Wiggins v. State

• Decision Date: 03 February 1970
• Docket Number: No. 229,229
• Citation: 261 A.2d 503,8 Md.App. 598
• Parties: Leonard WIGGINS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 598

8 Md.App. 598

261 A.2d 503

Leonard WIGGINS, Jr. v.STATE of Maryland.

No. 229.

Court of Special Appeals of Maryland.

Feb. 3, 1970.

Certiorari Denied May 11, 1970.

[261 A.2d 504] James R. White, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Michael E. Kaminkow, Asst. State's Atty. Baltimore City respectively, on the brief, for appellee.

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

ORTH, Judge.

The question in this case is whether the evidence was sufficient to prove that a homicide committed by Leonard Wiggins, Jr.(appellant) was murder in the first degree as found by the court sitting as a jury in the Criminal Court of Baltimore.Both appellant and the State argue on the predicate that the court found that the murder was committed in the perpetration of a robbery.Appellant claims and the State disputes that an intent to deprive the victim permanenty of his property was not established.

THE EVIDENCE

As to the circumstances surrounding the actual commission of the homicide, the court found that 'the only credible testimony is that given by Mamie Coit,' a witness on behalf of the prosecution.Mamie Coit testified that about 10:00 P.M. on 14 April 1968she was in the vicinity of Fremont Avenue and Pierce Street in Baltimore City.She saw appellant, also known as Dink, whom she identified, a boy known as Willie and a boy known as Sam on the corner of Fremont Avenue and Pierce Street.An old man was coming down the street and appellant kicked him in the seat of his pants.The old man had a 'long knife' which was first down in his belt and 'then he put it in his hand.'The boys were running around him and he was swinging the knife at them.The witness was not able to say whether or not the man was under the influence of alcohol.Someone tripped the man and he fell in the gutter.He lay there a few minutes and the boys took 'everything out of his pockets.'Sam hid the knife under the steps.'He was coming back to get it he said.'Then all the boys went to a bar about a half a block away.Mamie Coit and a friend named Ann Turner remained at the scene telling a boy named Stanley what had happened.She said appellant, Sam, Willie and a boy she knew as Little Joe came back with a fifth of Thunderbird wine.They passed it around and when they got finished, Sam, Willie and Ann left.Appellant asked if he could walk her home.'I said, 'I don't care'.So we, me, Dink (appellant) and Little Joe was going down Pierce Street.'She saw the same old man she had seen earlier standing on the steps of an empty house in the 800 block Pierce Street, knocking on the door.This was about 'a half hour or more' after the incident involving the boys and the man.Appellant said, 'Don't nobody live there.'The old man said, 'I live here.'Appellant said, 'You're a damned liar.'Appellant grabbed the man by the collar and dragged him off the steps.'Then he beat the man with his fists, the old man with his fists * * * in the face.* * * Then he took this drain pipe, and the man was an old man, he was laying on the ground.He took the drain pipe and started hitting the man across the back and head and every place.* * * (The man) was saying, 'All right.Have mercy.'Then Leonard Wiggins said, 'Fuck that Lord have mercy.'Just like that.'During the beating the man was hollering.He did not at any time strike appellant nor did she see a weapon in the possession of the man.After appellant had beat the man with the drain pipe, he held the man by the arms from the back and 'told Little Joe to hit him, to beat him, and Little Joe started to hit (the old man) with his fists and blood started coming out of his mouth.* * * Then Little Joe hold the man while (appellant) beat him (some more).* * * Blood was coming out of his eyes.* * * Then I started screaming and they told me to shut up.'Appellant twisted her arm.'They took the old man's clothes off, they stripped him.Then they took the man's belt and (appellant) beat the man with the belt.* * * He just kept on beating the man and beating the man, and he said, 'I'm going to kill you.'He kept on saying, he was going to kill that old man.'The old man was crying.Mamie Coit went down the street to her home at 813Pierce Street.Appellant and Little Joe caught up to her and followed her into the hall, but she shut the living room door and they left.She saw them going down the street.The old man was still lying in the street naked, not moving.It was about 11:30 P.M.She told the police about the incidents the next morning, apparently when they came to her home.Later that day she pointed out appellant to the police when she saw him standing on the corner.On cross-examination she said she did not see 'what was done with all of (the man's) clothes.'On redirect examination she said that appellant and Little Joe took the man's clothes off, 'Threw them on the ground and grabbed the belt and started beating the man.'When they left they did not take the clothes.She said that on the first encounter with the man appellant and Little Joe went 'in his pockets, and they found two pieces of old rings and skeleton keys.'

