Fabian v. StateFabian v. State
delivered the opinion of the Court.
After a non-jury trial in the Criminal Court of Baltimore, the appellant, William W. Fabian, was found guilty under the second, fourth and sixth counts of indictment No. 1035, charging, respectively, breaking a warehouse with intent to steal goods valued at less than $100.00; larceny of goods valued at less than $100.00; and breaking and stealing goods valued at more than $5.00. (Code (1957 and 1963 Cum. Supp.), Art. 27, secs. 342, 341 and 33.) He was also found guilty under indictment No. 653, which charged assault and battery upon an infant child. He was sentenced to ten years’ imprisonment on count six of indictment No. 1035, no sentences being imposed under counts two and four. A concurrent sentence of one year was imposed under the assault indictment, No. 653. Fabian appealed from both judgments.
Due to the nature of the appellant’s contentions, it is necessary to set out the testimony of several witnesses at some length. With respect to indictment No. 1035, Diane Green-street, an 18 year old unwed mother, who lived with Fabian, testified that on the evening of January 17, 1963, while she and Fabian were in the apartment of William Phillips, Fabian instructed her to go with him to meet his sister. She said that she and Fabian, accompanied by Philip Windsor, set out to go to the place of employment of the appellant’s sister, the Aus
The Austin Biscuit Company was said to be about two blocks from the plant of the General Crafts Corporation. While she and Fabian were waiting, Miss Greenstreet testified, Windsor kept running back and forth from the office of the General Crafts Corporation, “four times altogether”, to report to Fabian on the progress of the entry and search of the office. According to the witness, on one occasion Windsor told the appellant “one of the boys couldn’t get in and he pushed him in the window”, and on another occasion Windsor reported that “they couldn’t find nothing”. She said that after the search of the office was completed, Windsor returned to where the appellant was seated with Miss Greenstreet, and was told by the appellant to go to the apartment of one of the parties. Then, at 12:30 A.M., she said, the appellant’s sister came out and the appellant had a conversation with her. Thereupon, Miss Greenstreet testified, the appellant, Windsor (who had not left), and she, then walked to the apartment mentioned — apparently Glackin’s. When the appellant examined what had been stolen, and found that only office papers had been taken, he stated, according to Miss Greenstreet, that “they were garbage and no good to him”. Subsequently, the appellant and Miss Green-street returned to the apartment which they shared.
Norman Barrick testified that while he was at Glackin’s apartment, a person named Fabian came in with Philip Windsor and Diane Greenstreet. He said this was the only time he had ever met Fabian or Miss Greenstreet, and when asked
The appellant’s sister, Shirley Fabian, testified that when she got off from work on January 18, 1963, at 12:30 A.M., she was met by the appellant, Diane Greenstreet and Philip Windsor. She further stated that after the appellant had asked her for a loan of five dollars, she and the others, walked for a few blocks, and then the appellant, Miss Greenstreet and Windsor left her. She then walked to her home nearby.
Charles Bianconi, who lived in the same apartment with the appellant and Miss Greenstreet, testified that he had stayed with Miss Greenstreet’s child on the night of January 17, 1963, while she went out with the appellant. He testified that when the appellant and Miss Greenstreet returned early the next day, the appellant “told me about hitting this place called ‘Wally’s’ ”, because “he thought there might be some checks in there”.
The plant manager of the General Crafts Corporation testified that on the night of January 17, 1963, a door in the rear of the plant was jimmied open and some office records and a micrometer were stolen. While he said the records were of great value to the corporation, he placed a monetary value of five dollars on each of three missing ledgers, and estimated the value of the micrometer to be from fifteen to twenty dollars. The total value of the stolen items was given in the indictment as $18.00.
The facts underlying the assault and battery conviction under indictment No. 653 were not complicated and may be summarized briefly. The incident apparently took place early on
Acting on information supplied to them by Bianconi, Baltimore City police officers arrested the appellant on February 8, 1963, without a warrant, “for investigation of forged checks”. He was held until February 11, 1963, when he was given a preliminary hearing in the Municipal Court of Baltimore City on a charge of assault and battery which had been placed against him by Miss Greenstreet on behalf of her infant son. At the hearing the appellant, who was not represented by counsel, pleaded not guilty. The Municipal Court judge did not proceed with the case against the appellant, but ordered that he be held for action by the Grand Jury. Code (1963 Cum. Supp.), Art. 26, sec. 109(c) (4). On March 4, 1963, the Grand Jury returned an indictment (No. 653) charging the appellant with assault and battery upon Miss Greenstreet’s son. Subsequently, on March 26, 1963, the other indictment under which the appellant was convicted, No. 1035, was returned by the Grand Jury.
