Thomas v. State

• Decision Date: 24 July 1967
• Docket Number: No. 263,263
• Citation: 1 Md.App. 528,231 A.2d 915
• Parties: Vaughn THOMAS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 528

1 Md.App. 528

231 A.2d 915

Vaughn THOMAS v. STATE of Maryland.

No. 263.

Court of Special Appeals of Maryland.

July 24, 1967.

Frank Cannizzaro, Jr., Baltimore, for appellant.

Jon F. Oster, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Jon F. Oster, Asst. Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, on brief, for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and DANIEL T. PRETTYMAN, Special Judge.

ORTH, Judge.

On June 23, 1966, the appellant was convicted of being a rogue and vagabond by Judge J. Harold Grady, sitting in the Criminal Court of Baltimore, without a jury. The appellant had been convicted on a prior occasion of three other offenses, the sentences for which were suspended and he had been placed on probation. Judge Grady found him guilty of violation of probation, struck out the probation and imposed the sentences that were suspended. He sentenced the appellant for the offense of being a rogue and vagabond to imprisonment for a term of one year, to run consecutive with the sentence in one of the prior convictions.

The appellant raises three contentions on this appeal:

1) The evidence was not sufficient to sustain the conviction of being a rogue and vagabond.

2) The court committed reversible error in convicting the appellant of being a rogue and vagabond when the appellant was not arrested at the scene of a crime and had no implements in his possession.

3) If the judgment is reversed, the conviction of violation of probation must be reversed.

At the close of the evidence offered by the State, appellant moved for a judgment of acquittal. The motion was denied. Thereafter, the appellant offered evidence by testifying in his own behalf and, by so doing, withdrew his motion. Maryland Rules, 775 b. At the close of all the evidence he again moved for a judgment of acquittal and the motion was denied.

There was before the court evidence by stipulation or testimony substantially as follows. The dwelling of Meyer Bank at 3324 Sequoia Avenue, in Baltimore City was broken into on May 6, 1966, about 1:00 P. M. The house was entered by breaking a pane in the rear cellar door and $25 was taken. Edward A. Brown, a relative of Mr. Bank, who lived at 3405 Sequoia Avenue, was on his lawn at this time and saw five boys at the corner of Sequoia Avenue and Edgewood Road. Three of the boys went towards the rear of 3324 Sequoia Avenue and were out of his sight 'for some time'. Two of them remained near the corner. A police patrol car arrived at the scene and all five of the boys ran away. The patrol car and a Tactical Squad car were responding to a call that a group of boys were breaking into a house at 3324 Sequoia Avenue. An officer in the patrol car saw three of the boys running and yelled to the Tactical Squad car which pulled to the curb, blocked the passage of the boys and apprehended them, one of them being the appellant. Later the two other boys were apprehended near Towanda Avenue. When the car approached the boys dove into the bushes and then ran and were caught after a chase. Brown could not identify and of the boys apprehended. The police found a latent fingerprint on the glass removed from the basement door. The latent print was removed from the glass about 2:45 P.M. and was found to be identical with the print of the right middle finger of the appellant. The lift of the latent print, an enlargement thereof, and the print of the right middle finger of the appellant were admitted in evidence. Motions for judgment of acquittal at the close of the evidence offered by the State were granted as to the three boys tried with the appellant. The appellant took the stand. He testified that he and two of the other boys, George Pulley and Marcellus McGee, were going over to his house. One of them, George Pulley said 'he wanted to make a little extra money' and asked the appellant to help him and went in the back of the house at 3324 Sequoia Avenue. Pulley 'stayed back there a couple of minutes'. Pulley called to the appellant who went to the back of the house and saw Pulley standing 'down some steps to the basement'. Pulley handed the appellant the window pane, saying, 'Hold it a minute, break it up so I can go in there'. The appellant handed it back stating he did not want to have anything to do with it, and then left. He denied going in the house or of having any intention to do so. He said that he had been convicted of three cases of nighttime burglary.

The thrust of the appellant's argument in support of his first two contentions is that since the appellant was not physically apprehended by the police in or upon the dwelling house he is not within the provisions of the statute. He urges that since the State produced no evidence that placed him at the scene except the fingerprint evidence, the motion for judgment of acquittal should have been granted at the end of the State's case. He overlooks Maryland Rule 775 b. As the motion was made again at the close of all the evidence, the question of the sufficiency of the evidence to sustain the conviction is properly to be considered with respect to all the evidence before the trial court.

Maryland Code, (1967 Replacement Volume), Article 27, § 490, provides:

'If any person shall be apprehended having upon him any picklock, key, crow, jack, bit, or other...