Wright v. State, 210

• Decision Date: 20 April 1959
• Docket Number: No. 210,210
• Citation: 150 A.2d 733,219 Md. 643
• Parties: David WRIGHT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 643

219 Md. 643

150 A.2d 733

David WRIGHT v. STATE of Maryland.

No. 210.

Court of Appeals of Maryland.

April 20, 1959.

Walter C. Anderson, Salisbury (Webb & Travers, Salisbury, on the brief), for appellant.

Shirley Brannock Jones, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Hamilton P. Fox, Jr., State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

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

HORNEY, Judge.

This is an appeal by David Wright (the defendant) from the judgment entered against him by the Circuit Court for Wicomico County following his conviction by a jury of arson under Code (1957) art. 27, § 7.

The trial court overruled the defendant's motion for a directed verdict at the conclusion of the evidence offered by the State and again at the close of all the evidence. The sole question presented is whether there was sufficient corroboration of the testimony of the two accomplices that the defendant had participated in or was identified with the offense charged.

A skating rink near Salisbury--known as Broyles Skateland--was destroyed by a fire of incendiary origin about one hour after midnight on August 13, 1958. The fire was first noticed between 12:35 and 12:45 a. m., but the two brothers who discovered it delayed calling the fire department until about 12:55 a. m., while they checked the building closer to see what was causing the 'glittering of lights.' So far as the fire marshal could ascertain the fire had not been set before 12:35 a. m. Those who were the first to arrive at the scene noticed through the plate glass window that the fire had started on the inside near a counter in the front of the building. There was evidence that the building had been entered through a side door leading into the storage room. Shortly after the fire alarm had sounded, firemen discovered the opened door in which a glass had been broken. After the debris had cooled sufficiently to permit investigation, it was learned that a cigarette machine had evidently been tampered with before the fire since the door of the machine had been removed and the hinge pin was found nearby.

In the evening of the night of the fire the defendant called at the Curtis home and took the daughters of Lottie Wright and a grandson as well as her son, James Curtis, and two of his friends, Clarence Shofner and Robert Henry, to a drive-in movie near Delmar. They returned between midnight and 12:30 a. m. Lottie Wright had gone to bed, and the daughters and grandson also retired promptly. The defendant and James, Clarence and Robert did not retire but remained either in the living room or the kitchen where the defendant and Robert ate watermelon. Afterwards Robert left to go home and arrived there at 12:45 a. m.

Clarence--a sixteen year old boy--was one of the accomplices and testified that he had known the defendant for about a month. He had been in the habit of riding around with the defendant every night and had gone to the movies with him on the night in question. After Robert had gone home, and he and James had driven to the skating rink with the defendant, the defendant and James removed a 'big' oil can from the trunk and took it with them toward the building. He (Clarence) stayed in the automobile to 'watch out to see if anybody was to come,' and, if they did, he was supposed to blow the horn. When they came back the oil can was put in the back seat and they returned to Salisbury.

James--another sixteen year old boy--was the other accomplice. He had known the defendant for about two months, and had been out late at night with the defendant on other occasions, sometimes as late as 1:00 or 1:30 in the morning. He too had been to the drive-in movie with the defendant. Before they (the defendant, the witness and Clarence) had left the Curtis house they had decided 'to get some money' and drove out to the skating rink. When the automobile was parked, the can of kerosene, which came from the Curtis house, and a tire iron were taken from the trunk and carried inside the building. The tire iron was used to break a glass in order to open the side door. James was told by the defendant to get paper and spread it on the floor near the counter and across the inside of the front of the rink, and pour oil on it. The defendant, before lighting the oil-soaked paper, broke into the cigarette machine by taking 'a piece out of the hinge.' The oil can and tire iron were brought back and placed in the back seat. When they arrived home the can was removed from the automobile and thrown into the backyard.

