Midgett v. StateMidgett v. State
- Reporters:
- ,
- Before:
- Hornby
delivered the opinion of the Court.
This is an appeal by Curtis Edward Midgett, (Midgett or the defendant), who was convicted by a jury in the Criminal Court of Baltimore (Warnken, J.) of armed robbery and kidnapping and was sentenced to consecutive terms in the Maryland Penitentiary of twenty years for armed robbery and fifteen years for kidnapping, a total of thirty-five years. The defendant was tried jointly with Morris Ruckle, (Ruckle), and John Davis, (Davis), on separate indictments for. armed robbery and similar offenses, and a joint indictment for kidnapping. Davis, who was convicted of both offenses and was sentenced to a total of fifteen years, did not appeal. Ruckle, who was also сonvicted of both crimes and was also sentenced to a total of thirty-five years, appealed, but subsequently dismissed his appeal.
In substance the defendant was charged in the first count of the indictment with armed robbery by feloniously robbing Charles W. Zeller, a police officer; with a dangerous and deadly weapon, and violently stealing the police officer’s service revolver, police belt and holster, and flashlight, having a total value of $76.98. The indictment also charged the defendant with five other offenses in six counts, but all except the first count were abandoned by the State at the close of all the evidence.
The kidnapping indictment charged the defendant with feloniously, forcibly and fraudulently “* * * [carrying] and * * * [causing] to be carried within this State a certain person, to wit, Charles W. Zeller, with intent to have [him] carried within this State.”
The State adopted the statement of facts prepared by counsel for the defendant as substantially correct. We shall do likewise insofar as we deem it necessary for the purpose of this decision. A comparison of the summary of facts in the brief with the record demonstrates its completе accuracy. 1
The defendant and Ruckle came to Baltimore from Chester,
The sole occupant of the police car was Officer Charles W. Zeller, (Officer Zeller
or
officer), who stopped his car, came over to the defendant and asked him what his business was there. The defendant got out of his automobile and replied that they were just leaving. The officer asked to see the defendant’s registration card. The card was shown. But, the defendant, who did not havе an operator’s license with him, volunteered that he was not driving, and that the other man was. In the meantime, the officer was shining his flashlight in all directions, and he asked the defendant where the other man was whom the officer had seen walking up the alley. The defendant replied that he was relieving himself. The officer then started around to the other side of the defendant’s automobile and, as he cleared the bumper, he encountered Ruckle. The testimony of the officer at this point is vivid: “[Ruckle] jumped up from the right side of the
The officer was placed in the defendant’s automobile. Before they drove off, Davis went over to the police car, took the keys out of the ignition switch and threw them away. They drove out the Washington Boulevard towards Washington, looking for a place to tie up the officer and leave him, until they came to a point about ten miles out of Baltimore when they pulled into a road near a farm house, stopped and tied the officer’s hands and legs with rope. The officer testified that before he was taken out of the automobile Davis asked him how much money he had. When informed that the
After leaving the officer, the defendant and his companions drove towards Washington. After going about two miles they turned around and drove past thе place where they tied up the officer, who in the meantime had freed himself. It was at this time and in this vicinity that Ruckle finally succeeded in freeing the revolver from the holster. He threw the belt and holster out the window and down a bank alongside the highway. They then proceeded again in the direction of Washington. When they got near Silver Spring, Ruckle got out of the automobile, took his own revolver and the officer’s and hid both in a woods off the high-way. At Silver Spring Ruckle left the automobile and Davis and the defendant proceeded to the outskirts of Washington, where Davis got out, boardеd a bus and returned to Baltimore. The defendant drove into Washington alone, stopped for gas and found the officer’s flashlight under the front seat of his automobile. He threw it out the window on a street in Washington and drove back to Chester. In the meantime, Ruckle telephoned from Silver Spring to his brother in Chester, who drove to Silver Spring with an uncle to pick up Ruckle. Before leaving Silver Spring Ruckle recovered the revolvers he had hidden and took both back to Chester. For a short period of time the uncle, at Ruckle’s request, kept the officer’s revolver under the mattrеss of his (the uncle’s) bed. A day or two later the defendant called on Ruckle in Chester, at which time Ruckle gave the officer’s revolver to the defendant and told him to throw it in the river. The defendant took the revolver, left Chester and drove south. Near Wilmington
During the course of the trial, the defendant became involved in a dispute with his court-appointed counsel concerning certain aspects of his defеnse, including the right of removal of the trial outside of Baltimore City. The defendant prepared a letter to the trial judge, setting forth in some detail the nature of the disagreement between himself and his counsel, wherein he appealed to the judge for permission to question any and all witnesses personally and above all to have Officer Zeller return to the witness stand. He had the note. passed up to the Bench while the State was still putting on its case. The judge did not read the letter. Subsequently, when the defendant took the witness stand in his own behalf he proceeded to bеrate his counsel for refusing to ask questions of the State’s witnesses on cross-examination, particularly the officer, and for not withdrawing from the case so that he could personally ask the questions he wanted asked. The trial judge promptly intervened in the controversy, and following the colloquy which then ensued between the court and the defendant, handed the letter to the defendant’s counsel without reading it and instructed counsel to proceed.
