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Foster v. State

Decided: December 13, 1962.

FOSTER
v.
STATE (TWO APPEALS IN ONE RECORD)



Appeals from the Criminal Court of Baltimore; Prendergast, J.

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

Horney

The defendant (Lindsey Calvin Foster, Jr.) was convicted by the Criminal Court of Baltimore sitting without a jury of two conspiracies under separate indictments, and has appealed.

The Conspiracy To Kidnap

Under one indictment (No. 2605/61), the defendant was charged with conspiring with Alfred Pittore and others to carry (i.e., kidnap) Edward L. Corbi within the State.

The record shows that James Ball testified that following a meeting between Ralph Norton, Pittore and the defendant at the home of the latter, all of them, including Ball, proceeded in two cars to Market Place in downtown Baltimore as planned. On the way, the defendant, who was riding with Ball, told him that he was "leery of snatching Corbi." At the rendezvous, Norton described Corbi to all present, and Ball left to go to Corbi's restaurant, apparently to reconnoiter the situation. Later when Ball informed the defendant that Pittore and Norton had disagreed about something and were not going through with the kidnapping, the defendant responded that he was through too. And when Pittore suggested that the remaining three go to Corbi's home, Ball and the defendant declined. Ball admitted that he and Pittore had done some planning, but stated, that to his knowledge, there had been no agreement between the other conspirators and the defendant. In a statement made to the police, the defendant confessed his participation in the conspiracy.

In this case, it is contended that the conviction cannot be sustained because the only evidence the State produced to prove the corpus delicti, other than the confession of the defendant, was the uncorroborated testimony of an accomplice and co-conspirator. The contention is wholly without merit. The evidence apart from the confession need not establish the corpus delicti beyond a reasonable doubt. And such other evidence is sufficient if, when considered in connection with the confession, it

satisfies the trier of facts beyond a reasonable doubt that the crime charged was committed and that the accused committed it. Pierce v. State, 227 Md. 221, 175 A.2d 743 (1961); Hall v. State, 213 Md. 369, 131 A.2d 710 (1957); Bollinger v. State, 208 Md. 298, 117 A.2d 913 (1955). And while an extrajudicial confession does not warrant a conviction unless there is also independent evidence tending to establish the corpus delicti, the identity of the accused as the offender is not a necessary element of the corroboration. Weller v. State, 150 Md. 278, 132 Atl. 624 (1926). Moreover, the testimony of an accomplice is admissible to prove a conspiracy and such evidence may be corroborated by the confession of the defendant. Garland v. State, 112 Md. 83, 75 Atl. 631 (1910). As to the contention that the corpus delicti should have been proved before the confession was received as evidence, the short answer is that the confession came in without objection. See Maryland Rule 522 d 2. And, in any event, the order of proof is largely a matter within the discretion of the trial court. Bollinger v. State, supra.

The Conspiracy To Rob

Under the other indictment (No. 3307/61), the defendant was charged with conspiring with Alfred Pittore, George Barry, Ralph Norton and others to rob Frank Speca with a dangerous and deadly weapon.

The record discloses that Speca, who was accustomed to carrying large sums of money and had been previously robbed, testified that he had received a telephone call at a public booth from a man (then unknown to him but later identified as the defendant), who told him that he would show him who had stolen his money on the prior occasion. In response to the call, Speca picked up the defendant and as directed drove to and parked on a vacant lot, where another man, after whistling to the defendant, came out of some bushes and joined them. Speca was then forced down a hill to a point under a bridge, where three other men, wearing steel helmets and brandishing revolvers, met them. ...


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