author: Murphy, C. J.,

text:
    JOHN WESLEY WILLIAMS AND SOLOMON JONES v. STATE OF MARYLAND
    [No. 13,
    September Term, 1967.]

      Decided February 14, 1968.

      The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Bernard A. Greenberg for appellant Williams, and Benjamin E. Brown for appellant Jones.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellants, John Wesley Williams and Solomon Jones, were convicted of armed robbery by the court sitting without a jury on November 9, 1966, and each was sentenced to a term of ten years imprisonment in the Maryland Penitentiary. The questions presented on this appeal relate to (a) the propriety of the court’s action in quashing the appellants’ subpoena duces tecum, (b) the legality of their arrest and the admissibility of evidence seized incident thereto, and (c) the sufficiency of the evidence to support the convictions.

There was evidence adduced at the trial which showed that at 10:15 p.m. on August 27, 1966, three Negro men held up a liquor store in Baltimore City at gun point; that in the course of the robbery, the co-proprietor, Eli Small, was pistol whipped about the head by one of the robbers; that Small and a store clerk, John Wilson, were thereafter shoved into a back room of the store; that the robbers then took about $800 in cash, a camera, a knife, and several bottles of whiskey, fired three shots and fled from the premises; that Wilson promptly phoned the police, reporting the robbery, and Officer Edmund Fry responded to the call, and immediately elicited from Small a general physical description of the three robbers; that while Fry was on his way back to his patrol car to make a radio report of the robbers’ descriptions, a bystander in the crowd which had assembled at the scene of the crime told the officer that he saw the men run out of the store and flee in a red and white Pontiac Catalina automobile and he pointed out the direction in which they fled; and that Fry then reported the information received from Small and from the bystander over his police radio.

Officer Francis Frederick, in his cruising car, heard the radio report of the robbery at about 10:20 p.m. He was about three miles from the scene of the crime when, at 10:35 p.m., he observed a late model red and white Pontiac Catalina containing four colored males. Since this vehicle fit the description of the get away car, Frederick followed it until it stopped at a curb, at which point Frederick drove his police car alongside the Pontiac. The Pontiac backed up quickly, with its wheels squealing, in an attempt to get into an alley. Officer Frederick blocked the Pontiac with his vehicle, and he and his partner then arrested the four occupants of the Pontiac at gun point. Appellants were two of the men in the Pontiac, the others being Albert Offer and Ulise Mack. A search of the persons of the arrested individuals and of the Pontiac uncovered a number of incriminating articles.

Prior to trial, appellant filed routine motions for discovery and inspection under Maryland Rule 728 seeking the names of State’s witnesses, the right to inspect objects obtained from or belonging to appellants, and the substance of any statements made by them to police. They also filed motions to suppress evidence seized from them at the time of their arrest on the ground that the arrest was unlawful and the ensuing search and seizure likewise illegal. The appellants also filed a request for the issuance of a subpoena duces tecum to order the police to produce their records pertaining to appellants’ arrests, “and more particularly the exact records pertaining to the complaint made to the Police Department, the exact method in which said complaint was received by the Police Department, by whom received, giving name, title and department of such person, name of complainant, precise time said complaint was received by the Police Department, precise time said complaint was conveyed to other police, manner of such conveyance, and exact contents and full details of any such message or conveyance.”

While the State promptly provided the information sought by appellants in their motions for discovery and inspection, it did not seek to quash the subpoena duces tecum until the morning of the trial, at which time it made an oral motion to that end pursuant to Maryland Rule 115b on the ground that it was “unreasonable and oppressive” in that it sought “all sorts of records of the police involved in the investigative procedure in this case;” and further that the data sought to be subpoenaed “is not properly subject to subpoena duces tecum, but rather is the subject of discovery under Rule 728.” The court granted the State’s motion to quash after an unreported bench conference was held, but it gave no reasons for its conclusion. It does not appear from the record that appellants at any time prior to the court’s ruling on the State’s oral motion to quash advised the court that all they really wanted, as they now concede, was to listen to the tape of the police radio calls upon which the State’s case of prohable cause to arrest was predicated. As the trial progressed, however, it became evident that the information sought by the subpoena was, in reality, so limited and, at the conclusion of the State’s case, the appellants specifically requested, for the first time, so far as the record shows, that they be permitted access to the tape. They then acknowledged that the tape could only be played on the playback machine in the communications division at police headquarters, and they requested that the court listen to the tape prior to ruling on their motion to suppress the evidence. At this juncture of the trial, the State’s testimony on the issue of probable cause had been completed, and its witnesses cross-examined; and while the court stated that ordinarily it would agree that it would be proper for the appellants to know what the tape contained, it declined at that time to go to the police station to hear the tape and held, primarily on the basis of the testimony of Officers Fry and Frederick, that there was probable cause to arrest. Appellants’ motions to suppress were, therefore, denied.

Appellants contend that the trial court erred in quashing the subpoena since there was no showing made out that it was “unreasonable or oppressive” under Maryland Rule 115b. They contend that the important question relating to probable cause to arrest does not concern itself with who gave the officers the description of the robbers and of the get away car, but whether such descriptions were given to the officers at all, and, if so, whether they were included in the police radio broadcast of the crime.

The State on the other hand contends that the subpoena improperly sought “the investigative work product” of the police department, and that such product is neither discoverable, nor may it be subpoenaed; and that in Whittle v. Munshower, 221 Md. 258, it was held that police records are not public records, nor are they open to inspection and that, absent a statute, they are “confidential.” The State further contends that appellants had ample opportunity to cross-examine the State’s witnesses who testified on the issue of probable cause, and that under these circumstances, it was not an abuse of discretion for the court to quash the subpoena.

The request for the issuance of the subpoena was not dated, but it appears from the record that the subpoena was issued at least four days prior to the trial date. The record indicates that the State’s Attorney first learned of the subpoena on the morning of the trial and that in compliance therewith had “the police file” in court. Just what the “police file” consisted of is not shown in the record.

Whether the police tape is discoverable under Rule 728, as apparently conceded by the State’s Attorney at trial, but apparently now disputed by the Attorney General on appeal, is not the question presently before us; rather it is whether it was an abuse of the lower court’s discretion to quash the subpoena, as drawn and issued, in view of all the circumstances revealed by the record before us. In considering this question, we do not have the benefit of the arguments of counsel, if any were made, with respect to whether the subpoena was “unreasonable or oppressive” and, as heretofore indicated, the record does not disclose the basis for the court’s action in quashing the subpoena. Nor do we know whether appellants in fact limited their request at the outset to the police tape; certainly, the language of the subpoena, while broad enough to cover the tape, was so broad as to give little indication that it was the police tape that the subpoena specifically sought to reach. Neither does the record disclose whether the tape in question was in existence at the time the subpoena was issued. And the record is devoid of evidence to show the manner in which the Police Department of Baltimore City maintained its tapes of police calls. While it is our understanding that each such tape covers a maximum of twenty-four hours of calls coming in over thirty existing police lines, embracing all radio and call box transmissions, and all calls to the police emergency number, we also understand—and again there is no evidence to establish the fact—that there is a very limited number of such tapes; and that they must be erased and re-used within a relatively short period of time so that, as here, it is probable that the tape in question has long since been erased and re-used. Since it is our further understanding— again not supported by any evidence—that the tapes can only be played back on a large machine located at police headquarters—a machine which cannot be transported into the courtroom — a subpoena duces tecum for the tape, without more, would be of no practical value as an evidentiary item, unless the police were to treat such a subpoena as a request for a stenographic transcript of the relevant portion of the tape. While we believe that an accused should in a proper case be afforded access to the tapes of police radio calls where probable cause to arrest is squarely in issue, and the State seeks to establish such probable cause on the basis of police information disseminated over the police radio, we cannot, on the state of the record before us, conclude that the lower court’s quashing of the subpoena constituted reversible error, particularly since there was no specific request for the tapes until long after the trial had begun, and no apparent effort made to make arrangements, in advance of trial, for listening to the relevant portions of the tape.

We think appellants’ arrests were lawful as having been based on probable cause to believe that a felony had been committed and that appellants had committed it. It is, of course, well settled that a report of a felony and a description of the perpetrators broadcast over a police radio may furnish probable cause for an arrest. Hopkins and Terry v. State, 239 Md. 517; Farrow v. State, 233 Md. 526; Michaels v. State, 2 Md. App. 424. In the present case, the arresting officer had a description of the get away car and a general description of three colored males who had perpetrated it. Upon seeing a car matching the description of the get away car in near proximity to the crime, and with four colored occupants in it, the officer was clearly justified in attempting to stop it. As we said in Michaels v. State, supra, it is difficult to define when suspicion ripens into probable cause, but we think it plain that such probable cause existed, if not before, when the Pontiac endeavored to elude or escape from the police car. In so concluding, we are not unmindful of the fact that the individual who furnished police with the description of the get away car, and of the direction in which it fled, was never identified by the police. We believe, however, that the test of the reliability of the information received under circumstances such as were here involved is controlled by Jones v. State, 242 Md. 95, where the court held at page 101:

“When a crime of violence has been committed in the early morning hours, and the only chace of apprehending the supected criminal seems to be a prompt apprehension of the car in which he was driving away, the investigating officer cannot be expected to take the time to ascertain and make notes of the names and backgrounds of all the persons at the scene who told him what they had observed. Our system of justice must be responsive, not only to the needs of individual liberty, but also to the rights of the community. United States v. Ventresca, 380 U. S. 102, 112 (1963).”

We think the rationale of Jones fits the facts of this case and we conclude that the arrests were lawful, and that the search of the persons of appellants, as well as of the vehicle at the scene of the arrest, was likewise lawful.

