COLLINS, J., delivered the opinion of the Court.
This is an appeal by William A. Coleman, appellant, from a judgment and sentence, of the trial court sitting without a jury, for breaking and entering the store of Consumers Buying Association, Inc., (Consumers), with intent feloniously to steal certain property therein, in Glen Burnie, Anne Arundel County.
The facts of the case are substantially as follows. Robert W. Griffith, a police officer, testified that about
Mr. Morton Forman, an employee of Consumers, testified that the store was closed about 6 P.M. on April 6, 1955. He returned to the store the following morning about 8:45 A.M. and noticed that articles were missing and there were marks at the edge of the rear door. He later went to the Ferndale Police Station where he identified the articles which had been found in the truck by Officer Griffith as the property of Consumers.
Loretta Cox, sixteen years of age at the time the crime was committed and seventeen at the time of the trial below on August 26, 1955, testified that she knew Harry Myers and William A. Coleman, the appellant. At about 11 P.M. on April 6, 1955, she was on Linden Avenue in Baltimore. Myers, Coleman and Dellavox drove up in a truck and asked her to go for a ride. She had known these boys previously. They drove around for a short time and they then drove to Glen Burnie. They parked the truck back of a store and the boys went in and brought out some coffee. They talked there together about twenty minutes. Robert Dellavox remained in the truck with her. Myers and Coleman got out and brought back boxes which they put in the back of the truck. She found out
The appellant contends that there was not sufficient evidence to convict him because he was convicted solely as the result of the uncorroborated testimony of Loretta Cox, an accomplice to the crime charged against him. The State admits in this case that the only evidence against the appellant was that of Loretta Cox.
The crime for which the appellant was convicted, Code, 1951, Article 27, Section 38, statutory burglary, is a misdemeanor. Bowser v. State, 136 Md. 342, 110 A. 854; Hickman v. Brady, 188 Md. 103, 52 A.2d 72; State ex rel. Zukowski v. Warden, 193 Md. 721, 68 A.2d 675; Debinski v. State, 194 Md. 355, 71 A.2d 460. The offense for which the appellant here was convicted being a misdemeanor, all accessories were chargeable as principals. Roddy v. Finnegan, 43 Md. 490, 503, 504; Seward v. State, 208 Md. 341, 118 A.2d 505.
In the case of Anello v. State, 201 Md. 164, 93 A.2d 71, the appellant was convicted of larceny of use of property which was a misdemeanor. It was there said: "It is clear that no one, whether principal perpetrator or aider or abettor, can violate this statute unless he possesses criminal intent. The legal definition of the word `aider' is not different from its meaning in common parlance. It means one who assists, supports or supplements the efforts of another. The word `abettor' means in law one who instigates, advises or encourages the commission of a crime. Thus the word `abet' may import that one is present at the commission of a crime without giving active assistance. Creasy v. Commonwealth, 166 Va. 721, 186 S.E. 63; State v. Epps, 213 N.C. 709, 197 S.E. 580; State ex rel. Martin v. Tally, 102 Ala. 25, 15 So. 722, 737; State v. Western Union Telegraph Co., 13 N.J.Super. 172, 80 A.2d 342, 355. * * * To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential
It is stated in 2 Wharton, Criminal Evidence, 229, Sec. 448, et seq. (12th Ed.): "An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime. The term `accomplice' does not include a person who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related but distinct offense. To constitute one an accomplice, he must perform some act or take some part in the commission of the crime or owe some duty to the person in danger that makes it incumbent on him to prevent its commission. An accomplice is `one culpably implicated in, or who unlawfully co-operates, aids, abets, or insists in, the commission of the crime charged.'
"The generally accepted test as to whether a witness is an accomplice is whether he himself could have been convicted for the offense, either as principal or accessory."
