29 Md. App. 23 | Md. Ct. Spec. App. | 1975
delivered the opinion of the Court.
This is one of what will be, in all likelihood, a number of endeavors by those accused of criminal offenses to apply what they construe to be the teachings of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), to a broad range of the substantive and procedural rules of the criminal law.
Robert Horn, also known as Zachary Gladden and Maurice Johnson, asks on direct appeal that we reverse the judgment entered against him at a bench trial in the Criminal Court of Baltimore, wherein he was convicted of storehouse breaking with intent to commit grand larceny and sentenced to 4 years.
It is clear that Horn’s criminal agency was shown by applying the rule that in the absence of a satisfactory explanation, the exclusive possession of recently stolen
We carefully analyzed Mullaney in Evans v. State, 28 Md. App. 640 (1975). We observed that the rule regarding possession of recently stolen goods does not create a “presumption” but merely permits an inference of fact. We concluded in Evans, at 703-704: “Since an inference does not shift a burden either of persuasion or of going forward with evidence, it does not come under the scrutiny of Mullaney v. Wilbur in that regard. Since an illogical or improbable ‘inference’ would, however, unfairly relieve the State of part of its burden of proving every element of a case beyond a reasonable doubt, the inference, even as a mere inference, must pass constitutional muster under United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U. S. 136, 86 S. Ct. 279, 15 L.Ed.2d 210 (1965), and Leary v. United States, 395 U. S. 6, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969). It must, therefore, be based upon a rational connection between the facts established and the fact to be inferred. Conversely, it ‘must be regarded as “irrational” or “arbitrary,” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact [the inferred
Judgment affirmed.
. The storehouse breaking was charged by the first count of indictment 17500449. That indictment and indictment 17500451 were jointly tried. He was convicted also of the offense of petit larceny charged by the first count of the latter indictment and given a concurrent sentence of 18 months. He does not challenge that judgment. Upon the convictions, other outstanding indictments, 17500450, 17500452, 17500453 and 17500454, were disposed of by the entry of a nolle prosequi in open court.
. Horn cites: Tot v. United States, 319 U. S. 463 (1943); United States v. Gainey, 380 U. S. 63 (1965); United States v. Romano, 382 U. S. 136 (1965); Leary v. United States, 395 U. S. 6 (1969); Barnes v. United States, 412 U. S. 837(1973).