115 A. 853 | Md. | 1921
The appellant was tried, convicted and sentenced under an indictment containing four counts, which charged that he, together with George D. Jenkins, Howard E. Dorsey and Crilley D. Bell, on August 14, 1920, in Baltimore County: (1) Robbed a certain Harrison Crowell of 1296 quarts of whiskey belonging to Zucker-Steiner and Company; (2) Assaulted Harrison Crowell with intent to rob him of certain goods and chattels of Zucker-Steiner and Company; (3) Assaulted and beat Harrison Crowell, and (4) Unlawfully received certain stolen goods and chattels of Zucker-Steiner and Company. An important question in the case is whether the court below properly sustained a demurrer by the State to a plea of former acquittal filed by the defendant. In substance the plea states that the defendant was tried and acquitted under an indictment containing four counts, which charged that he, together with George D. Jenkins, Howard E. Dorsey and Crilley D. Bell, on August 14, 1920, in Baltimore County, (1) Robbed a certain Walter Sklon of 1296 quarts of whisky belonging to Zucker-Steiner and Company; (2) Assaulted Walter Sklon with intent to rob him of certain goods and chattels of Zucker-Steiner and Company; (3) Assaulted and beat Walter Sklon, and (4) Unlawfully received certain stolen goods and chattels of Zucker-Steiner and Company. The plea alleges that the evidence produced at the trial under the indictment just referred to showed that William Harrison Crowell and Walter Sklon were in charge of a truck loaded with 250 cases of liquor belonging to Zucker-Steiner and Company, and had a break-down on the Belair Road in Baltimore *540 County on or about August 14, 1920, and were then and there robbed of the liquor. It is further stated in the plea that the robbery described is the offense to which both of the indictments refer, and that the acquittal of the defendant on all the counts of the indictment previously tried precludes his trial under the present indictment, which is said to differ from the other only in the substitution of the name of Harrison Crowell for that of Walter Sklon as the person upon whom the assault and robbery were committed.
The plea is addressed to the whole of the present indictment, and it must, therefore, be a sufficient answer to each count of the indictment in order to be held good as against a demurrer.Fox v. State,
It thus appears that there are counts in the indictment in this case to which the plea, directed to the indictment as a whole, makes no effective answer, and consequently we must hold that the demurrer to the plea was rightly sustained.
The case was submitted for trial by the court below without a jury, and a general verdict of guilty was rendered, and upon it was based the judgment from which the defendant has appealed. It has been argued in this Court that the verdict is invalid because it does not discriminate between the count of the indictment charging robbery and that accusing the defendant of receiving stolen goods. A general verdict on these counts is said to be inconsistent in law and hence not a proper basis for the judgment. It does not appear that this question was raised in the court below by a motion in arrest of judgment or by any other method. In Mitchell v. State,
None of the evidence produced at the trial below is set forth in the record, and we are, therefore, not informed as to whether any of it related to the count which charged the defendant with receiving stolen goods. In 16 C.J. 1108, note, it is said: "One cannot be convicted of robbery and also of receiving the goods which were the subject of the robbery; and where the evidence leaves it in doubt of which of these offenses defendant is guilty, a general verdict of guilty must be set aside. Tobin v.People,
The evidence in the case at bar may have been directed exclusively to the robbery count of the indictment, and that *543 relating to the receipt of stolen goods may have been ignored both by the prosecution and the defense as immaterial. If the general verdict was supposed to be improper because of the presence of the latter count in the indictment, the trial court could have determined the question in the light of the evidence upon which it rendered the verdict. A conviction on either the robbery count or that charging the receipt of stolen goods would support the sentence imposed. But the question not having been raised below, we find no just reason, under the conditions presented, to make it the basis for the award of a new trial.
Judgment affirmed, with costs. *544