In Anello v. State, supra, the accused was convicted of unlawfully carrying away a Cadillac automobile out of the custody and use of the owner. The police pursued the automobile and three men jumped out and ran. Anello was one of the men caught. He claimed that he did not know or suspect that the car was not in the legal custody of the driver until the driver jumped out of the car. In that case the appellant had had considerable experience in the unauthorized use of automobiles. He had been convicted of unlawfully taking nine cars. He had also
In Seward v. State, supra, the accused, who was convicted of malicious destruction of property, knew all about the bombs which were used, who was making them and who was setting them off. He also knew that one of the boys in the car had bombs with him. The bombing was discussed and contemplated. At one time he got out of the car when the intention was to place a bomb in a trash can. Instead of leaving the other boys, he returned to the car which was placed in a position for easy exit while the boy with the bomb in full view took two or three steps and threw it in a water tower. Appellant remained in the car in order to hear the explosion. We there held that we could not say that the trial judge was clearly wrong in finding that the appellant in some way encouraged the commission of the crime.
In Watson v. State, supra, Watson was convicted of the murder of a baby. It was claimed that Polly Conway, one of the witnesses, was an accomplice and that the accused could not be convicted upon her uncorroborated testimony. In that case there was no evidence that Polly Conway knew that the appellant intended to kill the child until he got the tub of water and put the child in it. There was no evidence that she aided or abetted the crime or encouraged it. She was merely a neighbor who had come to assist a woman while she was giving birth to a child without the aid of a doctor. She admitted that she made
In the instant case Loretta Cox said she knew nothing about the intent of the boys to take the television sets and did not know that the store had been broken into until after she heard the crash and went back later to the premises. She was not charged with the crime but with being a juvenile delinquent under Code, 1951, Article 26, Section 51. Any inference that she might have been the lookout could be negatived by the fact that Robert Dellavox stayed in the truck with her while the breaking took place.
This case was tried by the trial judge without a jury. This Court should not reverse a judgment of conviction in a non-jury case unless it finds that the trial court's conclusion was clearly erroneous. General Rules of Practice and Procedure, Part 4, Rule 7(c); Edwards v. State, 198 Md. 132, 81 A.2d 631, 83 A.2d 578, 26 A.L.R.2d 874; Kaufman v. State, 199 Md. 35, 85 A.2d 446; Anello v. State, supra; Willis v. State, 205 Md. 118, 106 A.2d 85. If the record shows any evidence or proper inferences from the evidence upon which the trial court could find the defendant guilty, this Court cannot find that the decision was clearly erroneous. Floyd v. State, 205 Md. 573, 582, 109 A.2d 729; Seward v. State, supra. We cannot say in this case that the trial judge was clearly wrong in finding that Loretta Cox was not an accomplice to the crime for which the appellant was convicted.
In Madison v. State, 200 Md. 1, 87 A.2d 593, Madison was found guilty of murder in the first degree by a jury on June 7, 1951, and on October 24th he was sentenced to be hanged. On April 4, 1952, this Court affirmed the judgment. After a date for his execution had been set, an affidavit was secured on February 15, 1954, from one of the material witnesses which might have indicated that she committed perjury at the trial. On February 16, 1954, the appellant filed a motion in the trial court to strike out the judgment and sentence and for a new trial. On March 9, 1954, the Court with one judge dissenting, denied the motion to strike out the judgment and an appeal was again taken to this Court. We there held in Madison v. State, 205 Md. 425, 109 A.2d 96, that a common law court had no power to strike out or modify a judgment after the expiration of the term in which it was rendered except on the grounds of fraud, surprise or mistake. The obvious purpose of this rule was to secure stability for the judgments of the courts. We also pointed out that, although a writ of coram nobis was not filed, it would not lie to determine whether any witnesses testified falsely at the trial or to present newly discovered evidence. It was there said: "The purpose of the writ is to bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment. It is manifest that if the writ were available to allow the court in which the judgment was entered to decide subsequently whether
Without finding that, if the matters set forth in Loretta Cox's affidavit are true, she was an accomplice in this case, we might point out that Rule 10 (c) of the Criminal Rules of Practice and Procedure provides: "In all other criminal cases the court may reduce a sentence within ninety (90) days after the sentence is imposed, or within ninety (90) days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of appeal." The judgment will be affirmed.
Judgment affirmed, with costs.