Nor do we find merit in appellants’ contention that the evidence ivas insufficient to support their convictions. They were identified by the victim at the trial, and the incriminating evidence of their involvement in the crime, seized from their person and from the vehicle under their control when arrested, clearly constituted relevant and admissible evidence justifying the trier of fact in concluding that appellants were guilty of the offense charged.

Finally, appellants contend that the court erred in failing to grant their motion for a mistrial when the prosecuting witness was taken before the jury box for the purpose of identifying a co-defendant, Ulise Mack, who had been placed there by his attorney. At this point in the trial, however, appellants had already been identified by the prosecuting witness, and we see no error in the court’s denial of their motion for a mistrial.

Judgments affirmed.

      . Rule 115
      “a. Purpose.

      A summons to a witness, pursuant to Rule 114 (Witness —Summons for), may also command the person to whom it is directed to produce books, papers, documents or other tangible things designated therein, b. Control of Court.

      The court, on motion made promptly and wherever practicable at or before the time specified in the summons for compliance therewith, may (1) quash or modify the summons if it is unreasonable or oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the summons is issued of the reasonable cost of producing the books, papers, documents or other tangible things. The court may direct that books, papers, documents or other tangible things designated in the summons be produced before the court at or prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit them or portions of them to be inspected by the parties.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JAMES LESTER WEST v. STATE OF MARYLAND
    [No. 22,
    September Term, 1967.]

      Decided February 14, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for appellant.

      Louis B. Schmidt, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Martin B. Levinson, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The Appellant, James Lester West, was convicted of second degree murder by Judges E. McMaster Duer and William W. Travers, sitting without a jury, in the Circuit Court for Somerset County (the case having been removed from Baltimore City) and was sentenced to eighteen years imprisonment. This was his second trial, his first trial having been set aside on the basis of Schowgurow v. State, 240 Md. 121.

According to the record, West, at the request of Robert Freeman, the deceased, and Miss Eunice Sheperd, with whom the deceased had lived for seventeen years, drove them and their three children in his car from Baltimore to Sykesville on the morning of August 16, 1963, where they spent the day. The adults consumed approximately eighteen bottles of beer and three pints of whiskey. According to Miss Sheperd, there were some arguments between her and the deceased on their way back to Baltimore and she also testified that when West refused to stop the car at Freeman’s request, Freeman urinated in the back seat. West says he knew nothing of this until he was told about it upon their return to Baltimore. When they arrived back in Baltimore between 7:00 P.M. and 8:00 P.M., West drove them to his home and went in, ostensibly, to use the bathroom. West returned to the car, found his wife standing there talking to Freeman and Miss Sheperd, the children were let out, and the four adults drove three and one half blocks to Freeman’s home. Upon arrival, everyone alighted from the car and Freeman had started in the house when West called to him and requested that he help bring in some articles from the car. According to Miss Sheperd and a Miss Johnson, who lived across the street, Freeman, upon his return to the car, was shot in the back by West as Freeman walked to the rear of the car to open the door and he was shot, again, in the chest when he whirled around. West then got into his car and drove off. Freeman was taken to a hospital and died a few hours later:

West testified that as Freeman returned to the car, he drew a knife and started after him, whereupon West shot him, first in the chest and then in the back of the shoulder in self defense. Both Miss Sheperd and Miss Johnson denied seeing Freeman draw a knife.

In this appeal, West first contends that subsequent to the decision in Schowgurow, supra, no valid indictment may be handed down until the Maryland Constitution has been literally amended by a “Legislative enactment or a vote of the people.” This contention was raised in Hutchinson v. State, 1 Md. App. 362 and found by this Court to be “utterly without merit”. See also Powell v. State, 1 Md. App. 495.

Likewise, the contention that his reindictment and retrial placed him in double jeopardy is without merit. This Court has held that where an accused had exercised his right to have an indictment under Schowgurow declared invalid he may be indicted and tried again since he was not placed in jeopardy when tried on an invalid indictment. Sadler v. State, 1 Md. App. 383, 387.

His contention that the State failed to answer his demand that he be furnished with the minutes of the Grand Jury which returned the second indictment so that he could ascertain “whether anybody testified or not” is moot since the State produced a police officer who testified that he appeared before the Grand Jury and presented evidence against the Appellant in connection with the second indictment.

He next contends that it was error to allow the State to amend the indictment by changing the date of the crime charged from August 17, 1963 to August 16, 1963. This contention is without merit. The State was not confined in its proof to the date alleged in the indictment. Chisley v. State, 236 Md. 607. Moreover, it is apparent that the Appellant was not misled or prejudiced in any manner for he took the stand and explained, in his fashion, the events that took place on the date of the crime.

The Appellant’s contention that the lower court erred in refusing to dismiss the indictment because the language in the indictment was defective is likewise without merit. The indictment was cast in the form prescribed by Md. Code (1967 Repl. Vol.) Art. 27, Sec. 616, which form was approved by this Court in McFadden v. State, 1 Md. App. 511, 516, after having been approved by the Court of Appeals of Maryland in Wood v. State, 191 Md. 658; Kelley v. State, 181 Md. 642; and Neusbaum v. State, 156 Md. 149.

The Appellant finally contends that the lower court’s “findings were not pursuant to the weight of the evidence” and that it erred in not granting the Appellant’s Motion for Judgment of Acquittal. This Court does not weigh the evidence presented to the lower court. Dunlap v. State, 1 Md. App. 444; Hutchinson v. State, 1 Md. App. 362. In reviewing the sufficiency of the evidence in a non-jury case, this Court determines whether the Court below had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant’s guilt. Hutchinson v. State, 1 Md. App. 379; Sadler v. State, 1 hid. App. 383; Dunlap v. State, 1 Md. App. 444; Fisher v. State, 1 Md. App. 505; McFadden v. State, 1 Md. App. 511; and the judgment of the lower court will not be set aside on the evidence unless clearly erroneous. Md. Rule 1086.

It is apparent from the record that there was ample evidence to support the Appellant’s conviction, and, accordingly, it was not error to deny his Motion for Judgment of Acquittal.

Judgment affirmed.


text:
    JAMES ANTHONY a/k/a J. A. McCOY, CALVIN SMITH AND STANLEY THORNTON v. STATE OF MARYLAND
    [No. 28,
    September Term, 1967.]

      Decided February 14, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Robert A. Diemer for appellant Anthony, Jerome Stanbury for appellant Smith, and William R. Scanned for appellant Thornton.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and James B. Kenkel, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

At a joint trial held on December 6, 1966, a jury in the Circuit Court for Prince George’s County found the appellants, James Anthony a/k/a J. A. McCoy, Calvin Smith, and Stanley Thornton, guilty of shoplifting and grand larceny. Each appellant was thereupon sentenced to a term of six years in the Maryland House of Correction. Their principal contentions on this appeal concern the validity of their arrests and the legality of the search of the automobile in which they had been riding when apprehended.

There was evidence adduced at the trial from which the jury could find that on the afternoon of July 28, 1966 Raymond Meyer, the manager of Webster Clothes Inc., a men’s clothing store in the Capital Plaza Shopping Center in Prince George’s County, was alone in his store when appellants Anthony and Smith entered. Appellant Anthony at this time was carrying a large Hecht Company shopping bag, and the pair proceeded to the suit department where appellant Smith tried on several suits. Shortly thereafter, appellant Thornton, who was also-carrying a large Hecht Company shopping bag, entered the premises with another man. As Meyer was approaching appellant Thornton, who had gone to the back of the store, the other man, -who had entered with Thornton, attracted Meyer’s attention by inquiring of him the price of a certain bottle of cologne. At this time, appellants Smith and Anthony were still in the suit department. Thereupon all four men proceeded to move to-ward the exit where Meyer approached them and asked if he-could help them out with the merchandise they had in their shopping bags. The men denied having anything in the bags,, and left the store at the same time. Immediately after their departure, Meyer counted the suits on a rack which he considered a possible target of theft and discovered that three suits were missing. Meyer testified that he had counted the suits in-that rack “within an hour or so beforehand.” He then called' the Prince George’s County Police to report the theft. The police dispatcher, acting on information supplied by Meyer, alerted all police cars that a larceny of four to five suits had occurred at the Webster Men’s store in Capital Plaza, and that the suspects were four colored males, nineteen to twenty-one-years of age, two of whom wore dungarees, one of whom wore-plaid Bermuda shorts, and one of -whom wore a purple shirt. Officer Robert J. Edwards, hearing this information while driving in his police vehicle on the Baltimore-Washington Expressway near Capital Plaza, remembered that a short time before-he had observed a colored male standing beside a Corvair automobile on the rear parking lot at Capital Plaza. Officer Edwards headed toward Capital Plaza where he observed the sameCorvair pulling out of the parking lot with five Negro males, in it. He followed the Corvair for about two miles, noting that one of the occupants was wearing a purple shirt, and that the-driver was the same man he had seen standing beside the car in the parking lot earlier. Officer Edwards stopped the Corvair and approached it on foot, whereupon he observed that, of the-three men in the back seat, two wore dungarees and one wore plaid shorts. Officer Edwards testified that the three appellants were among the occupants of the car. After approaching the car, the officer asked the driver, Richard Bynum, to produce his driver’s license and vehicle registration card. When Bynum failed to produce his registration card, Officer Edwards had the vehicle impounded for lack of proof of ownership. A tow truck was summoned to take the Corvair to the Hyattsville station of the County Police Department, while another police cruiser ■came to take the occupants. Edwards testified that he did not formally arrest or charge the five men at this time, but that, ihad any of them tried to leave, he would have been stopped.

