Shipley v. State, 9

• Decision Date: 16 October 1959
• Docket Number: No. 9,9
• Citation: 154 A.2d 708,220 Md. 463
• Parties: Walter Mose SHIPLEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 463

220 Md. 463

154 A.2d 708

Walter Mose SHIPLEY v. STATE of Maryland.

No. 9.

Court of Appeals of Maryland.

Oct. 16, 1959.

Leonard A. Orman, Baltimore, for appellant.

James O. Gentry, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty., Baltimore, for Baltimore City, James W. Murphy, Asst. State's Atty., Baltimore, for Baltimore City, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellant, Walter Mose Shipley, was convicted, with John Miller, Jr., of breaking and entering a storehouse with an intent to steal goods to a value of $100 or more and was sentenced to serve not more than two years in the Maryland State Reformatory for Males. The appellant appeals from this conviction, contending that the State failed to prove that the goods stolen from the warehouse were of a value of $100 or more, and that the evidence was insufficient to warrants his conviction as a participant in the crime.

On December 5, 1958, sometimes before 11:15 P.M., a dry cleaning establishment on North Avenue in Baltimore was broken into and 69 articles of clothing were removed therefrom. Through the records of the business the owner, Mr. Anthony Mannone, compiled a list of the missing articles of clothing and this list was turned over to the police. Two officers found Shipley and Miller at about 3:30 A.M., December 6, 1958, sleeping in a car and they found in the car a bundle of clothes which was later offered in evidence and identified by Mr. Mannone as part of the goods stolen from his store. Another bundle of clothes was recovered at Miller's home and this, along with a coat which an officer said Miller was wearing, was also identified by Mr. Mannone as coming from his store. On the basis of this evidence Shipley and Miller were arrested.

The indictment was in four counts, the first of which charged breaking and entering with felonious intent. The appellant was convicted on this count.

The State produced Mr. Mannone as a witness. He read a complete list of the articles stolen from his dry cleaning plant and he identified, as having been taken from his plant, the articles found in Shipley's car, and in Miller's house, and the coat worn by Miller. Mr. Mannone was asked by the State to value the goods stolen. He admitted that he was not a professional appraiser but insisted that he definitely thought the clothes were worth more than $100, and estimated their worth to be around $300. Counsel for the appellant objected to the admission of this testimony because Mannone was not in the retail clothes business and did not have any other qualifications to make him an expert on the value of clothes, and error is alleged as to the use of his testimony to establish the value of the stolen articles.

It is necessary for the State, in order to establish felonious intent in this case, to show that the defendant had an intent to steal goods worth $100 or more. Thompson v. State, 184 Md. 555, 42 A.2d 113; Felkner v. State, 218 Md. 300, 146 A.2d 424. In the instant case the State attempted to do this by two methods. First, it offered in evidence such of the stolen articles as had been recovered. Secondly, the State asked the person from whose possession the goods were stolen to list all of the stolen articles and to estimate their value. The appellant argues that because Mr. Mannone was not an expert on the value of used clothing his testimony was incompetent, and that because it was the only testimony to establish the value of the stolen goods that the value thereof was not proved and hence that the conviction cannot stand. This argument we find not to be sustainable.

There is some authority for the view that a 'special owner' of goods (as he is sometimes called), such as a bailee in Mr. Mannone's position, can testify as to the value of goods stolen while in his custody, without being qualified as an expert on the value of the property in question. 2 Wharton, Criminal Evidence § 550 (12th Ed., 1955); Narango v. State, 87 Tex.Cr.R. 493, 222 S.W. 564. This rule is apparently an extension of the rule under which an owner may testify to the value of his property, without his having to be qualified as an expert. See Bresnan v. Weaver, 151 Md. 375, 135 A. 584. Such an extension of the rule has not been passed upon by this Court and we need not reach the question here.

Likewise, we do not find it necessary to decide whether or not Mr. Mannone's testimony was admissible as a proper exercise of the discretion of the trial judge because of Mr. Mannone's familiarity with the values of used clothing, which (despite his denials of expert knowledge) he probably possessed because of the business in which he was engaged. (His testimony suggests some knowledge of values based upon claims for possibly lost or damaged articles of clothing.) Cf. Pennsylvania Threshermen and Farmers' Mutual Casualty Ins. Co. v. Messenger, 181 Md. 295, 302, 29 A.2d 653.

Even if Mr. Mannone's testimony was not admissible on either or both of the grounds above suggested (questions which we do not decide), we think that its admission would constitute, at most, harmless error. In such a case as this, where a portion of the stolen goods was before the trier of facts, together with a detailed list of the...