Preliminarily, the appellant claims that the second, fourth and sixth counts of indictment No. 1035 are inconsistent and that he could not lawfully be convicted under all three. As noted previously, the trial court sentenced him under count six, but imposed no sentence under counts two^ and four. Thus, the failure to sentence under the second and fourth counts was tantamount to a suspension of sentence on those counts, and in such a case the appellant had the right to appeal from the convictions under counts two and four, as well as from the conviction and sentence under count six. Code (1963 Cum. Supp.), Art. 5, sec. 13;
Pearlman v. State,
We held, in
Young v. State,
Counsel for the appellant raises three principal questions. The first contention is that the evidence was insufficient to support a verdict of guilty under the second and sixth counts of indictment No. 1035 because Miss Greenstreet and Barrick were accomplices and there was no independent evidence to corroborate their testimony, and that therefore the conviction cannot stand. The trial court felt that while Miss Greenstreet (who was charged in some other cases involving the appellant) was an accomplice, sufficient corroboration of her testimony was provided by the testimony of Barrick “who is not a party in any of these offenses, but is a strictly independent nonaccomplice witness”. We think the court’s conclusion was correct.
In
Lucchesi, etc. v. State,
We find no evidence whatsoever in this record that Barrick participated in, aided, abetted or counseled the breaking, entering or theft for which the appellant was convicted under indictment No. 1035. The fact that he was present when the plot was hatched was not sufficient to make him an accomplice, under the authorities. His statements that he had never met Fabian before, that he took no part in the conversation, that he did not agree to participate in the crime, and that he separated from the others almost immediately after leaving the apartment, and went home, were not contradicted in any particular. Thus he was not an accomplice and his testimony afforded sufficient corroboration for that of Miss Greenstreet.
However, even if it were assumed that Barrick was an accomplice himself, there was, in view of the rule that not much in the way of corroboration is required, sufficient corrobative evidence to “support the testimony of the accomplice [Miss Greenstreet] as to some of the material facts tending to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself.”
Wright v. State,
The appellant’s counsel has referred to several minor conflicts between the testimony of Miss Greenstreet and that of Bar-rick, and also has attempted to discredit Barrick’s testimony by claiming that Barrick could not identify the appellant at the trial. We find the conflicts trivial, and, in any event, they would only go to the credibility of the witnesses, a matter for the trier of fact to determine. The claim of failure to identify the appellant was based on Barrick’s reply, “I couldn’t swear to it”, when he was asked whether Fabian was in the courtroom. The witness was not requested to clarify his answer; the matter was not pursued further. At best, the answer was ambiguous: the witness could have meant that he was unable to identify the defendant, or, on the other hand, that he simply was not certain whether Fabian was in the courtroom at the moment (the witness not knowing that the trial could not have proceeded without the continuous presence of the defendant). Throughout his other testimony, however, Barrick made it clear that he was referring to the man, whom everyone called Fabian, who had come to Glackin’s apartment and proposed the crime, and who was identified by other witnesses as the defendant in the case being tried. Suffice it to say that the trial judge was entitled to
It is argued that even if there was sufficient corroboration, there was no evidence to convict under count six of indictment No. 1035, breaking
and
stealing (or under count four, larceny), because the appellant “never urged the taking of the goods actually stolen, had no use for them, and never had them in his possession.” While the appellant did not instigate the theft of what in fact turned out to be stolen, we believe that he is criminally responsible for both the breaking and stealing, since the taking of the office records was a natural and probable consequence of the criminal activity that he counseled and procured. “One who incites the commission of a crime is * * * guilty of all incidental consequences which might reasonably be expected to result from the intended wrong * * *”, Perkins,
Criminal Law
(1957 ed.), p. 576; see authorities cited in fn. 85. An accessory before the fact or instigator is “responsible for all crimes incidental to the criminal misconduct he counsels, or which are among its probable consequences * * *”, 1
Wharton's Criminal Law,
(12th ed.), sec. 268. See also 22 C.J.S.,
Criminal Law,
sec. 92, and cases there cited. These principles apply to the instant case in which the appellant was properly tried as a principal because of the rule that accessories to misdemeanors are chargeable as principals. The crimes charged in the three counts of indictment No. 1035 under which the appellant was convicted are misdemeanors. Code (1957 and 1963 Cum. Supp.), Art. 27, secs. 342, 341 and 33,
supra; Debinski v. State,
The second contention raised by counsel for the appellant was that the lower court erred in convicting the appellant of
The argument that the appellant stood in
loco parentis
to the child and that therefore the assault was not culpable, even if available under the facts of this case, overlooks the fact that the punishment which a person standing in
loco parentis
may in
The last contention raised by appellant’s counsel was that, in view of
White v. Maryland,
The appellant filed in proper person a “supplement” to the brief of his counsel raising six additional questions, some being mere repetitions of issues presented by his counsel. The sup
Judgment under the fourth count of indictment No. 1035 reversed; judgments under the second and sixth counts of indictment No. 1035, and under indictment No. 653, affirmed.