When they arrived at Hyattsville, the three appellants, together with the other passenger, were taken to the Squad Room ■of the Uniform Division. Bynum, the driver, was taken to the Detective Bureau where he was asked about the ownership of the car he had been driving by Detective James Fitzpatrick. A check with the authorities substantiated that Bynum in fact ■owned the vehicle. At this time, Mr. Meyer from the Webster store arrived at the station, and Detective Fitzpatrick took him to the Squad Room where he identified the four subjects as being the men he had observed in his store earlier. They were then formally charged with larceny. Detective Fitzpatrick then returned to the Detective Bureau where he advised Bynum of his right to remain silent and of his right to counsel. The officer then re■quested that he be allowed to look in Bynum’s vehicle. Bynum ■consented to the search and signed a waiver statement indicating his consent which was introduced into evidence at the trial. Although each of the appellants testified that Fitzpatrick had told Bynum that if he would not consent to the search, he would ■rip the trunk open, Fitzpatrick testified that no threats, promises, or inducements were made to Bynum and that none of the appellants were present when he had discussed searching the ■car. Bynum signed the waiver document approximately fifteen minutes after he had arrived at the station.

After consenting to the search, Bynum was taken to the parking lot adjacent to the station where he, in the presence of Fitzpatrick, Mr. Meyer, and Detective Salter, opened the trunk of the car with his key. Inside the trunk they discovered two large Hecht Company shopping bags containing two suits each. Detective Fitzpatrick pulled the suits from the bag; they had Web ster’s labels and tickets on them. Mr. Meyer identified the suits, and they were received into evidence at the trial.

Appellants contend that their arrests were illegal and that the ensuing search of the vehicle in which they were passengers was likewise illegal since they did not consent to it, and are not bound by the owner Bynum’s consent to search the vehicle; and that, in any event, Bynum’s consent to search was not voluntarily given.

On the record before us, we hold that the arrest of the appellants occurred when Officer Edwards stopped the Bynum vehicle and removed appellants to police headquarters. That the officer then had probable cause to believe that a felony had been committed and that the appellants had committed it is too clear to require extended discussion; suffice it to note that Edwards, as a member of the police team investigating a reported crime, had specific and reliable information from which he concluded that the felony of grand larceny had been committed and that persons matching appellants’ description had committed it. See Michaels v. State, 2 Md. App. 424; Lamot v. State, 2 Md. App. 378. The arrest being lawful, the police could, as an incident thereto, search the vehicle in which appellants were passengers at the time of their arrest. Knotts v. State, 237 Md. 417; Barton v. State, 2 Md. App. 52; Gaudio v. State, 1 Md. App. 455. And while ordinarily a search of a motor vehicle can be incident to an arrest only if it is substantially contemporaneous therewith and is confined to the immediate vicinity of the arrest, Preston v. United States, 376 U. S. 364, Wilson v. State, 2 Md. App. 210, in some circumstances a search may be deemed incident to an arrest, although not conducted at the scene of the arrest, when it is made with reasonable promptness at a police station to which the vehicle was towed immediately following the arrest. Thus, in Arwine v. Bannan, 346 F. 2d 458 (6th Cir.), it was held at page 470-471 that the arrest and warrantless search of the defendant’s car at a police garage more than three hours after his arrest was nevertheless incident to his arrest since the arrest and search were “units of an integrated incident.” In Price v. United States, 348 F. 2d 68 (D. C. Cir.), the search of the defendant’s car was made after it had been impounded in the police parking-lot following his arrest and transportation to the police station. The court, in upholding the search, said at page 70 that it was “part of a continuing series of events which included the original arrest and continued uninterruptedly as lawful police investigation and action.” In Trotter v. Stephens, 241 F. Supp. 33 (E. D. Ark.), the search of the defendant’s automobile outside of the jail to which he had been taken following his arrest was held valid, though made several hours after his arrival, the court there ruling at page 41 that the car had been obtained incident to and contemporaneous with defendant’s arrest, and that the subsequent search thereof was “merely part of one continuous act.” In United States v. Theriault, 268 F. Supp. 314 (W. D. Ark.), the search of the defendant’s truck outside the police station to which he had been taken after his arrest was upheld, the court there ruling at page 324 that it was part of “an uninterrupted and continuing action of the police initiated by the lawful arrest of the defendant.” To like effect, see Rodgers v. United States, 362 F. 2d 358 (8th Cir.); Crawford v. Bannan, 336 F. 2d 505 (6th Cir.); People v. Webb, 424 P. 2d 342 (Calif.); People v. Robinson, 402 P. 2d 834 (Calif.); State v. Wilson, 424 P. 2d 650 (Wash.); State v. McCreary, 142 N. W. 2d 240 (S. D.); State v. Wood, 416 P. 2d 729 (Kan.); State v. Putnam, 133 N. W. 2d 605 (Neb.). It is true, of course, that the rule authorizing a warrantless search of a motor vehicle incident to a lawful arrest is usually justified on the basis of the need of the police to seize weapons and other things which might be used to assault an officer or ■effect an escape, as well as the need to prevent the destruction of evidence of the crime—considerations of no real appli•cability where, as here, the suspects and their vehicle were safely in police custody at the time of the search. But as we «observed in St. Clair v. State, 1 Md. App. 605, 612, and more recently in Lewis v. State, 2 Md. App. 678, these basic reasons justifying a warrantless search incident to a valid arrest are not exclusive, nor do they operate to override the ultimate test ■governing the validity of a search and seizure without a warrant, ■viz., whether under the facts and circumstances present in each case, the search was reasonable under the Fourth Amendment. We hold—on the facts and circumstances of this case—• that the search of the Bynum vehicle without a warrant, undertaken within approximately one hour after it had been towed to police headquarters, and for the sole purpose of discovering evidence connected with a known crime for which appellants liad been arrested, was valid within the rationale of the Arwine, Price, Trotter, Theriault, and other cited cases, on the ground that it was made incident to and substantially contemporaneous with appellants’ lawful arrest. Our conclusion makes it unnecessary to consider the question of whether Bynum’s consent to search the vehicle was binding upon appellants or, conversely, whether appellants, as lawful occupants of the Bynum vehicle, had standing to object to the search, notwithstanding Bynum’s consent thereto. See, however, Carter v. State, 236 Md. 450; Kleinbart v. State, 2 Md. App. 183.

Appellants next contend that the State failed to prove one of the essential elements of the crime of larceny; namely, ownership of the goods allegedly stolen. We cannot agree. Meyer identified the suits taken from the trunk of Bynum’s car, which had Webster’s tags affixed to them, as the suits “taken from the store that I manage at Capital Plaza.” It was established by the testimony of Louis Feldman, who identified himself as Secretary of Webster Clothes Inc., that Meyer was the manager of the store which the corporation owned in Capital Plaza. We think that this evidence was legally sufficient to support a finding that the suits in question were owned by Webster Clothes Inc., a body corporate.

Appellants further contend that the trial judge, in stating to the jury, after final arguments of defense counsel had been concluded, disagreed with their version of the law relating to the right of the police to search the car under the consent given by Bynum went beyond the bounds of mere disagreement with counsel and he became, in effect, an advocate for the State, so much so that his action was tantamount to withdrawing the issue of the legality of the search from the jury’s consideration. We find no substance to this contention, since we think that the court’s remarks to the jury expressing disagreement with the legal principles espoused by the appellants in closing argument were in no way prejudicial to them under the facts of this case; and amounted, in the ultimate analysis, to nothing more than an indication that the court’s understanding of the law was different than that of the appellants. So viewed, we see no error. Wilson v. State, 239 Md. 245; Schanker v. State, 208 Md. 15. That the trial judge did not advise the jury that his remarks were advisory only is of no consequence, since his basic instructions so advised the jury. We further hold that appellants’ contention that the court should have informed counsel in advance of his post-argument remarks to the jury as to the intended substance thereof is equally without merit, there being no requirement that the court advise counsel as contended for by appellants. The court’s basic charge to the jury was made prior to and not after arguments of counsel and its post-argument remarks were not inconsistent with its charge. See Maryland Rule 756 d.

Finally, appellants raise additional contentions in proper person, none of which were raised or decided below. They are, therefore, not properly before us. Maryland Rule 1085.

Judgments affirmed.


text:
    JAMES EARL COX v. STATE OF MARYLAND
    [No. 39,
    September Term, 1967.]

      Decided February 14, 1968.

      The cause was submitted to Murphy, C. J., and AndBRson, Morton, Orth, and Thompson, JJ.

      Milton B. Allen for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and James F. Gcun'ity, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The Appellant, James Earl Cox, was convicted of armed robbery by a jury in the Criminal Court of Baltimore, Judge James-A. Perrott presiding, on November 4, 1966. He was subsequently sentenced to twenty years in the Maryland Penitentiary. This was his third trial.

The record indicates that on March 18, 1961, the Klotzman Pharmacy was robbed. The Appellant was apprehended and charged shortly thereafter with the commission of the robbery. At his original trial in 1961 he pleaded guilty and received a sentence of twenty years. Subsequently, his conviction was set aside and a new trial awarded as a result of post conviction proceedings. The Appellant was again tried in 1965 and was again convicted and sentenced to twenty years in prison. By virtue of his election under Schowgurow v. State, 240 Md. 121, he was awarded another new trial.

It appears that on the night in question, two men entered the pharmacy owned by Mr. Alfred Klotzman. One of them remained near the entrance door, while the other, with a “shotgun or rifle” in hand, proceeded to take in excess of $200 from two cash registers. Mr. Klotzman and two of his employees-positively identified the Appellant as the man carrying the “shotgun or rifle.” The record further indicates that during the course of the robbery, Mr. Klotzman was both shot and hit over the head, resulting in a prolonged period of hospitalization. The Appellant testified in his own behalf and denied any participation in the crime.

He first contends that the trial judge abused his discretion by failing to grant his request for a removal. The sole basis for the Appellant’s request was his allegation that the trial judge was prejudiced. He asserts that at the time of his arraignment before Judge Perrott he had refused to accept the indictment and that, as a result, Judge Perrott had, in the words of counsel, “practically thrown him out of court.” This was emphatically denied by Judge Perrott, as shown by the record.