About 5:00 A.M. on 15 April 1968 the police found the victim 'lying in the street in front of 841 Pierce Street about a foot and a half from the gutter.The man was not breathing.There was a coat over the upper portion of the body 'like it was thrown over him * * * He didn't have anything else.He was badly battered.'In the back of the house by a vacant lot they found a pair of trousers.

The victim was pronounced dead on arrival at Provident Hospital at 5:30 A.M. on 15 April.An Assistant Medical Examiner who performed the autopsy said that the body was clothed in a gray jacket and two shirts.'That was all.He had no trousers, no underwear.'He described the extensive external and internal trauma of the body in detail.The diagnosis was that the cause of death was 'a craniocerebral injury to the head, which included the subdural hematoma and subarachnoid hemorrhage around the brain.'It was his opinion that the injuries were caused by blows as distinguished from a fall.There was a high alcohol level in both blood and urine; with such an alcohol level the average person 'would find it very difficult to defend himself.'

THE LAW

Md.Code, Art. 27, § 410 provides in relevant part:

'All murder which shall be committed in the perpetration of, or attempt to perpetrate, any * * * robbery * * * shall be murder in the first degree.'

Under this statute it is not required that the killing be wilful, deliberate and premeditated to elevate the homicide to murder in the first degree.SeeLindsay v. State, 8 Md.App. 100, 258 A.2d 760.

Robbery is the larceny ¹ from the person of another by violence.²Osborne v. State, 4 Md.App. 57, 241 A.2d 171.All the elements necessary to constitute larceny are necessary to constitute robbery.Halcomb v. State, 6 Md.App. 32, 37, 250 A.2d 119.One of the elements in larceny is the asportation of the property stolen.It is not necessary that the property shall be carried to any particular distance, or that possession and control shall be retained for any particular length of time in the possession of the thief.

'The slightest asportation is sufficient.The trespasser must acquire complete control over the property, but the slightest entire removal of it from the place it occupies, and a temporary control of it, even for a moment is enough.It has been said that removal to the distance of 'a hair's breath' is sufficient.'Clark & Marshall, Law of Crimes, 6th Ed., § 12.05, p. 738.

So in a robbery if the assailant acquires complete possession and control of the property, even for an instant, the offense is complete, though he immediately afterwards drops or abandons it, or returns it to the person robbed.Id., § 12.12, p. 785;Osborne v. State, 4 Md.App. 57, 60, 241 A.2d 171.

Another element of larceny is the larcenous intent; so every robbery embraces a lacenous intent.This means that every robber must intend to steal the property taken.The crucial ingredient of larcenous intent is that the intent be to deprive the owner (within the applicable definition of that term, seeKyle v. State, 6 Md.App. 159, 250 A.2d 314, Frazier v. State, 5 Md.App. 88, 245 A.2d 614) permanently of his property.Halcomb v. State, supra, 6 Md.App. at 37, 250 A.2d 119 and cases therein cited.

An attempt to commit a crime is an act done in pursuance of a criminal intent falling short of the actual commission of the crime, coupled, at least, with the apparent ability to commit the crime intended.Reed v. State, 7 Md.App. 200, 253 A.2d 774;Makins v. State, 6 Md.App. 466, 252 A.2d 15;Boone v. State, 2 Md.App. 80, 233 A.2d 476.So attempted robbery may be predicated upon a finding of intent to steal goods from the person of another by violence but without the consummation of the larceny. seeThompson v. State, 5 Md.App. 191, 245 A.2d 903.

THE VERDICT

In denying a motion for judgment of acquittal at the close of all the evidence and rendering a verdict of murder in the first degree the court said:

'As the Court must conclude from (the evidence which it found to be credible) that death resulted after a beating, and as the clothing of the deceased was taken from him after the beating, then the Court must conclude from all the circumstances and the testimony, that robbery was contemplated.'

It is perfectly apparent, as the State concedes, that the Court arrived at its verdict under the so-called felony-murder statute.It made no factual findings that the killing was wilful, deliberate and premeditated.SeeMd.Code, Art. 27, § 407.There were two separate and distinct incidents involving appellant and the victim.When appellant first met the victim he assaulted, beat and robbed him.On the second encounter appellant assaulted him and...