gibbs' home where he picked up some gunpowder. They then went to the Hot Shoppe in Silver Spring where a bomb was set off in a water tower. After that they left and returned to Bethesda where a bomb was placed in a mail slot in a house on Wessling Lane. He told the police that he knew all about the bombs, who was making them and who was setting them off, but the night of May 21st was the only time he had been with the other boys.

The Court of Appeals should not reverse a judgment of conviction in a nonjury case unless it finds that the trial court's conclusion was clearly erroneous. General Rules of Practice and Procedure, Part 4, Rule 7(c); Edwards v. State, 198 Md. 132, 81 A.2d 631, 83 A.2d 578, 26 A.L.R.2d 874; Kaufman v. State, 199 Md. 35, 85 A.2d 446; Anello v. State, 201 Md. 164, 93 A.2d 71; Willis v. State, 205 Md. 118, 106 A.2d 85. This Court determines whether there was any evidence, or proper inference from the evidence, upon which the trial court could find the defendant guilty. If the record shows such evidence or proper inference, the Court of Appeals cannot find that the decision of the trial court was clearly erroneous. Floyd v. State, 205 Md. 573, 582, 109 A.2d 729.

The offense for which the appellant was convicted being a misdemeanor, all accessories were charged as principals. Roddy v. Finnegan, 43 Md. 490, 503-504; Watson v. State, Md., 117 A.2d 549. It was said by Judge Delaplaine in the case of Anello v. State, supra, 201 Md. 168, 93 A.2d 72, where appellant was convicted of larceny of use of property: 'It is clear that no one, whether principal perpetrator or aider or abettor, can violate this statute unless he possesses criminal intent. The legal definition of the word 'aider' is not different from its meaning in common parlance. It means to assist, support or supplement the efforts of another. The word 'abettor' means in law one who instigates, advises or encourages the commission of a crime. Thus the word 'abet' may import that one is present at the commission of a crime without giving active assistance. Creasy v. Commonwealth, 166 Va. 721, 186 S.E. 63; State v. Epps, 213 N.C. 709, 197 S.E. 580; State ex rel. Martin v. Tally, 102 Ala. 25, 15 So. 722, 737; State v. Western Union Telegraph Co., 13 N.J.Super. 172, 80 A.2d 342, 355. * * * To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential that he should in some way advocate or encourage the commission of the crime. McKinney v. Commonwealth, 284 Ky. 16, 143 S.W.2d 745.' In State ex rel. Wisconsin Development Authority v. Dammann, 228 Wis. 147, 277 N.W. 278, 280 N.W. 698, the Supreme Court of Wisconsin held that the word 'encourage' had no technical meaning. The cases of United States v. Strong, D.C., 263 F. 789, and United States v. Ault, D.C., 263 F. 800, 811, adopted Webster's definition of 'encourage' to mean 'giving courage to; inspiring with courage, spirit, or hope.'

In Creasy v. Commonwealth, supra, a young man, twenty-one years of age and of good reputation, but intoxicated at the time, encountered several friends and went with them while the others committed robbery. He knew of the past bad records of his associates and that they were armed. The evidence...