It is well settled that a criminal defendant has no absolute right of removal in a non-capital case. Heslop v. State, 202 Md. 123; Benton v. State, 1 Md. App. 647. The question of removal rests within the discretion of the trial court and the function of this Court is to determine whether that discretion was abused. Seidman v. State, 230 Md. 305; Benton v. State, supra; Dolan v. State, 1 Md. App. 292. Here the Appellant elected a jury trial. There is no evidence in this record that the Appellant was deprived of a fair and impartial trial, and, accordingly, we find no abuse of discretion by the trial court. Day v. State, 2 Md. App. 334, 341.

The Appellant next contends that the trial judge improperly denied his request for a private trial. He contends that the right to a public trial is a right belonging solely to the accused and that the accused may, therefore, waive this right if he so desires.

It is true that the Sixth Amendment to the Federal Constitution guarantees to an accused “the right to a speedy and public trial.” But we do not read this guarantee as carrying with it a right in the accused to demand a private trial. Under our form of government, secrecy in any phase of its administration is abhorrent; secrecy in the administration of justice is intolerable. Our citizens have the same interest in insuring that fair play is accorded an accused at trial as they do in seeing that the rights of society are preserved and respected in the trial of an alleged offender against its laws. See E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N. E. 2d 896. This is not to say that a trial judge does not have some latitude in the conduct of the trial proceedings to make selective exclusions of members of the public where no prejudice to the accused results. The Court of Appeals of Maryland recognized this in Dutton v. State, 123 Md. 373 (at p. 387) : “In determining whether any part of the public should be excluded from the trial of a criminal case, some discretion must be allowed the trial court.” We find no merit in the Appellant’s contention that it was error to deny him a private trial.

The Appellant next contends that the trial judge improperly denied his request for a free transcript of his second trial. The stenographer’s notes of that trial had not been transcribed prior to the remand of the Appellant’s case and his retrial as a result of Schowgurow, supra. Defense counsel stated to the lower court, “I am well acquainted with what the witnesses said on previous occasions.” Counsel likewise stated: “From my point of view I feel—I never requested the transcript—I felt I didn’t need it.” Also, in reply to the Court’s comment that the request for a transcript of the second trial “looks to me like a purely dilatory tactic,” counsel for the Appellant stated “It may be. I don’t know.” The record also indicates that a copy of the transcript of the Appellant’s original trial was made available to defense counsel and, further, that defense counsel had made an extensive pretrial investigation of the case. Under the circumstances we see no prejudice to the Appellant or any denial of his constitutional rights by the ruling of the trial court.

The Appellant also contends that the trial judge erred in failing to require the State to “discover unto the Appellant,” pursuant to Rule 728 of the Maryland Rules of Procedure. The record indicates that the Appellant’s counsel was given a copy of the State’s answer to a Motion for Discovery which had been filed at one of the Appellant’s previous trials.

The record also reveals the following:

“(Mr. Allen) * * * If Your Honor please, the Defendant advises me and I so advise the Court that he wishes to file a Motion for Discovery. Now, I have never filed a Motion for Discovery in this case for reasons that I feel sufficient in my experience.
“(The Court) Which is very extensive, I might add.
“(Mr. Allen) I never filed one, but the Defendant feels something might be uncovered beneficial to him by such a motion. However, this case has a long history and I am well acquainted with what the witnesses said on previous occasions, the extent of the witnesses, the extent of the investigation, and I felt I was prepared with other Motions and never filed one, but bring that to the Court’s attention as the fifth Motion.”

We cannot find any prejudice resulting from the trial court’s refusal to require further discovery, and, accordingly, his contention in this regard is without merit. See Brown v. State, 1 Md. App. 571.

He next contends that the trial judge erred in failing to grant his request that the jury be instructed “to disregard the identification of the eyewitnesses as being untenable as a matter of law.” No objection to the omission of the requested instruction was made at the conclusion of the charge and, accordingly, the issue is not properly before this court. Md. Rule 756; Bennett v. State, 230 Md. 562; Cropper v. State, 233 Md. 384. In any event, the giving of the requested instruction, as phrased, would have been improper since the weight to be given evidence of eyewitness identifications is for the jury. Logan v. State, 1 Md. App. 213.

The Appellant further contends that certain remarks made by the State’s Attorney to the jury were both improper and prejudicial. The record reveals that the prosecutor, in closing argument, stated to the jury: “After five years the police department disposes of evidence.” The record also indicates that the trial judge immediately admonished the jury to completely disregard the comment, and in his charge to the jury, specifically told them that statements made by counsel during a trial or in argument are not evidence. The Appellant has failed to show any prejudice resulting from the prosecutor’s statement and we find his contention to be without merit. See Day v. State, supra, p. 342.

Finally, the Appellant contends that he “could not receive a fair trial” because his court appointed attorney at the first trial (not his present attorney) failed to examine the records of the Appellant’s then employer which would have shown that he ■was working at the time the crime occurred; that the records ihave now been destroyed, and, thus, he was unable to establish rat his third trial, “a perfect alibi.” This contention is apparently made at the personal insistence of the Appellant for the record plainly indicates that his counsel at the third trial, who is also 'his counsel in this appeal, diligently pursued this phase of the Appellant’s defense. The Appellant’s former employer was lo"cated, the employment records were found to be still in existence; and they revealed that the Appellant did not work on the day of the crime. The record below shows that this was -explained to the Appellant by his counsel prior to trial and, ■ again, in open court, and the Appellant agreed to abandon this particular alibi defense. The final contention, therefore, is not properly before us and, in any event, is without merit.

Judgment affirmed.


text:
    SHERMAN H. TILLERY v. STATE OF MARYLAND
    [No. 43,
    September Term, 1967.]

      Decided February 15, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orti-i, and Thompson, JJ.

      Calvin E. Johnson and Andrew Jackson Graham for appellant.

      Donald Needle, Assistant Attorney General, with whom weie Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Sherman H. Tillery, the appellant, was convicted of assault with intent to rob in the Criminal Court of Baltimore, Judge J. Harold Grady presiding with a jury. The errors alleged appear hereinafter.

Golden Lee, age 63, occupant of the first floor apartment located at 1525 East Madison Street, in Baltimore City, testified that at approximately 10:20 P.M. on April 22, 1965, he was aroused from bed by a knock at his-door. The witness related that when he opened his door two men appeared, one of whom, Melvin Logan, announced an intention to rob him. Mr. Lee was then thrown down and assaulted. While being attacked, Lee was able to draw his pistol and began shooting. Sherman H. Tillery, who was identified as the other person with Logan, started into the apartment behind Logan, and was “trying to get to” the victim. A scuffle ensued during which Tillery was shot. Lee lost his billfold and pistol; the two assailants fled. Mr. Lee did relate that Tillery did not say anything to him at the time of the incident, and that Logan was the active participant. Further testimony showed that Tillery was identified in a lineup by Mr. Lee, although Logan was not.

Officer William Scott related that he saw Tillery at approximately 11:00 P.M. on Guilford Avenue and Lanvale Street at which time Tillery was placed in an ambulance and taken to St. Joseph’s Hospital. The officer questioned Tillery at the hospital to determine who had shot him, and to obtain details as to what had happened to him. Tillery, at the time he was spoken to by the officer, was not in custody, and was not suspected of any crime. Tillery told Officer Scott that he had been shot by a man that had tried to rob him in the 1600 block of Barclay Street near the Club 400. Upon investigation, Tillery’s information, of course, was found to be untrue. Tillery testified he went to the Lee home to borrow money, but Mr. Lee suddenly pulled his pistol and began firing. When the first shot was fired Logan ran without having entered the premises. Tillery admitted that he grabbed the pistol and struggled with Mr. Lee, but however, denied robbing him.

Melvin Logan also testified as a witness for the defense. He stated that he had known the prosecuting witness, Lee, for a long period of time and knew him to be in the loan business. He stated that he had offered to take Tillery to Lee’s house to make a loan. Logan claimed that he stooped down to pick up a pack of cigarettes that had fallen from his pocket and that at that time Mr. Lee began shooting. Logan immediately ran. He was not charged with the offense.

I Double Jeopardy and Speedy Trial

Tillery was originally tried on June 2, 1965, when he was convicted of assault with intent to rob, but the conviction was remanded on appeal, January 12, 1966, because of Schowgurow v. State, 240 Md. 121, 213 A. 2d 475. A retrial on February 6, 1967 did not place Tillery in double jeopardy, as he contends, for he had previously been convicted under an invalid indictment, Sadler v. State, 1 Md. App. 383, 230 A. 2d 372, Gee v. State, 2 Md. App. 61, 70, 233 A. 2d 336.

He was reindicted May 12, 1966 and arraigned June 9, 1966. On November 22, 1966, Tillery orally requested, for the first time, a speedy trial and objected to the continuance of the case because the prosecuting witness had been hospitalized. On December 14, 1966, the trial was again postponed for the same reasons. On January 9th the state was informed that the witness was then available and suggested trial. On January 17, 1967, the first available trial date, the appellant’s counsel was involved in another trial on that date, and requested a later date. Six days later, January 23, 1967, Tillery filed a written motion for a speedy trial. He was tried February 6, 1967. The appellant complains of a denial of a speedy trial.

A determination of a speedy trial motion is not a mere examination of the length of time between the arrest and the trial. The essential ingredient is not speed but “orderly expedition,” State v. Long, 1 Md. App. 326, 230 A. 2d 119. The accused must demand the right, and if he does not he waives the right. The first request for a speedy trial was November 22, 1966 when Tillery learned that the prosecuting witness was hospitalized. As soon as the witness became available Tillery was tried at the first open date, suitable to his counsel, thereafter. The delay was “not unreasonable, or oppressive or purposeful on the part of the State,” State v. Long, supra, 1 Md. App. at page 341. On these facts it is obvious that there was no denial of a speedy trial.

