Veney v. State

• Decision Date: 22 February 1962
• Docket Number: No. 165,165
• Citation: 227 Md. 608,177 A.2d 883
• Parties: Robert VENEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 608

227 Md. 608

177 A.2d 883

Robert VENEY v. STATE of Maryland.

No. 165.

Court of Appeals of Maryland.

Feb. 22, 1962.

Dallas F. Nicholas, Baltimore, for appellant.

Lawrence F. Rodowsky, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Saul A. Harris and John W. Sause, Jr., State's Atty. and Asst. State's Atty., respectively, of Baltimore City, Baltimore, on the brief), for appellee.

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

PRESCOTT, Judge.

This case involves four appeals in one record from judgments entered after verdicts of guilty by a judge in the Criminal Court of Baltimore, sitting without a jury. The appellant was found guilty of assaulting with intent to murder one Max Schwartz, case No. 1149; assaulting with intent to murder a certain Melvin Gardner, case No. 1151; attempting to rob said Schwartz with a deadly weapon, case No. 1150; and carrying concealed weapon, case No. 1152. ¹ The indictments contained other counts, but none of them, except one, has any bearing upon the outcome of the case.

Appellant enumerates three assignments of error in his brief, but they are, in reality, two; consequently, although all of his contentions will be answered, this will be done under two headings.

I

Under this heading, we have the familiar and oft-repeated claim of insufficiency of the evidence to support the convictions. Apparently in a commendable effort to save costs, the testimony is set foth in narrative form. It leaves no doubt as to its sufficiency to support all of the above convictions.

Schwartz testified that he was the owner and operator of a grocery and liquor store located in Baltimore City. On March 11, 1961, when he and his clerk, Gardner, were alone in the store, a male Negro entered and ordered a quarter of a pound of cheese from the clerk. While the clerk was getting the cheese, the customer moved quickly toward the witness and drew a revolver from under his coat, pointing it at the witness. The witness promptly grabbed the gunman, who struck the witness with the gun, felling him to the floor. Gardner leaped over the counter and grappled with the gunman, who struck Gardner over the head with the gun also, and then ran to the front of the store, where he pointed the gun at the witness and pulled the trigger, but the gun failed to fire. He and Gardner together again went after the gunman, who again struck Gardner with the gun, and then tried to fire the gun, but it misfired a second time. The gunman ran out the front door pursued by Gardner, and just around the corner on Barnes Street the witness saw them on the ground, with Gardner on top. He called the police, who arrived in a few minutes and arrested the gunman. He positively identified the appellant as his assailant; and he required hospitalization as the result of needing some 15 to 18 stitches taken in his head.

Practically all, if not all, of Schwartz's testimony was corroborated by Gardner, who also indentified appellant as the gunman. Gardner also stated that six stitches were required to be taken in his head; and when he and the appellant got around the corner on Barnes Street 'he [appellant] went to click it [gun] like that at me,' but before he could do so Gardner 'went up underneath him and got to fighting.'

Officer Janokowski testified that he and a fellow officer, as the result of a call, went to Schwartz's place of business, where he saw Schwartz with his white coat covered with blood. He approached the scene where Gardner and the appellant were on the ground fighting, and he forcibly took a .38 caliber revolver, containing four cartridges, from the right hand of the appellant.

Appellant, who had a previous record of convictions, including robbery, took the stand and denied having the gun, or having tried to rob Schwartz. He claimed that he was merely walking along the street, when he was attacked, without reason, from behind by Gardner.

Of course, the credibility of the witnesses is for the trier of facts; and, in reviewing the evidence to test its sufficiency, we do not, ordinarily, pass upon its weight, but only determine whether there is evidence and proper inferences from the evidence to support a finding of guilt. The State's evidence as we have summarized it above, if believed by the trial judge, and the proper inferences that may be legitimately drawn from it so clearly permit a finding of all the constituent elements of the above crimes of which the appellant was found guilty, it would be a waste of time to set forth in detail the manner in which they do so. We hold there was no insufficiency in the evidence.

II

The appellant's second contention is that the offense of carrying a concealed weapon was 'merged' into the assaults with intent to murder and the attempted robbery with a dangerous weapon; hence, he was improperly convicted on the concealed weapon charge. The State counters by stating that, 'even if it be assumed the ancient doctrine of merger of offenses has any vitality in Maryland today,' the carrying of a concealed weapon constituted a separate and distinct crime, which did not 'merge' into the other offenses.

When considering the proposition of merger of offenses, it is important to bear in mind the difference between the common-law doctrine of merger of offenses and the more modern concept of merger, which is allied to such closely affiliated titles as 'Identity of Offenses,' 'Divisibility and Merger of Offenses,' and 'Former Jeopardy,' used by some authors, when writing upon the subject.

The same act or continuing transaction frequently gives rise to several offenses, felonies, or misdemeanors, or both. For instance, every robbery embraces a larceny; every murder by violence includes an assault and battery. The principle of merger of offenses and its intertwined principles mentioned above deal with such questions as whether an accused may be convicted of any one, or all, of the offenses, or whether one of them absorbs and merges the others, so that it alone constitutes the only criminal offense; and, if an accused be acquitted or convicted of one or more of the offenses, does such an acquittal or conviction act as a bar to subsequent prosecutions for the other offenses, upon the ground of double jeopardy.

The common-law doctrine of the merger of one offense in another, which was based upon certain historical differences in the incidents of trials of misdemeanors and felonies--such as the right to exercise challenges of jurors, the privilege of counsel, ² and a conviction of felony entailed a forfeiture of property to the Crown--effectuated a merger when the same criminal act or continuing transaction constituted both a felony and a misdemeanor; the misdemeanor was extinguished by the felony and only the latter could be prosecuted. The rule did not apply unless there was identity of time, place and circumstances of the criminal transaction; and the offenses could not both be misdemeanors or both felonies, but had to be of different grades. Gilpin v. State, 142 Md. 464, 121 A. 354; Williams v. State, 205 Md. 470, 109 A.2d 89; 1 Wharton, Criminal Law & Rocedure (Anderson), § 33. As the reasons, or bases, for the common-law doctrine have long since ceased and disappeared, most jurisdictions, apparently applying the principle of cessante ratione cessat lex, have either abolished the common-law doctrine, or abrogated the rules of procedure founded upon it; and this is unquestionably true in Maryland. Code (1957), Article 27, Section 607; Gilpin v. State and Williams...