Young v. State

• Citation: 151 A.2d 140,220 Md. 95
• Decision Date: 12 May 1959
• Docket Number: No. 230,230
• Parties: Thomas Wardell YOUNG v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 95

220 Md. 95

151 A.2d 140

Thomas Wardell YOUNG v. STATE of Maryland.

No. 230.

Court of Appeals of Maryland.

May 12, 1959.

James T. Clark, Ellicott City, for appellant.

John Martin Jones, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and T. Hunt Mayfield, State's Atty. for Howard County, Ellicott City, on the brief,) for appellee.

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

HORNEY, Judge.

Thomas Wardell Young (the defendant) has appealed from the judgments entered against him in the Circuit Court for Howard County after his conviction on two of the three counts in an indictment involving a breaking into a filling station and stealing simoniz therefrom.

The record shows that at 10 o'clock in the evening on June 20, 1958, the owner of Sauter's Service Station on Route 40 in Howard County padlocked the doors of his filling station and left for the night. When he returned the next morning he found that the padlock on the front door had been forced and that one of the windows in the door had been broken. In the meantime, at approximately 5:15 a. m. on the morning of June 21, two alert county police officers on routine patrol observed an automobile parked on an unpaved road near the station. When they drove into the station to investigate, they noticed the broken window in the door and that the padlock was missing. Investigating further, the officers discovered the defendant crouching under a desk and a codefendant (who did not appeal) standing behind the door with a flashlight. Upon demand, the defendants came out of the station and were arrested without a warrant. When they were searched, two cans of simoniz were found in the pockets of the codefendant. He admitted that he had gotten it from inside the station. Nothing was found on the defendant. After they had been placed in the police car, the defendant told the officers that another person, who had absented himself from the automobile to answer a call of nature, had returned with the simoniz. According to the defendant, he and his codefendant, after upbraiding the alleged thief for what he had done, were in the act of returning the simoniz to the station when they were apprehended. They insisted that they had just entered the station through an open door. Although a search of the area by the county officers, together with two state troopers, was made, the person the defendants had described to the police could not be found.

The defendant was taken to jail and held for nine days. When he was given a preliminary hearing before the trial magistrate on June 30, he was recommitted to jail, in default of bail, for the action of the grand jury.

The state warrant under which the defendant had been held charged the defendant with breaking and entering with intent to steal property over the value of $1 [apparently under Code (1957) Art. 27, § 33], but the grand jury indicted him, not for that offense or for breaking with intent to steal property under the value of $100 [the first offense described in Code (1957) Art. 27, § 342], but with breaking and stealing property under the value of $5 [the second offense described in § 342, supra] and with the larceny and receiving of the same property.

When arraigned, the defendant pleaded not guilty and elected a court trial. During the course of the trial, when it became evident that there had been a misnomer in the given names of the owner of the filling station and the simoniz, the court, without objection--and indeed with the defendant's consent--granted the motion of the State to amend the indictment by interlineation pursuant to the provisions of Code (1957) Art. 27, § 604.

At the close of the evidence, after noting that he could not give any credence to the story about the third person who had absconded nor accept the innocent purpose advanced by the defendants to account for their presence in the filling station, the court entered a verdict of guilty of breaking and stealing and of larceny, and not guilty of receiving. The defendant was sentenced to the House of Correction for 18 months on the first count and the same on the second, but the court provided that the sentence for larceny should be served concurrently with the sentence for breaking and stealing.

In this Court, other than several procedural questions raised for the first time on this appeal, the defendant's only contention is that the evidence was insufficient in law to sustain his conviction on either of the counts.

(i)

The defendant, frankly stating that the procedural questions were not raised below, inquires whether his claims--that his arrest was illegal--that he had been held incommunicado for nine days and not allowed to see his family or an attorney--that he had been denied a speedy preliminary hearing--that he had been denied bail--that he had not been rearraigned after the amendment of the indictment--and that his court-appointed counsel in the trial court was incompetent--are reviewable in this Court. The short answer is that review in this Court is ordinarily limited to questions raised and decided by the lower court. Rule 885. See also Hall v. State, 1957, 213 Md. 369, 131 A.2d 710; Davis v. State, 1947, 189 Md. 269, 55 A.2d 702. But we may add that there is nothing in the record to show merit in any of the contentions. See Griffin v. State, 1952, 200 Md. 569, 92 A.2d 743, certiorari denied 1953, 345 U.S. 907, 73 S.Ct. 647, 97 L.Ed. 1343 [legality of arrest]; Grear v. State, 1950, 194 Md. 335, 71 A.2d 24 [delay in preliminary hearing]; and Basta v. State, 1919, 133 Md. 568, 105 A. 773 [necessity for arraignment]. The record shows commitment in default of bail, not a denial of bail. Finally, the record does not disclose a complaint either as to a holding incommunicado or the incompetence of counsel.

(ii)

The defendant was charged with breaking into the filling station and 'from thence [that place]' stealing two cans of simoniz. The evidence shows that the filling station which had been left padlocked on the night before had been broken into sometime prior to 5:15 a. m. The defendant and his condefendant were caught 'red-handed' on the premises in the possession of the simoniz which the codefendant admitted that he had gotten from inside the station. This direct evidence of possession was, without more, sufficient proof of the stealing. Cf. Debinski v. State, 1950, 194 Md. 355, 71 A.2d 460. The trial court, which had an opportunity to judge the credibility of the witnesses [Glickfield v. State, 1953, 203 Md. 400, 101 A.2d 229] was not obliged...