*1 not the accident did indicate where the vehicles were im- Here, before the accident. the absence of mediately brake skid marks was fact witness unable plus expert facts, to fix from the impact why physical in the my opinion judgment Whitneys against case the Antonellis be a new should reversed without trial.
But because the chose to disbelieve the jury right that she was on her side Antonelli-daughter driving road, there was no other that Whitney much negligence the same reasons guilty (for negligence there was no evidence of on the of the An- part against the case of the the An- tonelli-daughter Whitneys it would seem be futile to reverse the tonellis), judgment Antonellis remand against Whitneys in the case of the trial: therefore belief that the judg- for a new my case in this case should be affirmed. ment
McDOWELL STATE 199, September Term, [No. 1962.] *2 Decided April before argued cause was Brune, J., C. Prescott, Marbury Sybert,
Horney, JJ. Devin, for appellant.
Albert A. Cohen, Special Attorney, Herbert whom were L. Finan, General, O’Donnell Thomas B. William J. Attorney Adler, and Abraham Assistant At Attorney State’s State’s brief, for torney, Baltimore respectively, City, ap pellee. J., opinion C. delivered the of the Court.
Brune, McDowell, was convicted of arson in appellant, court, Court of Criminal Baltimore trial before the sitting first, He jury. appeals without and contends the evi- conviction, dence as a whole was insufficient to support second, if that even the evidence were otherwise suffi- cient, the conviction cannot stand it is because based upon of an which is not cor- sufficiently *3 roborated. 1962,
A fire occurred about 3, P.M. on 6:30 January Baltimore, a floor Street, second apartment 800 Reservoir Aldrich, which been had rented to and was him occupied by McDowell, and the latter being a subtenant. Aldrich was in landlord; his arrears on rent due the McDowell was substan- date on his rent tially to due to On up Aldrich. or about Janu- 1962, 1, out, told ary the landlord Aldrich get to or pay up and Aldrich to move out was of the apartment by January McDowell, too, result, As leave, 3rd. a was to preparing and least to move at to planned temporarily the home his sister who lived one he that nearby. (At said he towas have the apartment Reservoir after Aldrich left. Street heWhy at all in those should leave circumstances is not explained.) question, all, no serious if There is any at as to proof occur, the The fire corpus delicti. did and there was expert a the Fire by Captain Investigation Bureau that due it was not to spontaneous combustion or faulty wiring indeed, had, There to “natural causes.” been number of sepa- The inference is rate clear that fires. had they been wilfully set. and Wharton’s Criminal maliciously See Evidence (12th Ed., Anderson, 17, 48, as 1955), p. proof of the corpus § 27, 6; delicti Code generally, (1957), and Wimpling Art. § 362, 248, State, v. 171 Md. 189 A. as to the wilful and mali- Bollinger cious burning dwelling. Cf. 208 Md. 913, 117 A. involving 2d the of a burning barn and aris- Art. As under 7 of 27. Wharton ing out points “[pjroof § with the defendant’s connection crime as the operative conviction, for although essential not agent, part corpus delicti.” of the insufficiency first alleged The appellant’s contention— connection of his goes evidence as a proof whole— witness operative agent. principal
the crime as an Since of the Aldrich, questions was the accomplice, State of the cor- sufficiency of the of the evidence and sufficiency related. are roboration of closely at about to the apartment that Aldrich had returned showed 3rd, that he found that six o’clock in afternoon January he broke been door apartment padlocked, articles miss- some article or door entered and found open, apartment. afterwards that he left ing, shortly and Just clear, but it clear he it alone is not was long how out of him. As Aldrich came not there with McDowell was come, in just or had coming, apartment, McDowell top steps stairway, apparently was on the and floor, and was a sandwich. eating the second leading Aldrich which told McDowell had some conversation two the door breaking of the padlocking Aldrich, he where inquired According open. down,” said, burn place should gas could some “we get Aldrich him to himself.” said “go help Aldrich told to a public down the stairs went telephone he then went *4 landlord, a to and that a few block call away about booth from the came running apartment later McDowell minutes said “I it got going.” and had been called to open who drain stopped plumber
A apartments in one of the at or very arrived soon from a sink that came out of front the time Aldrich apartment after in whether the trouble was that Al- inquired apartment. and suggested not plumber said that was that the try drich he which did. He said that he saw Mc- rear apartment, sandwich, the head stairs eating he Dowell downstairs, Mc- he saw that at that time go Aldrich saw the stairs at a at the Dowell still his sandwich eating top front feet from door to the apart- or fifteen twelve point the stairs went down ment. minutes later the plumber Some he and out some tools. As he went outside get to his truck apartment saw flames from the floor front coming second in a very fire arrived engines the fire department. called minutes. few to- were they
Both Aldrich and McDowell testified differed their accounts leaving but gether apartment, said that Aldrich some The chief difference was respects. apart- left the they that he went out first and McDowell said that of the plumber ment On this together. rather supports Aldrich than McDowell. he to when
