Tasco v. State

• Decision Date: 21 November 1960
• Docket Number: No. 46,46
• Citation: 223 Md. 503,165 A.2d 456
• Parties: Charles H. TASCO and Bob Curry v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 503

223 Md. 503

165 A.2d 456

Charles H. TASCO and Bob Curry v. STATE of Maryland.

No. 46.

Court of Appeals of Maryland.

Nov. 21, 1960.

Dissenting Opinion Nov. 29, 1960.

Charles Cahn, II, Baltimore (Martin B. Greenfeld, Baltimore, on the brief), for Bob Curry.

James H. Norris, Jr., Spec. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris and Dene Lusby, State's Atty. and Asst. State's Atty. of Baltimore City, Baltimore, on the brief), for appellee.

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

PRESCOTT, Judge.

This is an appeal by Charles H. Tasco and Bob Curry from the judgments and sentences respectively entered against each of them as a result of their convictions by a judge of the Criminal Court of Baltimore, sitting without a jury, of statutory burglary. After their convictions the Supreme Bench of Baltimore City, who pass upon the weight as well as the sufficiency of the evidence, Auchincloss v. State, 200 Md. 310, 89 A.2d 605, denied their motions for new trials.

In order to evaluate properly the evidence adduced by the State and the proper and permissible inferences therefrom, it is necessary to have the scene of the crime clearly in mind, as it, when considered with the other evidence, discloses, with clarity and precision, just what happened, in the early morning hours of October 25, 1959, in the rear of the burglarized premises. The reporter will, therefore, be requested to insert a sketch (the appellants') of the locality.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At about 1:24 a. m. on October 25, 1959, Officer Catania was operating a police patrol car in the vicinity of Bruce and Baker Streets, and Officers Anderson and Webster were operating Radio Car 74 somewhere in the general locality. Officers Anderson and Webster received a call to go to Baker and Bruce Streets (the location of the Baltimore Food Market, the burglarized store) 'to investigate someone in the store at that location.' (Emphasis supplied.) They proceeded to answer the call, intending to go north on Mount Street, then west on Baker Street to their destination. While they were proceeding north on Mount Street, Officer Catania turned into Bruce Street from Baker Street. (This last statement is not only a permissible inference for the trial judge to have drawn, but the only proper one; as we shall see in just a moment that the defendants, when first seen by Officer Catania from the intersection of Baker and Bruce Streets, were only five feet from the safe, and, when first observed by Officers Anderson and Webster from the intersection of Mount Street and the alley, they were twenty to thirty feet therefrom.) Officer Catania, when he turned into Bruce Street, saw 'about three subjects,' within five feet of the stolen safe, who immediately started to run; in other words, he 'flushed the covey.' At just about this time, Officers Anderson and Webster, who had been proceeding north on Mount Street, arrived at its intersection with the alley. They immediately observed three men, twenty to thirty feet from the safe, runing east on the alley towards them. One who turned out to be the appellant Curry ran past Officer Webster in the alley and turned south on Mount Street, where he was apprehended by Officer Anderson, within the block. In the meantime, Officer Catania proceeded the short distance down to the vacant lot, where he left his car and joined in the case. Within a few moments, he and Officers Webster and Anderson apprehended the other appellant, Tasco, and a codefendant, one Brewer (who was also convicted, but did not appeal), in the rear yards of the row houses on Baker Street, shown on the sketch. One man escaped. While Officer Cantania testified that he could not specifically identify the three men who were apprehended, as the same subjects that he had first seen when he turned into Bruce Street, any proper evaluation of the above testimony (and that to be mentioned later) leaves little, if any, doubt that they were.

Further investigation showed a Chevrolet panel truck, which had been stolen, at the approximate location shown on the sketch, with a safe leaning against its rear; and a four-wheel hand-cart standing nearby. The cart and the safe were identified by the manager of the burglarized store.

The three suspects were taken to the Western District station and there interrogated. Brewer was first confronted with appellant Robert Curry. Brewer looked at Curry and said he knew him as Robert Carey. Curry stated he did not know Brewer as Nathan Brewer. Brewer said he saw Curry standing about three or four feet from the safe, but he was not pushing it. Curry stated he had heard 'what Nathan Brewer signed,' and denied being near the safe, but stated that he saw Brewer at a 'crap' game in the rear of the row houses on Baker Street.