II Oral Statement

Tillery claims the statement he made to the police in the hospital was not admissible and that the trial court was in error in admitting it. The trial judge satisfied himself, by evidence taken out of the presence of the jury, that the statement was voluntary and admissible even though the warnings required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 were not given. We agree. At page 1612 of 86 S. Ct. and page 444 of 384 U. S. of Miranda the Court said :

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person lias been taken into custody or otherwise deprived of his freedom of action in any significant way. 4”

In footnote four, the Court stated that “This is what we meant in Bscobedo when wTe spoke of an investigation which had focused on an accused.” In the case under consideration it is obvious that Officer Scott did not warn Tillery of his constitutional rights, because the appellant was not in custody and the investigation of the robbery was not focused on Tillery. Tillery was merely questioned as a victim of a shooting, and the officer was not aware of any connection between Tillery’s wounds and the Lee robbery. The warnings are not required under these circumstances.

Ill Use of Perjured Testimony by State

Tillery, in proper person, complains that since the State’s Attorney had access to the entire file, grand jury testimony and the prior trial transcript, he was prejudiced because the State’s Attorney “deliberately concealed evidence relevant to the case from the trial court and jury.” It is obvious from the questions asked by Tillery’s counsel of Lee, the prosecuting witness, that counsel had access to his testimony at the prior trial. We can assume that if Mr. Lee’s testimony was inconsistent it w’ould have been impeached. Tillery does not point to any particular discrepancies. Furthermore, this issue is not properly before this court as it was not raised below, Maryland Rule 1085.

IV Line-up

Tillery, also in proper person, complains that established line-up procedures were not followed. Tillery does not point out wherein they were faulty and since the issue was not raised below’ it cannot be raised for the first time here, Maryland Rule 1085.

V Sufficiency of the Evidence

The test in reviewing sufficiency of the evidence in a jury case “is whether any relevant evidence was given to the jury which could have sustained the conviction,” Borman v. State, 1 Md. App. 276, 229 A. 2d 440, Graef v. State, 1 Md. App. 161, 228 A. 2d 480.

The victim identified the appellant as one of of the assailants. If believed, this is enough to convict, Hutchinson v. State, 1 Md. App. 362, 230 A. 2d 352. The trier of facts is under no obligation to believe the appellant’s version, Logan v. State, 1 Md. App. 213, 228 A. 2d 837, Johnson v. State, 2 Md. App. 486, 236 A. 2d 41. The mere fact that Lee’s testimony was inconsistent with Tillery’s does not bring it within Rucharczyk v. State, 235 Md. 334, 201 A. 2d 683. Under Rucharczyk v. State, supra the inconsistencies must occur within the witness’ own testimony and relate to the pertinent issues of the case, see Bell v. State, 2 Md. App. 471, 235 A. 2d 307. This was not the situation here. Furthermore, “weight of the evidence and credibility of the witnesses are for the trier of facts to determine,” Dunlap v. State, 1 Md. App. 444, 230 A. 2d 690. There was ample evidence to sustain the conviction.

Judgment affirmed.


text:
    SYLVESTER HARRISON v. STATE OF MARYLAND
    [No. 68,
    September Term, 1967.]

      Decided February 15, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      James C. Chapin, with whom was William H. Bergman on the brief, for appellant.

      Richard. C. Rice, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

On December 8, 1966 the appellant was found guilty by a jury in the Circuit Court for Prince George’s County of robbery with a deadly weapon and sentenced to imprisonment for a term of 10 years. The indictment under which the appellant was tried contained seven counts as follows: (1) robbery with a deadly weapon; (2) assault with intent to rob with a deadly weapon; (3) robbery; (4) assault with intent to rob; (5) assault and battery; (6) petty larceny; (7) receiving stolen goods. In counts one, two, three, four and five, the assault alleged, as an element of each offense therein charged, was specified as committed on Core Marie Johnson. In counts one, two, three, four, six and seven, the owner of the goods and chattels, moneys and properties therein alleged to be stolen was designated to be Core Marie Johnson. The case coming on for trial on December 6, 1966, the court granted a motion, made in open court by the State, to amend the first, third, fourth, sixth and seventh counts so as to delete the name Core Marie Johnson as the owner of such goods and insert in its place the name of Savannah M. Johnson. However, on the original indictment in the record before us, the requested amendment was made as to the second, third, fourth, sixth and seventh counts and the first count remained as originally drawn—charging the robbery with a deadly weapon of Core Marie Johnson of the moneys of Core Marie Johnson. The case was recessed. The jury was empaneled and sworn on the afternoon of December 7, 1966 and the trial began on December 8, 1966. At the close of the evidence offered by the State, the court granted a motion for judgment of acquittal as to the second and seventh counts and denied a motion as to the remaining counts both at that time and when made at the close of all the evidence. Although it is not clear from the record whether or not the jury knew the indictment had been amended, we do not think that the failure, by clerical inadvertence, to reflect the amendment in the first count of the original indictment requires a reversal of the judgment. In Lee and Freeman v. State, 238 Md. 224, it was argued that the convictions of armed robbery should have been reversed because the State did not prove the allegations in the indictment, that the defendants “* * * feloniously did rob Richard Lad-brook and violently did steal from him Twenty-three dollars * * by showing that Ladbrook was either the owner or the otherwise lawful possessor of the money taken. Ladbrook was the sole attendant on duty at a filling station of Spur Oil Company and testified that the robbers pointed a pistol at him and told him to “give me your money.” He handed them the money but they wanted more and he told them, “I didn’t have no more.” They insisted that he give them more, he reached in his pocket, pulled out nickels and quarters, threw them on the table and told them “here.” The Court affirmed the judgments stating:

“This testimony could have permitted the trier of fact to infer that Ladbrook was the owner of the money taken from him, Sippio v. State, 227 Md. 449, and the literal allegation of the indictment would in such case have been fully proven. If, on the other hand, the trier of fact drew the inference that the money taken from Ladbrook belonged to his employer, the Spur Oil Company, the indictment’s allegations of ownership would likewise have been gratified in the eyes of the law. We have held in a larceny case that the allegation of ownership in A, of the property stolen, is proven satisfactorily upon a showing that A had any legal interest or special property in the things stolen, as where, for instance, A was in lawful possession as bailee.”

So in the instant case, if the evidence was sufficient to show, directly or by inference, that Core Marie Johnson was the lawful possessor of the moneys taken from her, the conviction was proper whether she or Savannah M. Johnson was alleged in the indictment to be the owner. Robbery is larceny from the person, accompanied by violence or putting in fear, Ledvinka v. Home Ins. Co., 139 Md. 434, 439 and the appellant agrees that “to constitute the crime of robbery, the property need not be taken from the owner. It may be taken from someone who had custody over the property and who had a legal interest or special property interest in the goods,” citing Richardson v. State, 221 Md. 85. See also Hadder v. State, 238 Md. 341; Hackley v. State, 237 Md. 566; Flannigan v. State, 232 Md. 13. He contends, however, that the evidence in the case before us is not sufficient to prove that Core Marie Johnson had such possession of the moneys taken from her. We do not agree. The evidence is not disputed that Savannah M. Johnson, the mother-in-law of Core Marie Johnson, was the owner of the moneys and that the store in which the robbery took place was the mother-in-law’s store, but Core Marie Johnson said “we all worked (the store) together.” It was a “little neighborhood store, small store” and the owner and her daughter-in-law lived over the store. At the time of the robbery Core Marie Johnson was “working in the store.” She was “at the soda case, straightening out the box to refill the case” when the appellant and “some more men came in.” One had a pistol and stuck it in her side directing her toward the cash register. She opened the cash register and took $57 and some change out and “the man reached over” and took a bag of pennies out of the register. She was told to put all the money in the paper bag and she did so, giving it to them. “And then one was standing there arguing with me, he told me, said ‘Is any more money in there?' I said ‘No.’ ” The men left the store. From the evidence, the only other person, other than the robbers, in the store during the robbery was an elderly roomer who did not work in the store and who was ordered to come into the store from the storage room where he was when the robbers entered. We think it a rational inference from the evidence that Core Marie Johnson had lawful possession of the moneys taken. We feel it apparent from the testimony that she was in charge of the store at the time of the robbery, had authorized access to the cash register in making sales of the store merchandise and had custody and control of and responsibility for the moneys in the register.

The appellant also contends that there was a fatal variance between the indictment which charged that the deadly weapon was a shotgun and the proof which established the weapon used in the robbery to be a pistol. The testimony of Core Marie Johnson was that one of the robbers had a pistol but she also testified that the appellant “had on a long brown overcoat and it was opened and he had this shotgun down in the inside of the overcoat. But the overcoat was opened and I could see it * * * I don’t know exactly how long (it was). The only thing I know is it was just about this long (no indication in the record as to length) and it had a black barrel * * * He had it down in the inside of his overcoat. His overcoat was opened with his hand. He had to pull back open and I could see * * * I didn’t know whether it was a double barrel or not. All I know, it was a shotgun.” He was holding it by his right hand. “He had it right by the handle or stock or whatever you call it and the thing where the trigger goes through, I don’t know what the name of it is but that was the way he was handling it * * * he didn’t threaten me with it * * * he didn’t point it at me but I did see it.” The appellant urges, in the face of this testimony, that the robbery was committed only with the pistol and not with the shotgun because there was not even an implied threat to use the shotgun. We do not agree. The appellant does not argue that the shotgun was not a dangerous or deadly weapon (See Bennett v. State, 237 Md. 212; Vincent v. State, 220 Md. 232) and it need not be shown that the person assailed was actually put in fear, if the means employed are calculated to instill fear in the heart or mind of a reasonable man, Hayes v. State, 211 Md. 111, 116. Md. Code (1967 Repl. Vol.), Art. 27, § 488 predicates the greater penalty in the commission of a robbery attached to the use of a dangerous or deadly weapon upon the means employed in the intimidation. “So long as there is an intent to rob by that means, it is unnecessary to find an intent or ability to execute the implied threat in the event of resistance.” Hayes v. State, supra, at 115. Even though a co-perpetrator had a pistol which he stuck into the victim’s side, we think the evidence ample for the jury to find an intent on the part of the appellant to rob by means of the shotgun.