At the close of all the evidence the defendant moved for a directed verdict on both the robbery and kidnapping charges. Both motions were refused. After the arguments of counsel on both sides, the trial court orally gave its advisory instructions to the jury on both charges. The defendant excepted to the instructions with respect to the charge of kidnapping (i) because “kidnapping” was not properly defined, (ii) because the indictment did not charge the crime of kidnapping, and (iii) because the indictment was silent as to an “intent to conceal the policeman”. The defendant did not specifically except to the court’s instruction as to the “standstill” kidnapping. And no question as to the failure of the indictment to charge the crime of kidnapping was raised on appeal.
The jury retired to consider its verdict at 3:34 P.M. It did not return with a verdict until 6:32 P.M. In the mean
The defendant contends: (i) that his motion for a direсted verdict on the charge of robbery should have been
We shall consider the third and fourth points or questions of law first. It is conceded that the defendant was absent from the courtroom on the two separate occasions when the trial court undertook to answer questions which had been addressed to the court by the jury. The answers were not given to the jury in open court but through an exchange of notes while the jurors remained in their jury room. It is also concеded that on the first occasion counsel for the defendant was absent; and that on the second occasion counsel was present and was informed by the court of the questions propounded and the answers thereto.
In this State there is no doubt that an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment unless he has been afforded that right. The constitutional guarantee includes the right of the accused to be present (i) when the jury is charged or instructed on the facts, the law or the form of the verdict, before it has begun its deliberations or afterwards upon its request or by direction of the court; (ii) when the court is repeating a charge or instruction previously given in whole or in part; (iii) when the court communicates with the jury in answer to questions propounded by the jury, or (iv) when there shall be any communication whatsoever between the court and the jury;
unless
the record affirmatively shows that such communications were not prejudicial or had no tendency
In
McBean v. State,
“The error consists of the promise made by the trial judge to the jury, to the effect that, if they found McBean guilty, they might rely upоn him to extend the clemency of the court to the prisoner. * * * The promise thus secured was well calculated to overcome reasonable doubts and coerce an agreement for conviction. It was an unauthorized interference with the deliberations of the jury.”
A similar decision was reached in
State v. Kiefer,
16 S. D. 180,
For the reasons stated, the judgments and sentences of the lower court must be reversed.
Since the judgment and sentence must be reversed as to Midgett and a new trial orderеd, we deem it to be necessary and desirable for the guidance of the lower court and to avoid the expense and delay of another appeal to this Court to decide the points or questions of law raised by the objection to the instructions on the law applicable to the charge of kidnapping, and by the refusal of the motion for a directed verdict on the charge of robbery. See Maryland Rule 885 (Scope of Review).
On the objections to the instructions on the law applicable to the charge of kidnapping, we think it is clear that the instructions were not only misleading and confusing, but were particularly ambiguous with respect to the distinction between kidnapping and false imprisonment.
At common law, the offense of kidnapping was the forcible abduction or stealing away of a person and sending him into another country. “It was regarded as an aggravated form of false imprisonment, since it embraced all of the elements of that offense, with the
additional
element of carrying the victim out of his own country and beyond the protection of its laws.” (Emphasis added.) 1
Wharton, Criminal Law and Procedure,
Sec. 371 (1957). See also 2
Bishop, Criminal Law,
Sec. 750 (9th ed.
1923); Hochheimer, Law of Crimes arid Criminal Procedure,
Sec. 317 (2d ed. 1904). Although at common law, the accused had to carry the person kidnapped into
another country
before he was subject to prosecution for kidnapping, statutes concerning the offense in this country have usually provided that both
intra-state
as well as
inter-state
kidnapping are felonies and severely punishable. See Code (1951), Art. 27, sec. 403. False imprisonment, which is punishable as an aggravated assault, is merely
Statutes in many states, but not in Maryland, tend to obliterate the distinction between the two offenses. Thus, detention for certain specified purposes, such as robbery, extortion, revenge, money, or a reward, which had formerly been considered false imprisonments, have been included in the definition of kidnapping. Some states have gone further and have provided that any seizure of a person with the mere intent secretly to confine or imprison him, or to hold or detain him against his will, would constitute kidnapping. 2 Art. 27, sec. 403, supra, provides:
“Every person, * * * who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person, * * * with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony * * *."
