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Veney v. State

Decided: February 22, 1962.

VENEY
v.
STATE (FOUR APPEALS IN ONE RECORD)



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

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

Prescott

This case involves four appeals in one record from judgments entered after verdicts of guilty by a judge in the Criminal Court of Baltimore, sitting without a jury. The appellant was found guilty of assaulting with intent to murder one Max Schwartz, case No. 1149; assaulting with intent to murder a certain Melvin Gardner, case No. 1151; attempting to rob said Schwartz with a deadly weapon, case No. 1150; and carrying a concealed weapon, case No. 1152.*fn1 The indictments contained other counts, but none of them, except one, has any bearing upon the outcome of the case.

Appellant enumerates three assignments of error in his brief, but they are, in reality, two; consequently, although all of his contentions will be answered, this will be done under two headings.

I

Under this heading, we have the familiar and oft-repeated claim of insufficiency of the evidence to support the convictions. Apparently in a commendable effort to save costs, the testimony is set forth in narrative form. It leaves no doubt as to its sufficiency to support all of the above convictions.

Schwartz testified that he was the owner and operator of a grocery and liquor store located in Baltimore City. On March 11, 1961, when he and his clerk, Gardner, were alone in the store, a male Negro entered and ordered a quarter of a pound of cheese from the clerk. While the clerk was getting the cheese, the customer moved quickly toward the witness and drew a revolver from under his coat, pointing it at the witness. The witness promptly grabbed the gunman, who struck the witness with the gun, felling him to the floor. Gardner leaped over the counter and grappled with the gunman, who struck Gardner over the head with the gun also, and then ran to the front of the store, where he pointed the gun at the witness and pulled the trigger, but the gun failed to fire. He and Gardner together again went after the gunman, who again struck Gardner with the gun, and then tried to fire the gun, but it misfired a second time. The gunman ran out the front door pursued by Gardner, and just around the corner on Barnes Street the witness saw them on the ground, with Gardner on top. He called the police, who arrived in a few minutes and arrested the gunman. He positively identified the appellant as his assailant; and he required hospitalization as the result of needing some 15 to 18 stitches taken in his head.

Practically all, if not all, of Schwartz's testimony was corroborated by Gardner, who also identified appellant as the gunman. Gardner also stated that six stitches were required to be taken in his head; and when he and the appellant got around the corner on Barnes Street "he [appellant] went to click it [gun] like that at me," but before he could do so Gardner "went up underneath him and got to fighting."

Officer Janokowski testified that he and a fellow officer, as the result of a call, went to Schwartz's place of business, where he saw Schwartz with his white coat covered with blood. He approached the scene where Gardner and the appellant were on the ground fighting, and he forcibly took a .38 caliber revolver, containing four cartridges, from the right hand of the appellant.

Appellant, who had a previous record of convictions, including robbery, took the stand and denied having the gun, or having tried to rob Schwartz. He claimed that he was merely walking along the street, when he was attacked, without reason, from behind by Gardner.

Of course, the credibility of the witnesses is for the trier of facts; and, in reviewing the evidence to test its sufficiency, we do not, ordinarily, pass upon its weight, but only determine whether there is evidence and proper inferences from the evidence to support a finding of guilt. The State's evidence as we have summarized it above, if believed by the trial judge, and the proper inferences that may be legitimately drawn from it so clearly permit a finding of all the constituent elements of the above crimes of which the appellant was found ...


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