6 Md. App. 639 | Md. Ct. Spec. App. | 1969
The appellants, Darryl Matthews and Adrian Love, were convicted of robbery in the Criminal Court of Baltimore by Judge Joseph L. Carter, sitting without a jury. Each was sentenced to five years under the jurisdiction of the Department of Correction.
Upon this appeal both appellants contend that there was a fatal variance between the allegata and the probata, and that there was insufficient evidence to convict. Appellant Matthews also contends that the trial court erred in conducting a joint trial of appellants, while appellant Love also contends that his sentence constituted cruel and unusual punishment.
At trial, the victim, Riley Dexter Hash, testified to the following facts:
He, Plash, had been drinking but was not intoxicated on the evening of May 1, 1968. At 11:30 p.m. on that evening, while on his way to a bus stop, he approached the corner of Pratt Street and Market Place, in Baltimore. At this time he had two to three dollars in change in his right front pants pocket, a pair of fingernail clippers and perhaps some change in his left front pocket, and a billfold containing paper currency in one of his rear pants pockets. Mr. Plash observed three young men standing on the street corner. PTe did not observe any girls in the immediate vicinity. One of the trio, identified by Mr. Hash at trial as appellant Matthews, approached him and asked him for a cigarette. Mr. Hash handed Matthews a pack of cigarettes. Matthews took the cigarettes and said, “I will keep this. Now give us the rest of your money.” The three young men then seized him; appellant Matthews put his hand in Mr. Hash’s right front pocket and removed some or all of the change; and another of the trio, identified by Mr. Hash at trial as appellant Love, put his hand in Mr.' Hash’s left front pocket. While it
The appellants each testified, admitting .to being in each other’s company on the night in question in the immediate vicinity of the robbery but denying any involvement in the robbery. Appellant Matthews also stated that he had asked Mr. Hash for a cigarette and that he took only one cigarette.
The indictment under which the appellants were convicted charged that they and a third co-defendant, whose appeal is not before us, “feloniously did rob Riley Dexter Hash, and violently did steal from him thirty-five dollars current money; one men’s wallet, containing personal papers, of the value of two dollars current money; contrary to the form of the Act of Assembly in such cases made and provided,” etc. Appellants protest that there was a fatal variance between the allegata and the probata in that it was alleged that they stole thirty-five dollars and a wallet while the proof was that the most they could have stolen was two or three dollars in change. We hold that this was not a material variance. ■
The general rule dealing with variance is that matters essential to the charge must be proved as alleged in- the' indictment. 41 Am. Jur. 2d Indictments and Informations §§ 260, 261; 42 CJS Indictments and Informations § 254; -Hochheimer, Crimes and Criminal Procedure § 159 (2d ed. 1904). In Maryland, as elsewhere, the amount of money taken- from a victim in a robbery is not an essential element of the offense so long as something of value is taken. Fisher v. Warden, 224 Md. 669, 670 (1961). In a robbery prosecution it is thus sufficient to prove the taking of a greater or smaller sum of money than that alleged. See, e.g., Commonwealth v. Sliva, 165 A. 2d 689, 691 (Pa. Super. 1960); Wilson v. State, 105 So. 2d 66, 70 (Ala.
The indictment alleges, however, that appellants robbed Mr. Hash of $35 and a wallet. The conjunction of the money and the wallet in the indictment does not change the result in this case. Where an indictment for robbery alleges the taking of several articles, it is sufficient to prove the taking of any one of them. 77 CJS Robbery § 44 (b) (1) ; Mize v. State, 400 S.W.2d 761, 763 (Tex. Cr. App. 1966) ; Sterling v. People, 376 P. 2d 676, 677-78 (Colo. 1962) ; People v. Brown, 222 N.E.2d 227, 230-31 (Ill. App. 1966).
The appellants also contend generally that the evidence was insufficient to sustain the conviction. The Corpus delicti was established by Mr. Hash’s testimony, and at trial he identified the appellants as the robbers. We have previously held that a victim’s positive identification alone of the defendants, if believed, is sufficient to support a conviction. Gunther v. State, 4 Md. App. 181, 185 (1968). That Mr. Hash had been drinking prior to 'the robbery and that he may have been intoxicated at the time of the commission of the crime go only to the weight of his testimony. Bryant v. State, 4 Md. App. 572, 578 (1968). In a non-jury trial the weight of the evidence and the credibility of the witnesses rests within the determination of the trial court. Brown v. State, 4 Md. App. 261, 268 (1968). The trial court in performing its duty of judging the credibility of the witnesses may disbelieve the exculpatory statements made by the defendants. Brown v. State, supra at 269. From the record before us, we are unable to say that the trial court was clearly erroneous in believing Mr. Hash’s testimony, disbelieving that of the appellants, and finding them guilty of robbery. Maryland Rule 1086.
The two appellants and the third co-defendant were tried jointly. Although no request for a severance was made before
Appellant Matthews additionally contends that his sentence of five years constitutes cruel and unusual punishment. It is well settled that imposition of sentence in a criminal case is a matter within the province of the trial judge; and it will ordinarily not be reviewed on appeal when it is within the limits prescribed by law. Turner v. State, 5 Md. App. 332, 333 (1968). The sentence of five years is within the statutory limits, see Md. Code, Art. 27, § 486, and will not be reviewed.
Judgments affirmed.
. The girls were never apprehended. '