Obviously, this State has not abolished the distinction between false imprisonment and kidnapping. Indeed it has adopted the basic common law concept that to constitute kidnapping there must be a
carrying
of the person from the
Since the indictment in this case charged the defendant with
carrying
the seized officer,
with intent to have him carried,
but did not charge the defendant
with intent to have him concealed,
it is clear that any reference in the charge or instruction to the word “concealed” could have the effect of misleading and confusing the jury and was highly prejudicial to the defendant. In the case of
State v. Altemus, 76
Kan. 718,
“It seems that the evidence does not justify any instruction in regard to inveiglement and decoying. These elements of the crime are charged, but are not supported by any evidence. 'An instruction ought not to be given, although it is a correct statement of the law in the abstract, which is not applicable to the facts that are in evidence.’ ”
A fortiori an abstract instruction ought not to be given where it is not applicable to the offense charged in the indictment.
In a civil case the granting of a prayer, which is calculated to be misleading although it contains an otherwise correct abstract statement of the law, is reversible error.
Wash. Fire Ins. Co. v. Davison,
On the refusal of the motion for a directed verdict on the charge of robbery, we think it is clear that the refusal of the trial court to grant the motion was proper. Under the Constitution of this State, Art. XV, sec. 5, we have the right and duty, when a question is properly submitted, to pass upon the legal sufficiency of the evidence in a criminal case. The question here is whether the evidence produced is sufficient to show either directly or by a rational inference that the defendant had an intent to
steal
when he participated in the “taking аnd carrying away”. While it is true that there can be no robbery without a larcenous intent, such intent may be ascertained and determined from the words, acts and conduct of the accused. 77
C. J. S. Robbery,
Sec. 22. In the case now before us, there is evidence that the defendant and his co-defendants took and carried away the officer’s service revolver, police belt, holster and flashlight at the same time
We believe that under the evidence in this case the question of the intent of the defendant is peculiarly a jury question. In this State, where a jury is the judge of both the law and the facts in a criminal case tried by a jury, the weight of the evidence, or whether the State has proven its case 'beyond a reasonable doubt, are matters which the jury should determine.
Yanch v. State,
In Rex v. Holloway, 5 C. & P. 524, 172 Eng. Rep. 1082 (1833), the accused was indicted for stealing a gun by force from the prosecuting witness who was one of the gamekeepers of the manor of Deconsfield. The gamekeeper, having met the accused and another mаn, whom he knew to be poachers on a part of the manor, seized the accused. The other man rescued the accused, whereupon the accused wrested the gun from the gamekeeper and ran away with it. There was evidence to the effect that the next day the accused was heard to say that he would sell the gun. The gun was never recovered. The case was tried before a jury. The trial judge in summing up instructed the jury that the accused “might have imagined that the * * * [gamekeeper] would use the gun so as to endanger his life; and, if so, his taking it under that impression wоuld not be felony; but if he took it intending at the time to dispose of it, it would be felony. * * * It is a question peculiarly for your consideration.”
In
Mahoney v. State,
Since there was evidence before thе jury in the instant case, which, if believed, would sustain a conviction for armed robbery, the motion for a directed verdict was properly refused.
We are unable to conclude that the error in instructing the jury in the kidnapping case out of the presence of the defendant was not also an unauthorized interference with the deliberations of the jury in the robbery case. When the robbery charge is retried there should be a specific instruction to the jury on the question of the intent to steal. Apparently, the issue was not raised at the original trial, but when the charge of robbery is retried, the trial judge should Instruct the jury to the effect that, if it finds that the defendant, by taking and carrying away the equipment of the officer, intended to steal it, then the verdict should be “guilty”, but, if it finds that he merely intended to disarm the officer, without an intent to steal his equipment at the time it was taken and carried away, then the verdict should be “not guilty”.
In making this decision we have not overlooked the cases cited by the defendant, including
Fortenberry v. State,
Since there is to be a new trial on both the robbery and kidnapping charges, there is no reason for us to consider the fifth and final questiоn raised by the defendant as to his complaints against the attorney who represented him at the trial in the lower court.
Judgments and sentences reversed, and a new trial is hereby awarded on both the robbery and kidnapping charges; the Mayor and City Council of Baltimore City to pay the costs.
Notes
. We commend the learned court-appointed counsel for the overall excellence of his brief for the defendant, which has furnished us with unusual assistance.
. See Note, “A Rationale of the Law of Kidnapping”, 53 Colum. L. Rev. 540 (1953).
. The cases of
State v. Morris,