The defendant--a thirty-six year old man--testified that he had taken Lottie Wright (who was apparently no relation to him) and her two daughters and grandson to the movies, but denied that Clarence, James and Robert had gone with them. When they returned between midnight and 12:30 he ate watermelon alone and then went out to his automobile parked in the driveway and went to sleep. It was not unusual for him to visit at the Curtis home and he often slept in his automobile in the driveway. When asked to explain the story told by Clarence and James he stated they knew he was wanted in Virginia on another charge and decided that they would 'put everything' on him since he 'would be gone and wouldn't be back.' The defendant also admitted that he drove around every evening with Clarence and James until the early hours of the morning.

There was also other non-accomplice testimony to show that an oil can was found in the backyard of the Curtis house, and that a tire iron was found in the back seat of the defendant's automobile.

The State acknowledges that the corroborative evidence in this case is not as strong as might be desired, but insists that it was legally sufficient to warrant submission of the case to the jury. We have said many times, as we said in Judy v. State, 1958, 218 Md. 168, 176, 146 A.2d 29, 33, that '[i]t is not necessary for corroborating testimony to be sufficient in itself to convict' and that 'it need only support some of the material points of the accomplice's testimony.' This is not, of course, the first time we have been required to decide--on a motion for a directed verdict pursuant to Maryland Rule 738--whether the evidence of an accomplice has been sufficiently corroborated to sustain the conviction of the accused, but it is a case in which it appears we should take a closer look at the rule of law which has been recognized and applied in this State for many years and, particularly, what is meant by that part of the rule which states in effect that the corroborative evidence should support the accomplice in at least some of the material points involved tending to show the guilt of the accused.

Many courts have refused to follow the rule requiring corroboration of the testimony of an accomplice. See, for instance, State v. Carey, 1904, 76 Conn. 342, 56 A. 632, for a comprehensive discussion of the reasons why the Supreme Court of Errors decided not to adopt the rule. See also 1 Underhill Criminal Evidence § 182 (5th ed. 1956); 2 Wharton Criminal Evidence § 447 (12th ed. 1955). In other jurisdictions corroboration is required by statute. In Maryland, as in at least one other state, the same result has been reached by the courts. A brief historical background as well as the reasoning behind the development of the rule in this State are set forth in Luery v. State, 1911, 116 Md. 284, 81 A. 681, 685, and need not be repeated here.

The rule as it is applied today is substantially the same as when it was formulated by the decision in the Luery case, supra. Of course, when that case was decided, this Court had neither a duty nor a right to review the legal sufficiency of the evidence in criminal cases, and a trial court could not take a criminal case away from the jury because of insufficient corroboration. Nevertheless, this Court went on to say (116 Md. at pages 293, 294, 81 A. at page 684) that the trial courts could act by 'adopt[ing] the practice of granting prayers advising or cautioning juries against conviction without corroboration' and by not permitting 'a conviction to stand if based exclusively on such testimony' upon a motion for a new trial seasonably made, and added at page 294 of 116 Md., at page 684 of 81 A.: '[Courts should not] require too much in the way of corroboration, * * * it is not required * * * [that there be] sufficient evidence to convict, exclusive of the accomplice's testimony. * * * [T]he important matter is to have [the accomplice] supported in at least some of the material points involved tending to show the guilt of the accused.' (Emphasis added in part).

In all of the cases which followed the Luery case, supra, during the period from 1911 to 1950, the rule was restated and the judgments were either affirmed or the appeals dismissed because the sufficiency of corroboration was reviewable only on a motion for a new trial in the lower court and not on appeal.

Since the effective date of the amendment ¹ to § 5 of Article XV of the Constitution of Maryland and the adoption of Rule 738, supra, this Court has had both a right and a duty--if and when a question is properly raised--to review the legal sufficiency of the evidence in a criminal case. This power to review the sufficiency of corroborative evidence has never been questioned, and has been raised in a number of cases since December 1, 1950, on a motion for a directed verdict. In all of the cases in which the witness was held or assumed to be particeps criminis with the accused, ² the rule was referred to or stated and the judgments, with one exception, ³ were affirmed because the corroborative evidence consisted of the behavior and conduct of the accused, or his presence at the scene of the crime under suspicious circumstances, or the ample and sufficient testimony of non-accomplice witnesses in support of some of the material points of the accomplice's testimony. In the...