The arguments of the appellant actually go to the sufficiency of the evidence. In order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Agresti v. State, 2 Md. App. 278. This Court does not weigh the evidence, but only determines its sufficiency to go to the jury. Culver v. State, 1 Md. App. 406. We find that it was sufficient.

Judgment affirmed.

      . In Corbin v. State, 237 Md. 486, 490, it was held that, under the circumstances there presented, changing the name of the owner of property constituting the subject matter of the crime charged (grand larceny) was a change in form and not substance. See Maryland Rules, 714.

      . Counsel for the appellant below argued to the trial court that there is no such crime as assault with intent to rob with a deadly weapon as charged in the second count. But see Hart v. Warden, 213 Md. 658.

      . The court’s instructions to the jury are not conclusive in this regard and the record does not show that the jury took the original indictment with them to the jury room. Neither the opening statement of the State (counsel for the appellant waived right to an opening statement both at the beginning of the entire case and at the beginning of the case for the appellant) nor the closing arguments of counsel are set out in the record. However, it appears that the case proceeded on the assumption by the court, the State and the defense that the jury had the count correctly before them. The point was not raised below and is not raised on appeal.

      . In the appellant’s brief it is stated, “ * * * as concerns the shotgun, the only crime for which the appellant was guilty was carrying a dangerous weapon.”

      . In view of our holding we need not decide whether the designation of a specific type of dangerous or deadly weapon in an indictment is mere surplusage or whether, when so designated, a fatal variance occurs if the proof does not support the allegation as to the specific type. See Md. Code (1967 Repl. Vol.), Art. 27, § 489.


author: Ortii, J.,

text:
    RICHARD LEE PRICE AND RICHARD JAMES STEWART v. STATE OF MARYLAND
    [No. 76,
    September Term, 1967.]

      Decided February 15, 1968.

      The cause was argued before Murphy, C. J., and AndRrson, Morton, Orth, and Thompson, JJ.

      Blsbeth Levy Bothe for appellants.

      Charles C. Grice, Special Attorney, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Elliott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Ortii, J.,

delivered the opinion of the Court.

The appellants were tried together on two indictments returned against them jointly in the Criminal Court of Baltimore before Judge J. Harold Grady presiding without a jury. Indictment No. 5705 contained seven counts: (1) robbery with a deadly weapon; (2) attempted robbery with a deadly weapon; (3) robbery; (4) assault with intent to rob; (5) assault; (6) grand larceny; (7) receiving stolen goods. Indictment No. 5706 contained three counts: (1) larceny of an automobile; (2) receiving the stolen automobile; (3) unauthorized use of the automobile. Each was found not guilty of receiving stolen goods charged by the seventh count of indictment No. 5705 and “guilty generally as to all other counts.” Each was found guilty of unauthorized use of the automobile charged by the third count of indictment No. 5706. Each was sentenced to imprisonment for a term of 20 years on the convictions under indictment No. 5705 and for a term of 4 years on the conviction under indictment No. 5706, concurrent with the first sentence.

The only contention raised on appeal is that the evidence was not sufficient to sustain the convictions under indictment No. 5705.

On November 4, 1966, Robert Meals, the night manager of the Holiday Inn East located at 3600 Pulaski Highway in Baltimore City, while at work about 1:00 A.M. was “getting ready to call a cab” for one of the guests. He heard the front door-close and, turning around, saw two men approaching the entrance to the desk. Each was carrying a gun. One of the men,, who Meals was unable to identify, because he did not see his face, ordered the bellhop, Alan Hicks, to lie on the floor. Hicks, identified this man as Price. At the direction of Price, Meals opened the cash register and handed him $323 in bills and change. Price asked where the safe was and upon being told it was locked in the manager’s office forced Meals to get the key, open the safe and hand him a cloth bag containing $1166 which was in the safe. During this time, the other man, who Meals identified as Stewart, “was holding the gun on Mr. Hicks.” During his testimony Hicks said that Price was wearing a long-black weather-proof coat. While the robbery was in progress two police officers arrived at the scene on a routine check. They saw a man standing in the doorway leading to the reception desk and then walk to the passage leading to the back entrance of the building. They backed the police car to the rear entrance- and two men ran out and, disobeying an order to stop, ran-to a dark sedan automobile parked in the rear street. One, who-was wearing a long dark coat, jumped into the driver’s seat and the other, who appeared to be carrying a weapon and was. identified by one of the officers as Stewart, was getting in the passenger side when the officer, having fired two warning shots,, “fired another shot or two directly at him.” The car sped away and the officer fired another shot which shattered the rear window. The automobile was found abandoned “the next morning”' in an alley in the rear of the 400 block Patterson Park Avenue.

On November 16, 1966, police officers from Baltimore County and Baltimore City engaged in a high speed chase of an automobile proceeding south on Loch Raven Boulevard. At Asquith and Hoffman Streets the automobile was involved in a collision and three men jumped out and ran. One police officer identified two of the men who ran as the appellants and they were, arrested shortly afterwards by another police officer as they were coming out of an alley in the rear of Asquith Street. The appellants presented no defense to the charges arising from this incident. Eight witnesses were produced by the defense in an endeavor to show that the appellants were elsewhere at the time of the robbery.

In reviewing the sufficiency of the evidence in a non-jury case, this Court determines whether the court below had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant’s guilt. McFadden v. State, 1 Md. App. 511. We have no difficulty in determining that the evidence was so sufficient. Identification of the accused by a single eyewitness has been held sufficient to sustain a conviction. Crumb v. State, 1 Md. App. 98. The weight to be given a courtroom identification is a matter for the trial court. Hutchinson v. State, 1 Md. App. 362. The credibility of the witnesses is for the consideration of the trier of the facts, Borman v. State, 1 Md. App. 276, and alibi testimony is to be weighed by the trial judge who is not required to accept its truthfulness, Logan v. State, 1 Md. App. 213. The evidence was sufficient to prove the corpus delicti and the identity of the appellants as the criminal agents. Therefore, the judgments of the trial court on the evidence were not clearly erroneous and will not be set aside for that reason. Md. Rules 1086.

The general verdict of guilty under indictment No. 5705 convicted the appellants on each of the first six counts (a not guilty verdict being rendered on the seventh count). Manning v. State, 2 Md. App. 177. The conviction under the second count, charging attempted robbery with a deadly weapon, was inconsistent with the conviction under the first count, charging robbery with a deadly weapon. Tender, etc. v. State, 2 Md. App. 692. Having been convicted of committing robbery with a deadly weapon, the appellants cannot be found to have failed to commit it, which is a necessary ingredient in the proof of attempt. Boone v. State, 2 Md. App. 80, 114-115. Inconsistent verdicts of guilty under different counts of the same indictment, when both counts depend upon the same alleged acts, cannot stand. Johnson, etc. v. State, 238 Md. 528, 541. The judgments on the second count must be reversed.

Under the modern concept of the doctrine of merger of offenses, followed by this Court, the test is whether one crime necessarily involves the other. See Tender, etc. v. State, supra. By the application of the doctrine to facts of the instant case, each of the offenses of robbery (third count), assault with intent to rob (fourth count), assault (fifth count) and grand larceny (sixth count) merged into the offense of robbery with a deadly weapon (first count) upon the conviction of each appellant of that greater offense. The judgments under the third, fourth, fifth and sixth counts must be vacated.

The sentence as to each appellant was a general one, covering the convictions under each of the six counts. It appears that the court, as to each appellant, passed judgment on the first count charging the more serious offense, as is common practice in this State. See Berger v. State, 179 Md. 410, 415. As it did not exceed the maximum authorized by Md. Code (1967 Repl. Vol.), Art. 27, § 488 for robbery with a deadly weapon, the reversal of the judgments under the second count and the vacating of the judgments under the third, fourth, fifth and sixth counts do not invalidate the general sentence imposed.

As to each appellant: under indictment No. 5705: judgment as to the first count affirmed; judgment as to the second count reversed; judgments as to the third, fourth, fifth and sixth counts vacated as merging into the first count. Under indictment No. 5706: judgment affirmed.

      . The appellants state in their brief that they “cannot effectively contest the trial court’s finding that they were guilty of unauthorized use of the automobile involved in Indictment No. 5706. There was proof that the automobile was taken without permission; Appellants were apprehended in the vicinity of the place where it had been abandoned after a chase, and the court chose to believe the testimony of a pursuing police officer identifying them as the occupants of the car.” We agree.


text:
    ROGER W. OSBORNE v. STATE OF MARYLAND
    [No. 84,
    September Term, 1967.]

      Decided February 15, 1968.

      The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      William Franklin Gosnett for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. MDylan, Jr., State’s Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

' In this appeal, Roger W. -Osborne, the Appellant, contends that he was denied a speedy trial.

On April 27, 1965, he pleáded guilty in the Criminal Court of Baltimore to charges of escape and assault with intent to murder and was sentenced to a term of seven years in the Maryland Penitentiary to run consecutively to a ten year sentence for another offense not related to this appeal. Notwithstanding his guilty pleas, he appealed and while his appeal was pending in the Court of Appeals of Maryland, Schowgurow v. State, 240 Md. 121, was decided, and his cases on appeal were remanded.

