Woodell v. State

• Citation: 234 A.2d 890,2 Md.App. 433
• Decision Date: 16 November 1967
• Docket Number: No. 322,322
• Parties: James Clyde WOODELL and James Rodney Mercer v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 433

2 Md.App. 433

234 A.2d 890

James Clyde WOODELL and James Rodney Mercer v. STATE of Maryland.

No. 322.

Court of Special Appeals of Maryland.

Nov. 16, 1967.

Michael J. Cuff, Hyattsville, for appellants.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., and Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., for Prince George's County, Upper Marlboro, on the brief, for appellee.

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

MURPHY, Chief Judge.

The appellants were each found guilty of attempted storehouse breaking and being a rogue and vagabond by a jury on December 13, 1966 in the Circuit Court for Prince George's County. They were sentenced by Judge Samuel W. H. Meloy to terms of three years and one year imprisonment on the respective charges, to run concurrently, in the Maryland Penitentiary. The questions presented on this appeal pertain principally to the admissibility into evidence of certain objects found near the scene of appellants' arrest and the propriety of questions propounded by the State's Attorney on cross-examination of the appellant Mercer relating to his prior criminal record.

The evidence adduced at the trial showed that on the morning of October 17, 1966, at approximately 1:30 a. m., two men, later identified as the appellants, were observed near the door to the rental office of the Lakeside North Apartments in Greenbelt, Maryland by Mr. and Mrs. Milo Pallaggo, the tenants in the apartment immediately above the rental office. Mr. Pallaggo testified that he was attracted by 'a thumping noise' beneath his bedroom window; that he observed two men standing about six feet from the door, one of whom he heard say to the other, 'Jimmy the s. o. b.'; that he then called the police, after which he observed the two men walk away; that the police arrived shortly thereafter, and he pointed out appellants as the two men he had seen at the rental office door; and that appellants were only about fifty to seventy-five yards from the rental office when apprehended by the police. Mrs. Pallaggo testified that appellant Mercer walked away from the door after he had observed her looking at him through the window.

Immediately after the appellants were taken into custody by police, fresh jimmy marks were found on the door of the rental office, and the doorjamb had been pried away for an area of about four inches. A search of the wooded area near where the appellants were apprehended was immediately undertaken and a flashlight, a pair of gloves and a crowbar were found lying in the grass. These articles when found were dry, while the grass surrounding them was wet. At the trial, the articles wer admitted into evidence over appellant's objection that they were inadmissible since there was no evidence connecting them with the articles, and because, when arrested, the articles were not 'found upon' them, as required for a conviction on the rogue and vagabond charge.

It is well settled that evidence need not be positively connected with the accused or the crime committed in order to render it admissible; it is admissible where there is a probability of its connection with the accused or the crime, the lack of positive identification affecting the weight of the evidence, rather than its admissibility. Daniels v. State, 213 Md. 90, 131 A.2d 267; St. Clair v. State, 1 Md.App. 605, 232 A.2d 565; Stewart v. State, 1 Md.App. 309, 229 A.2d 727. It is equally well settled that where a person is charged, as were appellants, under that part of the rogue and vagabond statute (Maryland Code, Article 27, Section 490), proscribing 'having upon' him, inter alia, implements at places, and under circumstances, from which an intent may be presumed feloniously to break and enter into a storehouse, it is not necessary to prove actual physical possession at the time of the arrest, an inference drawn from proper evidence sufficing to establish the requisite elements of the offense. Shipley v. State, 243 Md. 262, 220 A.2d 585; Wright v. State, 222 Md. 242, 159 A.2d 636; Thomas v. State, 1 Md.App. 528, 231 A.2d 915. That there was a probability of a connection of the gloves, flashlight, and crowbar with the appellants is, we think, so abundantly clear from the evidence as to require no extended discussion. We hold, therefore, that these items were sufficiently connected with appellant's activities as to warrant their admission into evidence on both the storehouse breaking and rogue and vagabond charges.

Appellants next contend that the rogue and vagabond statute is unconstitutional, since it 'makes criminal the mere possession of certain implements at places and under circumstances from which felonious intent is presumed.' While on its face the contention appears frivolous, we do not decide it, since a question as to the constitutionality of a statute will not be considered on appeal where, as here, the question was not raised in the lower court. Maryland Rule 1085. See also Gonzales v. Ghinger, 218 Md. 132, 145 A.2d 769. We nevertheless point out that all presumptions favor the constitutionality of a duly enacted statute and it will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions. Baltimore Transit Company v. Metropolitan Transit Authority, 232 Md. 509, 194 A.2d 643.

It is also contended that the State's Attorney's cross-examination of the appellant Mercer with respect to his prior criminal record was prejudicial, not only as to him, but also, by reason of association, to Woodell, his co-defendant and co-appellant. The record indicates that the State's Attorney, after asking Mercer about two prior criminal convictions, which he admitted, proceeded to question him concerning convictions of assault by threat, public drunkenness, worthless check, and exceeding the speed limit in a motor vehicle, all of which allegedly occurred in Raleigh, North Carolina. Mercer stated that he did not remember the assault and drunkenness convictions, that he had not been convicted of worthless check or of speeding, and that he had never been in Raleigh, North Carolina. Apparently stunned by this denial, the State's Attorney alluded to Mercer's F.B.I. record, and asked Mercer whether he thought anyone else had his fingerprints, the clear implication intended to be conveyed to the jury being that the State's Attorney had access to Mercer's F.B.I. record which indicated that he had indeed been convicted of these offenses. The State's Attorney did not otherwise...