Aldrich two different statements as gave quite His to Connecticut. returned to the from a apartment trip had 3rd, on early January first statement was that he had returned ex- He his second that he had returned on December 30th. due to his hav- as caused confusion difference plained He 3rd, his arrest. on the date of mind fixed ing January he to return arrested at a was about railroad station in a suitcase had left most of his clothes to Connecticut. He there several days. a locker gave conflicting returning accounts about McDowell about seeing afternoon of 3rd and January in the hearing Municipal there. At his preliminary Aldrich the time been in the at about having building he denied Court time after denied seen Aldrich having any of the fire and at the 3rd. His trial was morning January was not explained. to each. difference contrary enter the apartment seeing one testified No evening 3rd. Aldrich early January the late afternoon in the apartment, not seen McDowell Mc- he had said that it, had entered plumber denied that he Dowell clothing it. McDowell testified some him enter not seen floor when landing him was on second belonging this having gotten his sandwich. He denied eating he was he testified that he was from the apartment, though clothing *5 there to going get clothes. them put landing, Who on the there, when were they put and what became them are not shown. Aldrich denied seen them. having on charge was tried as well as ar- of burglary At the case, son. conclusion of granted the court State’s a defense motion for a directed verdict charge burglary and denied a similar motion on the charge. arson Mc- When behalf, Dowell took the stand in his own he admitted gen- on direct erally examination and more in on cross-ex- detail amination that he had been convicted of One several offenses. of them was burglary.
The trial judge who heard case had Al- McDowell’s tried shortly drich before and had found him apparently guilty arson under those Code, provisions 6 of Art. 27 § cited, above anyone aids, which make who counsels pro- cures the of a burning dwelling arson as guilty of a principal. Aldrich was also convicted of of the same burglary prem- ises. assume this out (We grew of his in when he breaking found the apartment but padlocked, this is not clear from the this appendix The trial com- judge case.) at the end of mented McDowell’s trial he had to deter- mine he Aldrich, whether should believe McDowell or he stated that he expressly believed Aldrich. He also recog- nized that he had to have Aldrich’s something beyond state- ment to guilt warrant finding against McDowell. to one side for the
Leaving moment the question cor- roboration, we think that the evidence and the inferences which be drawn might properly therefrom were sufficient to enable the trial judge find McDowell guilty beyond a reasonable doubt of the crime arson. Arson be a likely to clandestine offense and of it must often proof be by circumstantial evi- dence and inferences which be there- may reasonably drawn Bollinger from. supra, See 208 Md. at Here we have McDowell within twelve or fifteen feet of the door to broken, apartment, lock on which had been so that there was no obstacle to his entry. We also have his state- ments to Aldrich indicating both a motive for committing offense and an intention to commit it. There is showing no *6 Aldrich to the time when prior had been started that the fire minutes left, little to twenty thirty but it was a burning later — This was later, of the trial findings judge. to the according enter the apart- to McDowell had the opportunity indicates ment and The plumber’s testimony set afire. there alone
Aldrich had left and that still McDowell was of feet proof few from unfastened door. moment that corpus delicti for the ample. Assuming de- there of the testimony was sufficient corroboration who judge fendant’s we that the trial accomplice, cannot say finding in saw and heard the witnesses in error was clearly on the him and reasonable evidence before guilty be inferences would therefrom. on our finding part Such us in on the necessary warrant conviction reversing Rule 886 ground Maryland evidence. insufficiency a; State, State, 256, 619; Espin Foster v. 230 Md. 186 A. v. 2d 298, 589; cases). 230 2d Md. 186 A. cite two of (to many only credibility witnesses determina- primarily 513, State, tion of the trier of McKenzie facts. v. 230 Md. 514, A. 187 2d
We now reach the testimony contention that the appellant’s of the Aldrich was not accomplice corroborated sufficiently without the evidence was insufficient testimony to sustain the State, 284, conviction. In Luery v. 116 Md. 81 681, A. this Court the rule that the adopted uncorroborated of an testimony is not accomplice sufficient to sustain a con- viction. The rule has been so restated this frequently Court since the decision that we think the citation cases is un- necessary. recurred,
Luery posed question, which has frequently required how much of corroboration of way an It was accomplice. there said Md. (116 at that not much” 294) “too should be required, the cor- roboration need not be enough convict exclusive accomplice’s testimony, and that “the matter is to important him have in at least accomplice] supported some [the involved, material points tending show of the ac- guilt cused.” A similar statement generally based will be Luery
212
State,
489,
504,
found
143 Md.
at
v.