Osborne challenged the original indictments; they were dismissed on March 4-, 1966; and he was- advised by the lower court that counsel would be appointed at a later date to represent him. He was reindicted on February 20, 1967. During the period between March 4, 1966 and his reindictment, he wrote letters to the Clerk of Court, two judges and the State’s Attorney requesting' the appointment of counsel and the immediate disposition of his remanded cases.- On January 30, 1967, he filed, pro se, a “Motion to Drop Detainers and Reindictment Proceedings” and alleged therein that he - had been denied a “speedy reindictment.” Subsequent to his reindictment, counsel w-as appointed to represent him and on April 17, 1967, a hearing was held before Judge J. Harold Grady on the Motion to Drop Detainers and Reindictment Proceedings. The Motion was denied and this appeal is from that denial.

While it is true that both the Sixth Amendment to the Federal Constitution and Article 21 of the Maryland Declaration of Rights give an accused the right to a speedy trial, these constitutional mandates have never been extended to encompass an alleged right to a so-called speedy indictment and it is this alleged right which the Appellant asserts was violated by the State.

The Court of Appeals of Maryland and this Court have held, with exceptions not here pertinent, that “the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of the prosecution if it is within the applicable period of limitations.” Miller v. State, 239 Md. 136, 139; Price v. State, 235 Md. 295, 299; Brown v. State, 1 Md. App. 571, 575. The case at bar is governed by this principle and it is dispositive of the Appellant’s complaint.

When Osborne challenged the validity of his original indictments on the basis of Schowgurow, supra, they properly were ruled to be null and .void. Thus, during the period from March 4, 1966, when the ruling was issued and February 20, 1967, the date of his reindictment, there was no criminal prosecution pending against him arising out of the crimes charged in the original indictment. Presumably, the State could have elected not to seek reindictment or, presumably, the Grand Jury, on the evidence presented, could have refused to reindict. In any event, during this period, which is the period of time that the Appellant contends constituted a denial of a speedy trial, there was no prosecution pending. Hence, he cannot successfully complain of the delay since the institution of the prosecution by the return of the indictments by the Grand Jury on February 20, 1967 was well within the Statute of Limitations. Md. Code (1967 Repl. Yol.) Art. 27, Secs. 12 and 139.

We agree with the Appellant, and the State concedes, that he had a right to appeal from the action of the trial court in denying his Motion. Allen v. State, 1 Md. App. 249. Likewise, the fact of the Appellant’s imprisonment during the period in question should not and, in fact, has not, affected our disposition of this appeal. See State v. Long and Nelson, 1 Md. App. 326.

Judgment affirmed.

      . An accused may, of course, seek trial on an information (rather than on an indictment) as provided for in Md. Rule 709 and thus obtain an early trial.


text:
    RAYMOND GILBERT BROADWAY v. STATE OF MARYLAND
    [No. 91,
    September Term, 1967.]

      Decided February 15, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      Richard D. Rosenthal for appellant.

      William F. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney jor Baltimore City, and James B. Dudley, Assistant State’s Attorney jor Baltimore City, on the brief, for appellee.
   Per Curiam.

Appellant was convicted by the court sitting without a jury of possession and control of narcotics and on an addendum thereto found to be a second offender. He was sentenced to five years imprisonment. He contends on this appeal that the court erred in receiving the incriminating narcotics in evidence and that, in any event, the evidence was insufficient to support his conviction.

There was evidence adduced at the trial from which the trier of fact could find that police had obtained a search warrant for a designated two-story dwelling house in Baltimore City based on probable cause to believe that the narcotics laws were there being violated, with particular reference to the second floor rear bedroom; that the police forcibly entered the dwelling, ascended immediately to the second floor rear bedroom, and there found Robert Johnson and Hazel Magbee, lawful occupants of the dwelling, together with appellant; that the room was exceptionally small, with barely enough room for a bed; that appellant was sitting on the bed, watching television, and that on the floor, approximately a foot from him, a bag containing five grams of heroin was found by police; that forty-two more bags of narcotics were recovered from a coat in the closet in the room; that appellant had fresh needle marks in his arms, as did Johnson and Magbee; and that appellant told the officer that he had used drugs while on the premises.

Appellant contends that he was a mere visitor to the premises, had no proprietary interest therein, or in the drugs, and that there was no evidence that he had any drugs within his possession or control. He further contends that the needle marks on his arms indicated, at most, that he was a drug addict, which is not a crime; and that because he was not named in the search warrant, he could not be arrested unless observed actually participating in a crime.

Appellant was not charged with being a drug addict, but instead with possessing and controlling narcotics. See Murray v. State, 236 Md. 375. That such possession and control need not be immediate and direct, but may be constructive, is well settled. Henson v. State, 236 Md. 518, 525. The fact that appellant had fresh needle marks in his arm when police entered the room, and admitted taking drugs while on the premises, together with his close proximity to the narcotics when apprehended, leads us to conclude that the trial judge was not clearly erroneous in finding appellant guilty of the offenses charged. See Hill v. State, 237 Md. 630; Williams v. State, 231 Md. 83; Gault v. State, 231 Md. 78; Peachie v. State, 203 Md. 239; Stewart v. State, 1 Md. App. 309. The fact that the appellant was a visitor to the premises, and not one of the occupants, does not, under the circumstances of this case, insulate him from application of the rule that evidence need not be positively connected with the accused or the crime committed in order to be admissible; it is admissible where there is a probability of its connection with the accused or the crime. See Woodell v. State, 2 Md. App. 433, 436. Nor does the fact that appellant was not named in the search warrant aid his defense. The police were lawfully on the premises under the search warrant and had probable cause to arrest appellant for the felony of possession and control of narcotics. See Salmon v. State, 2 Md. App. 513.

We conclude, therefore, that appellant’s conviction was amply supported by the evidence.

      . The convictions of Johnson and Magbee were sustained by this court on appeal. See Johnson v. State, 2 Md. App. 300.


text:
    ROLAND T. WHITE v. STATE OF MARYLAND
    [No. 102,
    September Term, 1967.]

      Decided February 15, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.

      William H. Meserole, Jr., for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A.

      Marshall, Jr., State’s Attorney for Prince George’s County, and Benjamin Wolmer, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

Roland T. White, the appellant, complains of a conviction for unnatural and perverted sexual practices on Charles Thomas Spriggs and on Frederick Lee Spriggs in a jury trial in the Circuit Court for Prince George’s County.

It appears that on the night of March 24, 1966, White, who had been drinking, went to the home of his friends, the Spriggs family, where he was a regular visitor and had often spent the night. White, that night, slept downstairs in a big chair while Mr. and Mrs. Spriggs also slept downstairs although they had a bed on the second floor. The Spriggs’ children slept upstairs. Two of the Spriggs shared one bedroom—Charles, age 10, and Phillip shared one bed. Frederick, age 8, shared a second bedroom with his sister.

Both Charles and Frederick testified that during the night White committed unnatural sexual practice upon them. Frederick was told by White after the completion of the unnatural act not to inform anyone of what had occurred. Mrs. Spriggs learned of the incident from her son, Charles, after she had questioned him concerning any possible reason why White had been unusually attentive to the childern by purchasing them many gifts. After she talked with her husband Friday evening, a warrant was obtained on Saturday, March 26, and White was arrested the same day.

White testified that he had something to drink before arriving at the Spriggs’ home, and the first thing he recalled after retiring for the night was a request by Mrs. Spriggs to bring her a glass of water the following morning. He was forty-one years of age, married but separated from his family. He was regularly employed working on the highways by Prince George’s County. He regularly sent Fifty Dollars ($50.00) every two weeks for the support of his family. For two years immediately prior to the incidents involved in these proceedings, he maintained a home of his own and visited with the Spriggs family frequently and helped with the chores around the house. For three years prior to establishing his own home he had been a regular resident of the Spriggs household. The written report of a psychiatrist was filed in the proceedings; the psychiatrist testified on White’s behalf that he was a chronic alcoholic, suffered from syphilis and some seven years before had spent a short time at the Crownsville State Hospital, a mental institution. The psychiatrist furthér testified that White had poor judgment and when he was drunk he had no judgment at all. He further stated his opinion that at the time White “didn’t know what he was doing and could not have formed an intent.” Neither in the written report nor in oral testimony did the psychiatrist state that White did not know right from wrong nor that he failed to understand the nature and consequences of his act as applied to himself. From a colloquy between court and counsel it appears that counsel deliberately refrained from asking the crucial question although he declined to withdraw his plea of insanity.

White first contends that the trial court abused its discretion in receiving the testimony of the two young boys. The record shows that the boys were examined carefully by the State’s Attorney, defense counsel and the court with regard to their capacity to testify,- both stated unequivocally that they knew what it was to tell the truth and to tell a lie; and that they would be punished if they told a lie. White concedes that under Saldiveri v. State, 217 Md. 412, 419, 143 A. 2d 70, 74 and under Horsey v. State, 225 Md. 80, 169 A. 2d 457, 458 a child may testify within the discretion of the court. He alleges, however, that certain inconsistencies in the testimony show an abuse of this discretion. The inconsistencies pointed to the differences between the children’s testimony and that of other persons on details not important to the proceedings. There were no inconsistencies in their testimony concerning the important details of the incidents described and we see no merit in the contention. See Bell v. State, 2 Md. App. 471.

As a subsidiary point, White claims that it was error for the trial judge to fail to instruct the jury that the children’s testimony should be viewed in light of their tender age. No such instruction was requested under Maryland Rule 756(f). Although we are permitted to review a plain error under 756(g) we do not think, under the circumstances of this case, that this was such an error.

