Massey v. State

256 A.2d 614, 7 Md. App. 615, 1969 Md. App. LEXIS 368

• Court: Court of Special Appeals of Maryland
• Decided: September 9, 1969
• Docket: 475, September Term, 1968
• Status: Published

Opinions

Morton, J.,

delivered the majority opinion of the Court. Orth, J., concurs. Concurring opinion by ORTH, J., at page 618 infra.

The appellant was convicted by a jury in the Criminal Court of Baltimore of robbery, assault' with intent to rob and assault. He was sentenced to serve five years on the robbery conviction; three years on the assault with intent to rob conviction, to run concurrently with the sentence in the first conviction; and two years on the assault conviction, to run consecutively to the sentence on the first conviction.

The record indicates that John Givvines, a newspaper vending machine operator, collected the money from his newspaper racks at 1:40 a.m. and, after having a bite to eat at a friend’s house, was walking toward an intersection to take a bus home when he was “jumped from behind” by an individual who knocked him to the ground, “hit me across the face and split my eye” and then took the loose change out of Givvines’ pants pocket. Givvines managed to extricate himself and ran to a police car cruising in the area. He advised the officers that he had been robbed by a Negro youth who was wearing a red jacket and a white bandage on his arm. The police put Givvines in their car and, after cruising the area for “a minute,” Givvines shouted, “That’s the man who robbed me.” When apprehended, after a short chase on foot, the appellant was wearing a red jacket and a white wristband supporter. He was taken to the police station where a search revealed that he had $7.39 in loose change. The turnkey who conducted the search testified that the appellant accused him, at the time of the search, of framing him by placing the change in appellant’s pocket.

The victim was unable to identify the appellant at the trial. The arresting officer, however, identified the appellant, who was sitting among the spectators in the courtroom, as the inidividual he had chased on foot and apprehended after he had been pointed out to the officer by Givvines as the man who robbed him.

The appellant admitted being in the vicinity at the time of the crime but denied committing it.

In this appeal it is contended that the appellant’s conviction should be set aside because the victim’s failure to identify him at trial rendered the officer’s testimony concerning the victim’s identification of appellant at the scene of the crime inadmissible. This contention is not properly before us inasmuch as the officer’s testimony came in without objection. Md. Rule 1085; Smith v. State, 6 Md. App. 23, 28.

We find no merit in appellant’s additional contention that “it was error to have placed any credibility on the testimony of the State’s witness where this testimony was contrary to that of the appellant.” It is well settled that the credibility of witnesses is for the trier of facts to determine. Brown and Shepard v. State, 6 Md. App. 631; Graham v. State, 6 Md. App. 458.

Nor is there any merit in appellant’s contention that he was subjected to cruel and unusual punishment. Sentencing is within the province of the trial judge and he was not required to accept appellant’s appeal to be given an opportunity to enter the armed services in lieu of being sentenced. The sentences were within the statutory limits and there is no evidence that they were dictated by passion, prejudice, ill-will or any motive on the part of the trial judge other than a sense of public duty. Love and Matthews v. State, 6 Md. App. 639; Bailey v. State, 6 Md. App. 496.

We do agree, however, that the convictions for the crimes of assault with intent to rob and assault must be vacated. It is apparent, under the circumstances here, that the facts necessary to prove the assault with intent to rob and the assault were essential ingredients in proving the greater crime of robbery. Accordingly, they merged into the greater crime and must be vacated. Price v. State, 3 Md. App. 155, 160; Tender v. State, 2 Md. App. 692, 698-701; Burks v. State, 1 Md. App. 81, 85.

Judgment affirmed as to the first count: judgments as to the second and third counts vacated as merged into the first count and sentences imposed thereon vacated.