When Brewer and appellant Tasco were confronted with each other, Brewer stated that he did not know Tasco by name, but had seen him before and he saw Tasco standing in the alley, in the rear of the Food Market, but did not see him touch the safe. Tasco denied seeing Brewer at anytime until after he was arrested, and also denied pushing the safe, claiming he was just 'walking through the alley.'

Further testimony established that the manager of the store had closed it at about 10:00 p. m. At about 1:30 a. m. he received a telephone call that someone had broken into the store, and he went directly there. Upon his arrival, he found a hole in the roof and the locks broken on the rear doors. A safe, a hand-cart and two bags of pennies were missing from the store; and a quantity of cigarettes had been moved from the front of the store to its rear. The safe measured about eighteen inches across the top, stood about thirty inches high and the witness thought it weighed about 1,300 pounds. The safe that was leaning against the stolen truck in the rear and the hand-cart belonged to the owner of the store. The bags of pennies were never recovered and no fingerprints were obtainable; however, at least one man escaped and a pair of black leather gloves were found on Tasco.

The function of this Court, when it reviews a criminal case that has been tried by the court, sitting without a jury, was succinctly stated in Cooper v. State, 220 Md. 183, 152 A.2d 120, 124, to be as follows: 'The question is not whether we might have reached a different conclusion from that of the trial court, but whether the trial court had before it sufficient evidence upon which it could fairly be convinced beyond a reasonable doubt of the defendant's guilt of the offense charged; and the verdict of the trial court is not to be set aside on the evidence unless clearly erroneous.' The evidence must, therefore, be examined with this standard in mind, if we are not to do violence to our previous decisions.

Of course, it is elementary that the mere presence of a person at the scene of a crime is not, of itself, sufficient to establish that that person was either a principal or an accessory to the crime. Watson v. State, 208 Md. 210, 117 A.2d 549; Judy v. State, 218 Md. 168, 146 A.2d 29. But presence at the immediate and exact spot where a crime is in the process of being committed is a very important factor to be considered in determining guilt; and in this case the trial court was not required to believe that the appellants were mere observers of a crime that was being committed, nor that it is a case where a crime had been committed one hour, one day or one week before, and the defendants happened, by chance, to come to the place where the crime had been committed. Here we have a situation which permitted the trial court to draw a rational inference that the offenders were interrupted during the actual asportation of the potential fruits of the crime.

At about 1:24 a. m., on a day late in October, an unusual hour for ordinary youths to be prowling in alleys, but not at all unusual for burglars to ply their nefarious desires for loot, the officers received a call 'to investigate someone in the store.' Within a matter of minutes, two patrol cars arrived, almost simultaneously, at the scene of the crime; one at the intersection of Mount Street with the alley; the other at the intersection of Baker and Bruce Streets. When first seen by Officer Catania, the appellants were about five feet from the safe (Brewer also said he saw Curry within three or four feet thereof). They immediately fled. Flight, alone, is of course, not controlling; but it, also, is a factor that may be considered in determining guilt. Clay v. State, 211 Md. 577, 584, 128 A.2d 634. The appellants, not realizing that the other officers had arrived at the intersection of Mount Street and the alley, ran to the east and one (Curry) ran past Officer Webster, but was apprehended in less than a block's distance by Officer Anderson. The other appellant and one of the appellants' copartners in the commission of the burglary evidently realized they were boxed-in by the police; hence they attempted to hide in the rear yards on the northern side of the alley, but were apprehended within a few minutes. One of the subjects escaped through a small opening of some kind. Within a few feet from where they were apprehended and at the location from whence they had run, was a stolen Chevrolet truck with the safe leaning against it; and the hand-cart was nearby. The fact that the safe was leaning against the truck (and not in it) and the fact that the cigarettes, which had been moved from the front of the store to its rear, were still in the store, when coupled with the additional fact that the police had been notified just a few minutes before that someone was in the store, constitute sufficient evidence to support the inference, as stated above, that the crime was in the process of perpetration when the police arrived, and the appellants, with at least two others (their convicted codefendant and the one who...