White alleges error in the denial of his motion for a judgment of acquittal, pointing out again various minor differences in testimony of the several witnesses on matters not directly relevant to the charge. The story of each boy as to the essential facts was clear and unequivocal. We have repeatedly held that the testimony of the victim, if believed, is sufficient to support a verdict, Britton v. State, 2 Md. App. 285, 234 A. 2d 274, Hutchinson v. State, 1 Md. App. 362, 230 A. 2d 352. The victim in an unnatural sex case is not an accomplice, Gregoire v. State, 211 Md. 514, 128 A. 2d 243 and his testimony need not be corroborated. In addition, he alleges that under Bell v. U. S., 185 F. 2d 302 (4th Cir. 1951) certiorari denied, 71 S. Ct. 492, 340 U. S. 930, 95 L. Ed. 671 the fact that the psychiatrist’s statement concerning intent was before the jury and that there was no contrary evidence his verdict of acquittal should have been granted because of lack of intent. This completely overlooks the fact that in addition to the evidence showing that the defendant deliberately committed the acts there was also evidence that he had admonished one of the boys, Frederick, not to tell on him. Assuming, without deciding, that a specific intent to commit the act was required, we think this evidence was sufficient to make the issue a jury question.

White complains of the instructions of the court concerning the verdicts and criminal intent. Since there was no objection to the charge, for reasons stated above we will decline to consider them. Fie further contends that the court erred in refusing his request for an instruction that the burden of proof was on the state to prove sanity of the accused beyond a reasonable doubt. Under a number of recent cases decided by the Court of Appeals of Maryland and by this court, it is now well established every man is presumed sane but that if the accused produces sufficient evidence to raise a question in the minds of reasonable men, the state is required to prove the sanity beyond a reasonable doubt, but if the evidence of the accused does not rebut the presumption of sanity it is a matter for the court to decide and no jury issue is presented. See Jenkins v. State, 238 Md. 451, 209 A. 2d 616, Fowler v. State, 237 Md. 508, 206 A. 2d 802, Bradford v. State, 234 Md. 505, 200 A. 2d 150, McCracken v. State, 2 Md. App. 716, 237 A. 2d 87, Dubs v. State, 2 Md. App. 524, 235 A. 2d 764, Bergin v. State, 1 Md. App. 74, 227 A. 2d 357. Although the rule has since been changed by statute, at the time of this trial the test of insanity was that the accused, either at the time of the trial or at the time of the offense, did not know the difference between right and wrong, and did not understand the nature and consequences of his acts as applied to himself, Dubs v. State, supra. It is apparent from the foregoing statement of facts that the trial judge quite properly determined that no jury issue was presented and removed the matter from the consideration of the jury. Fowler v. State, supra.

Finally White contends that the trial court committed error in refusing to permit him to prove that the prosecuting witnesses had killed a dog. On cross-examination of one of the prosecuting witnesses, White inquired about the dog incident which was denied by the witness. When the witnesses’ mother was on the witness stand the trial judge refused to permit her to be asked about the incident. In Rau v. State, 133 Md. 613, 105 A. 867, and in Giles v. State, 229 Md. 370, 183 A. 2d 359 appeal dism. 83 S. Ct. 1102, 372 U. S. 767, 10 L. Ed. 2d 137, the Court of Appeals of Maryland laid down the rule that impeachment on collateral matters would not be permitted where the effect was to show specific acts of misconduct. For an excellent summary of the Maryland Law in this respect see Giles v. Maryland, 386 U. S. 66, 87 S. Ct. 793. We seC no error.

Judgments affirmed.

      . As to trials begun after June 1, 1967, Laws of Md. 1967 Chapt. 790, codified in Code, Art. 59, Sec. 7-15.


text:
    RONALD EUGENE HOWARD v. STATE OF MARYLAND
    [No. 56,
    Initial Term, 1967.]

      Decided February 16, 1968.

    The cause was argued before Anderson, Morton, Orth, and Thompson, JJ.

      Louis Peregoff for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F.

      Moylwn, Jr., State’s Attorney for Baltimore City, and John H. Lewin, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The Appellant, Ronald Eugene Howard, was convicted of assault with intent to rob by Judge J. Gilbert Prendergast, sitting without a jury, in the Criminal Court of Baltimore. On February 17, 1966, he was sentenced to serve not more than six years in the Maryland Correctional Institution. Howard entered an appeal, pro• se, on March 4, 1966, and, on March 22, 1966, counsel was appointed to represent him in this appeal. Appellant’s brief was initially due to be filed on June 15, 1966. At the request of his court-appointed counsel, the time for filing the brief was successively extended through numerous stipulations with the State until January 25, 1967. Notwithstanding these numerous extensions, no brief was ever filed and the State thereafter moved to dismiss the appeal. A copy of the motion was sent to the Appellant who filed an answer, pro se, in opposition thereto. This Court denied the State’s Motion to dismiss and appointed another attorney to act on behalf of the Appellant in this appeal.

The Appellant’s newly appointed counsel contends that the Appellant “was deprived of due process of law under the State and Federal Constitutions because of failure of the State to diligently process his appeal and hearing in the Appellate Court.” He apparently argues that the failure of court-appointed counsel to file a brief constitutes a failure on the part of the State to diligently process the appeal and that this, in effect, amounted to a denial of a speedy trial or a denial of due process.

While the conduct of the Appellant’s original counsel, unexplained, seems unjustified, we do not see how, on the record before us, his conduct could be chargeable to the State. Hence, we see no denial of due process and we know of no authority to support the contention that the delayed appeal may constitute a denial of a speedy trial in the Constitutional sense.

The Appellant’s contention that the failure to give him a lie detector test which he was willing to take was prejudicial error is without merit. As stated by the Court of Appeals of Maryland in Hyde v. Warden, 235 Md. 641, 645, such failure “involves no violation of any constitutional right of which we are aware.”

The Appellant’s contention that his trial counsel was incompetent is not properly before us. Md. Rule 1085; Sherrod v. State, 1 Md. App. 443, 440.

Judgment affirmed.


text:
    THELMA LOUISE FORD v. STATE OF MARYLAND
    [No. 202,
    Initial Term, 1967.]

      Decided February 16, 1968.

    The cause was argued before Anderson, Morton, Orth, and Thompson, JJ.

      Alan M. Resnick and R. Roland Brockmeyer for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F- Moyian, Jr., State’s Attorney for Baltimore City, and Frank A. De-Costa, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The Appellant, Thelma Louise Ford, was convicted of assault with intent to murder her husband, by Judge J. Gilbert Prendergast, sitting without a jury, in the Criminal Court of Baltimore and after a Motion for a New Trial had been denied, sentenced to serve not more than six years in the Maryland Correctional Institution for Women.

The husband testified that early in the evening of May 5, 1966, he and his wife had an argument in their home over her former boyfriend. He then left the house and upon his return about 9 :00 P.M., she remonstrated with him concerning his accusations and, thereupon, picked up a gun from the top of a dresser and shot him twice—one bullet entering his left arm and one his neck. He ran to the front door and when it would not open, he broke a window pane and jumped out into the str eet.

The wife testified that when her husband returned to the house at 9:00 P.M. he started arguing about the former boyfriend again, began beating her, tore her nightgown, then pulled out a gun and threatened to kill her and the children. She managed to wrestle the gun from him and even though she shot him he continued to beat her whereupon she laid the gun on the dresser and ran out the back door.

The police arrived about 9:30 P.M., saw the husband lying on the sidewalk in a pool of blood; saw the broken window and then entered the house. The Appellant, who was described by a police officer as crying, upset and wearing a nightgown which was torn, told him that she had shot her husband and showed him the gun on the dresser. The officer observed a trail of blood leading from the bedroom to the front door, then over a sofa and out through the broken window to the street where the husband was lying.

The officer testified that the Appellant’s mother arrived shortly after he got there. He was asked on cross examination by Appellant’s counsel what the Appellant had told her mother about the shooting in his presence. The trial court ruled that such a statement by the Appellant was not a part of the res gestae, and, therefore, not admissible. In this appeal, it is contended that the trial court erred in not permitting this testimony.

In Reckard v. State, 2 Md. App. 312, this Court stated (at p. 316):

“* * * Whether a declaration is a part of the res gestae depends upon whether the declaration represented the facts talking through the party or whether the party was talking about the facts, since res gestae comprehends a situation which presents an occurrence sufficient to produce a spontaneous and instinctive reaction under such circumstances as to show a lack of forethought or deliberate design on the part of the declarant.
“To constitute res gestae an utterance need not in all strictness be contemporaneous, in the sense of simultaneous, with the principle act; it may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated by meditation.”

Measured by this standard, we cannot say that the trial judge was in error in excluding the officer’s testimony concerning the Appellant’s statement to the mother made in his presence. When the mother arrived on the scene, the Appellant had already advised the police that she had shot her husband. Thus, the statement to her mother, given in the presence of the police officer, was the second narration of the circumstances surrounding the shooting. We cannot say, therefore, that the statement was not “dissipated by meditation.” Thus, it was properly excluded.

In any event, the contention would seem to be moot since later on in the cross examination of the officer he was asked by Appellant’s counsel:

“Q. Besides being worried about her children, when her mother came in, what did she say about the shooting of her husband ?
A. I don’t recall.”

■ In addition, the mother was called to the stand on behalf of the Appellant and permitted to relate what she had been told by the Appellant regarding the shooting.

The Appellant also contends that there was no legally sufficient evidence to sustain the conviction. We disagree.

The trial judge was under no obligation to believe the Appellant’s version of the shooting, Logan v. State 1 Md. App. 213; and he was free !to accept that of the victim. The function of this Court in reviewing the legal sufficiency of the evidence in a non-jury trial is to determine whether the record shows any relevant evidence and proper inferences therefrom upon which the trial judge could properly find the accused guilty. McFadden v. State, 1 Md. App. 511, 517. The record before us shows ample evidence to sustain the conviction.