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Johnson v. State

Decided: December 6, 1961.

JOHNSON
v.
STATE



Appeal from the Criminal Court of Baltimore; Carter, J.

Brune, C. J., and Henderson, Hammond, Prescott and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

Berchell Elwood Johnson was found guilty of robbery by a judge of the Criminal Court of Baltimore, sitting without a jury, and sentenced to ten years' confinement in the Penitentiary. He appeals.

The only question involved is whether the trial court's finding of guilt was clearly erroneous. Maryland Rule 741 c.

The proof, stated in a light most favorable to the State, was to the following effect. Jean Moore, a convicted prostitute, rented a first-floor, or basement, apartment, located at 1405 Eutaw Place. The appellant, who claimed Norfolk, Virginia, as his residence, spent two or three nights a week at this apartment; and his brother, Lacy, who was "going with" Jean, likewise, spent much time, or actually lived, at the apartment.

On the night of January 5, 1961, at about 8 P.M., one Fred Shuler went to the New Deal Tavern in Baltimore, where he met and drank with Jean Moore and Lacy Johnson, both being previously unknown to him. When the bar closed at 2 A.M. the following morning, Jean Moore invited Shuler to visit her apartment; and, upon her promise to meet him there later, he went to the apartment, accompanied by Lacy Johnson, one Ben Walker, and a Della Shelley. The appellant was in bed on the couch in the apartment when the group arrived. Almost immediately upon entry, Lacy grabbed Shuler, pressed a knife to his throat, and relieved him of his watch and money. Although Della Shelley, Ben Walker and the appellant were present and remained in the apartment throughout the robbery, all agreed (except Lacy and appellant, who attempted to implicate Walker), including Shuler, that Lacy was the only participant in the crime. All present were in accord that appellant took no part in the affair (which consumed only a minute or two), and he was not indicted or tried for any complicity therein.

That same morning, at approximately 7:30 A.M., one Gerald Hayes also went to the New Deal Tavern, which had been closed from 2 A.M. until 6 A.M. The record does not disclose whether Jean Moore had returned to her apartment after 2 A.M., or had remained out, drinking at other bars that stayed

open all night. At any rate, Hayes, like his predecessor, Shuler, became acquainted with and accepted an invitation from Jean to go to her apartment for "a little fun." After he had purchased a fifth of whiskey, they left the Tavern at about 9 A.M. and proceeded to her apartment. They had a "couple of drinks," got undressed, and went to bed. He, having worked the previous night, fell asleep shortly thereafter. When he awakened, his wallet was gone, and he asked Jean where his money was. Her answer was evasive, but when he threatened to call the police, she gave him $20.00 of the estimated $25.00 that he had with him, so he put the money in his wallet, placed the wallet in his pocket, and started to dress before leaving. (We now arrive at the crucial part of the testimony.) At this point, Lacy Johnson and the appellant, who had a broken arm with a cast on it and a fractured hip, came in. Hayes testified that Lacy struck him in the eye, and someone, Hayes did not know who, "hit [him] on the head." He was rendered unconscious, and, when he came to, he was on the street being picked up by a police officer (the officer stated that this occurred about 12:15 P.M.). His wallet, money, keys and penknife had been taken from him.

A State's witness testified that, at about this time, he saw Lacy, alone, bring "a fellow out" of the apartment, Lacy holding on his arm, and blood was "all over this fellow's face." This witness did not see the appellant outside the apartment at this time, but did see him on the inside.

Officer Steinwedel was present at the apartment when Lacy and the appellant were arrested very shortly after Hayes was robbed. Hayes' stolen property was found on Lacy, and none of it was in the possession of the appellant. The officer noticed blood upon the cast being worn by the appellant, a fact conceded by him. The appellant, when questioned shortly after his arrest, told Sergeant McKew that the blood got upon the cast when he assisted Hayes in getting up after his brother had knocked Hayes down, and he testified to the same effect at the trial.

The appellant, in his statement to the police and his testimony at the trial, denied any participation in the crime. (He did try to implicate ...


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