Vincent v. State

• Citation: 151 A.2d 898,220 Md. 232
• Decision Date: 09 June 1959
• Docket Number: No. 260,260
• Parties: Louis H. VINCENT v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 232

220 Md. 232

151 A.2d 898

Louis H. VINCENT v. STATE of Maryland.

No. 260.

Court of Appeals of Maryland.

June 9, 1959.

William F. Mosner, Towson, for appellant.

Robert C. Murphy, Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Frank H. Newell, 3rd, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

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

PRESCOTT, Judge.

During the evening of September 22, 1958, at approximately 11:20 p. m., Henry F. Rinn, the attendant of a gasoline service station located at 5608 Southwestern Boulevard in Baltimore County, was held up and robbed by two men. Rinn testified that he was preparing to close the station for the night when he was approached by a man who requested a map. The man took the map and was standing on the edge of the Boulevard near the service station with his companion when Rinn approached them. After a short remark or two, one of the men produced a 'gun' and he then knew what they were there for; so he took out his wallet and handed it to the man who had the 'gun.' The two men then tied his wrists behind him and made him lie down on the lavatory floor. Presuming that they had left, he shortly thereafter made his way to a telephone where he called the police. The police soon arrived and cut the shoe strings with which his wrists had been tied. Rinn said that the appellant was not either of the two men by whom he had been accosted. He identified a co-defendant, a certain Edgar E. Flury, as one of the men who had held him up (the second man apparently was named Trapnell, who was confined at Spring Grove awaiting possible trial). Trapnell was the one who had the 'gun,' and he took the sum of $54 from him. He could not tell the exact type of gun that Trapnell was holding because Trapnell used one of the maps to conceal it partially, and Rinn saw it only from the 'muzzle end,' but he heard it click. He also identified some shoe laces as being similar to those with which he had been tied.

Officer Edwin D. Shinnamon testified that Trapnell, Flury and the appellant had been apprehended in Raleigh, North Carolina, as a result of Flury telephoning and informing the police there of the offenses (they had committed several similar offenses in other states) that the three had committed, when he learned that Trapnell was planning to dispose of him. The police department in Raleigh immediately dispatched detectives to the location where Flury stated the automobile used by the three was. There they picked up the appellant who told them where the gun was located in the automobile. Shinnamon and another officer went to North Carolina for the purpose of bringing all three back. While there, the appellant made two statements to the police, one oral and one written. As they are an important part of the state's evidence, they will be set forth in full--the first is the oral one; the second the written:

'Q. What did Vincent tell you in the North Carolina Police Station? A. Upon talking to Vincent, Vincent told us that his job, they rode by the gas station and looked the area over, and then he set in the car. He had a change of shirts in the automobile, and when the other two would return from the holdup, he would give them a change of shirts. Trapnell would usually drive. His job was to observe all traffic signs, all curves, any highway signs so they would stay within the limits of the law and wouldn't be picked up. He was to have the car ready for the get away.

'Q. And I will ask you did you ask him anything in connection with where he was at the time this offense occurred? A. Yes, sir. We talked to him about that, and he told us he was in an alley located off of a street which we found out to be Tom Day Boulevard. It is a little alley that runs to the rear of Argonne Avenue. He stayed in the automobile there.'

* * *

* * *

'I Lewis Howard Vincent, 840 W. 52nd Street, Chicago, Illinois, a white male, 19 years of age do hereby make the following statement. On September 22 between midnite and one o'clock, Trapnell planned it all. He looked at the gas station three to four time[s]. He pulled into an alley and walked up to the gas station with Flury. I sat in the car at the time. They meaning Trapnell and Flury came back running. I had the shirts ready for them to change. I sat in the car in all the hold up in all three states. What my job was to look out for highway patrolman and city police and have their shirts ready at all times and look at all sign to keep on the right route. $54.00 was what they told me they got. I got a $5.00 cut. Trapnell drove the car away from the hold up, while Flury changed. Trapnell then told Flury to drive while he changed shirts. Trapnell had a 32 Spanish automatic. Des Moines job Flury had a cap pistol he bought in a dime store.' (Italics supplied).

Shinnamon also testified that upon their return to Baltimore County and being shown the prosecuting witness, Trapnell, in the presence of the appellant and Flury stated, '[t]hat is the man we held up.' The defendant was tried, convicted and sentenced upon the charge of robbery with a dangerous or deadly weapon.

I.

Upon this statement of facts, the defendant advances as his first reason why his conviction should be reversed a claim that the state failed to prove beyond a reasonable doubt that the 'gun' used was either a deadly or dangerous weapon within the meaning of the statute. He admits it is unnecessary for the state to prove the gun or weapon used in committing the robbery was loaded, Hayes v. State, 211 Md. 111, 126 A.2d 576, but maintains that in the case at bar, the state failed to establish that the instrument used was dangerous. He argues that the prosecuting witness' statement that the man had a gun--after a showing that the three men had a toy pistol and an automatic--is just as consistent with the conclusion that the two who held up Rinn were using the toy pistol as the automatic; and, if this be so, the defendant must be acquitted. He quotes the following statement from Shelton v. State, 198 Md. 405, 412, 84 A.2d 76, 80: 'Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.' (Italics added.) This sentence was added by Judge Delaplaine to what had been said in the memorandum on reargument in Edwards v. State, 198 Md. 132, 157, 158, 81 A.2d 631, 83 A.2d 578, 26 A.L.R.2d 374, relative to the quantum of proof necessary to sustain a conviction in a criminal case. It applies when guilt is based upon circumstantial evidence alone, as will be seen by a reading of the authorities cited by Judge Delaplaine: Bullock v. Commonwealth, 249 Ky. 1, 60 S.W.2d 108, 94 A.L.R. 407 and 2 Wharton, Criminal Evidence (11th ed.), Sec. 922. See also Hochheimer, Criminal Law, (1st ed.), Sec. 259; 1 Underhill, Criminal Evidence, (5th ed. Herrick), Sec. 17; 23 C.J.S. Criminal Law § 907(c). In every criminal case, evidence, to meet the test of legal sufficiency, must show directly, or support a rational inference of, the facts required to be proved; and the facts must be established, or the inference supported, beyond a reasonable doubt ¹ or to a moral certainty, or a reasonable doubt of an opposite fact must be created. Edwards v. State, supra, 198 Md. at pages 157, 158, 81 A.2d 631. And, when guilt is based solely upon circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. Shelton v. State, supra, 198 Md. at page 412, 84 A.2d 76.

If the law were as contended by the appellant, the statute relating to robbery...