Tipton v. State

• Decision Date: 17 November 1969
• Docket Number: No. 3,3
• Citation: 8 Md.App. 91,258 A.2d 606
• Parties: Charles William TIPTON a/k/a John Rocco Di Rossi v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 91

8 Md.App. 91

258 A.2d 606

Charles William TIPTON a/k/a John Rocco Di Rossi v. STATE of Maryland.

No. 3.

Court of Special Appeals of Maryland.

Nov. 17, 1969.

Certiorori Denied March 31, 1970.

W. Lee Harrison, Towson, for appellant.

T. Joseph Touhey, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., and H. Chester Goudy, Jr., State's Atty., and Asst. State's Atty., for Baltimore County respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

THOMPSON, Judge.

Charles William Tipton, a/k/a John Rocco Di Rossi, the appellant, was convicted of assault with intent to murder, attempted subornation of perjury, and carrying openly a pistol with intent to injure another, in the Circuit Court for Baltimore County, Judge John N. Maguire presiding without a jury. He was sentenced to concurrent terms of ten years on each of the first two charges and three years on the third charge. He contended in his written brief that all three convictions should be reversed since they were the result of an illegal investigation by a state police officer, but this contention was abandoned at the oral argument. He alleges the assault with intent to murder conviction and the deadly weapon conviction should be reversed because of double jeopardy and the attempted subornation of perjury conviction should be reversed because of an insufficiency of evidence.

There was evidence that Trooper Lawrence Ireland of the Maryland State Police Intelligence Unit secured a job as a doorman at a cocktail lounge known as the Joppa Inn in Baltimore County for purposes of conducting an undercover investigation of narcotic traffic at this nightclub. On March 14, 1968, at approximately 9:30 P.M Trooper Ireland, still posing as a doorman, observed Paul Nicholas, a former employee, approach Tipton and demand payment of $8. in back wages. An argument ensued but Nicholas left and rejoined his female companion at a table. Ireland observed Tipton walk out the front door of the lounge to his automobile and return carrying a pistol. Tipton, running to the booth where Nicholas was sitting, proceeded to violently pistol-whip him about his head and shoulders. During the struggle, the pistol was knocked from Tipton's hand. Ireland testified that he immediately picked it up, extracted six live cartridges and threw it back on the floor. Tipton then knocked Nicholas to the floor, located the gun where Ireland had thrown it, stood directly over Nicholas with the pistol pointed at his body and pulled the trigger. When the unloaded weapon failed to fire, Tipton again proceeded to pistol-whip Nichols as the latter attempted to crawl and stumble outside. Outside the cocktail lounge, Tipton again pointed the pistol at Nicholas and yelled 'I'll kill you' and thereafter attempted several times to fire the pistol at Nicholas. Nicholas and his female companion managed to escape from the parking lot in their vehicle. On return to the lounge, Tipton commented to Ireland that he could not understand why the gun did not fire and expressed astonishment on discovering the gun was unloaded. Trooper Ireland testified he did not arrest Tipton at that time in order not to expose his identity. Ireland further testified that on March 17, 1968, he was approached by Tipton and advised of a trial to be held at Magistrate's Court over a warrant sworn out by Nicholas charging Tipton with assault with intent to murder, and on a warrant sworn out by Tipton charging Nicholas with assault. Ireland testified that Tipton:

'* * * directed me to state in Court that Nicholas came after hime with a beer bottle, that there was no gun at any time, that DiRossi never had a gun, that Nicholas was the one that came after him with a beer bottle. He also said advised me to testify that he tore my coat and pants pocket on the trousers, and when his sister, Betty Tipton, tried to intervene, that Nicholas struck Betty Tipton. This was the statement that I was, he directed me to make to perjure myself in Court.'

In supporting his plea of double jeopardy as to the assault with intent to murder charge and the deadly weapon charge, Tipton produced a certified copy of a docket entry showing the charge against him before the magistrate was 'Assault to Wit: Feloniously assaulting with Intent to Murder Paul Louis-Nicholas in Violation of Article 27, Sec. 12.' Counsel here and below indicated this statement of the charge is correct. Tipton argues that since he entered a plea of not guilty, appeared before the magistrate, and was found 'not guilty-complaining witness refused to testify' he was therefore in jeopardy despite the fact the magistrate had no jurisdiction to try him on a charge involving a felony. See Md. Code, Art. 52, § 13. Tipton relies on Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 wherein the Supreme Court held a clearly erroneous acquittal by a United States District Judge is regarded as final and may not be reviewed, but this principle has no application where a tribunal initially had no jurisdiction at all to hear the case. Crawford v. State, 174 Md. 175, 197 A. 866.

Tipton further argues that the language 'Assault to Wit: Feloniously assaulting with Intent to Murder Paul Louis Nicholas in Violation of Article 27, Sec. 12' amounts to a charge of assault over which the magistrate did have jurisdiction, Md. Code, Art. 52, § 13, and that under the doctrine of merger he cannot be thereafter tried on the more serious charge. We think this is a strange construction of the language used, and that the charge of assault with intent to murder, a violation of Md. Code, Art. 27, § 12, was clearly made. In a similar factual situation the Court of Appeals of Mayland in Crawford v. State, supra, held that the charge before the magistrate amounted to a charge of assault with intent to murder and an acquittal by a magistrate was a nullity which would not bar a subsequent conviction for murder by a proper tribunal. He so hold. Compare Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 where the original trial court did have jurisdiction.

Tipton contends he cannot be convicted of attempted subornation of perjury on the uncorroborated testimony of a single witness, and since the trial court did so convict him, he was convicted on insufficient evidence. He relies on Brown v. State, 225 Md. 610, 171 A.2d 456 where the Court of Appeals adopted the common law rule requiring two witnesses as to perjury, holding the evidence sufficient since the conviction was based upon the testimony of one witness who was corroborated by circumstances proven by independent testimony, which circumstances were of equal weight to an additional witness. We point out, however, the proof required for a prejury conviction does not necessarily apply to a conviction for attempted subornation of perjury.

Tipton alleges that Commonwealth v. Leitch, 185 Pa.Super. 261, 137 A.2d 909 (1958) supports the application of the rule requiring two witnesses to attempted subornation of perjury. A careful reading of that case indicates the Pennsylvania Court avoided the question because there were ample witnesses to the criminal act no matter what rule it applied. It quoted with approval an earlier decision as follows:

'In Com. (monwealth) v. Billingsley, 160 Pa.Super. 140, 143, 144, 50 A.2d 703, 704, affirmed 357 Pa. 378, 54 A.2d 705, Judge Arnold, now Justice Arnold, said:

"But the crime of perjury has a number of elements: (a) An oath to tell the truth must be taken by the accused, and (b) administered by legal authority, (c) in a judicial proceeding (or statutory affidavit). (d) The accused must have testified in such proceeding, and (e) his testimony must be material to the judicial proceeding. (f) The testimony assigned as perjury must be false, and (g) must be given wilfully, and corruptly, and with knowledge of its falsity (or given recklessly), and for the purpose of having it believed. * * *

"Subornation of perjury consists of all the elements enumerated in the crime of perjury (committed by the witness alleged to be suborned), and one additional element, that the accused induced, persuaded and instigated the suborned witness to commit the crime of perjury. This additional fact (procurement of the witness) does...