In Wright 643, 219 Md. A. 2d cert. den. *7 361 the U. of the rule in this his- origin S. and its State reviewed, since tory Luery were and the court un- carefully dertook to “discuss more what is meant the fully by phrase corroboration of requiring ‘some of the material in- points ” volved.’ After referring two and to textwriters leading case, the the Polansky opinion stated (219 650) Md. “the corroborative must of evidence the support testimony the as to some of the accomplice material facts to show tending that the accused was either identified the with of perpetrators the crime or the participated commission of the crime itself.” The then opinion out that pointed whether the test is * * * circumstances, met “must the facts depend upon therefrom, and the inferences deducible in each case.” the Wright case, The case like instant a convic- involved tion for based the upon arson of accomplices. The testimony enumerates various items of opinion corroborative testimony. the A number them accomplices’ mat- concerned ters not themselves unlawful and some were as described the fact that the defendant corroborating “only had engaged movies, in several lawful as pastimes going eat- —such watermelon and the ing roaming highways and late at byways night,” these were held yet (citing Polansky supra) to afford corroboration as “that the showing defendant was identified the admitted with arsonists.” Here the evidence of his McDowell’s to leave the presence, having apartment, and of his the last being shown have been the person immediate of the scene of the crime vicinity with both the op- motive to and a commit the offense serves possible portunity as of the identification of the defendant with corroboration crime, of the which is the branch the commission other There also evidence Polansky rule. corroborative of Mc- just Dowell’s association with Aldrich the before fire and al- most it. Aldrich’s connection with of- immediately after the is, course, is shown fense his conviction the by founda- tion the attack on his as an that of testimony accomplice. Wright stressed the case also fact that testimony of witnesses with that of non-accomplice was consistent accomplices and inconsistent with that the defendant. The is true here of same that Aldrich plumber and that left first few feet remained from only noted as in Wright Another apartment. important Md., at was that the made (219 651-52) case false defendant statements with respect association the accomplices minutes before fire few was set. A false state- similar here, exists is added ment which a false statement (sub- contradicted sequently defendant’s own by well and the witness) non-accomplice not been building defendant had at the apartment morning day fire. Wright cited also opinion 652 of authority (at p. to the effect “that corroboration of a Md.) material point *8 to connect accused the with the tending crime sufficient for to infer jury accomplice had testified truthfully respect even with matters as which there had been no This was quoted corroboration.” statement with and approval State, 413, v. applied 428, was 221 at Mulcahy Md. 158 80, in Boggs State, and was cited and v. applied A. 2d Md. 228 171-72, 168, A. 338. at 179 2d not extend to need detail.
Corroboration Brown every v. State, 301, 305, 123 324, 210 Md. at A. 2d and cases there cited. recent with dealing more cases
Other corroboration include: 80, State, 221 Md. 217; v. 156 2d Campbell A. Fulton v. 531, 774; State, 223 Md. A. 2d Gray State, 165 v. 224 Md. 865; State, 308, 337, A. 2d Forrester v. 167 224 Md. at 345- 214
47, 878; State, 53, 167 A. 2d Hardison v. 172 226 Md. A. 2d 407; 353; State, De 239, Hart v. Md. 176 and 227 A. 2d State, 256, Foster A. 2d v. 230 Md. 186 619. course, of from may,
Corroboration come the defendant 83, 631; State, himself. and the Garland v. 112 Md. 75 A. Fulton, Forrester, Poster Boggs and Campbell, Mulcahy, cases, cited. just an of in the vicin-
In arson the defendant presence case fire, occurrence, is always whether before or its ity State, Md., Bollinger at supra, relevant. v. 208 307. Evidence admissible an arson case. as to malice or motive also 145, Md. at A. The rele- Hooker v. evidence, course, its of such show vance and admissibility and the defendant’s As both motive materiality. presence was in accomplice. corroborates He set, and vicinity shortly fire before was immediate Aldrich. along he was out of the being put near of the fire the scene was presence defendant’s witness, the plumber, corroborated by independent also he left the so of Aldrich that place and McDowell. first without untruth- addition, is evidence of contradictory
In there relating McDowell whereabouts ful statements being to his or not with Aldrich being time the fire and themselves statements serve may about that time. Such State; Fulton v. accomplice’s testimony. to corroborate State; State; all v. cited Wright Nolan above. think corroborative we con- most important sug- shows McDowell’s presence, (2) that which (1)
sists of fire, setting (3) shows that Al- a motive gests occurred, the scene when the fire leaving from departed drich these, As to the last of the scene. as we have noted, nonaccomplice witness- corrobo- the testimony and contradicted that of the ap- rated ready access appellant At that time pellant. All the fire soon afterwards appeared. three where place material, the testimony were matters accom- these *9 them, as each to two of was corroborated them plice himself. the defendant by above down in the numerous cases the tests laid
Under Boggs cases, Wright, Mulcahy cited, we particularly Aldrich was suf- think that the conviction basis for corroborated to serve ficiently of the appellant.
Judgment affirmed.
Horney. the following dissenting opinion. filed J., belief that it is majority, my to the opinion Contrary relied the evidence be reversed because should judgment of the ac- trial court to corroborate of the defend- thin to conviction support was too complice ant under the circumstances. v. STATE
MILLER Term, 227, September 1962.] [No.