text:
    JAMES LeROY TYLER v. STATE OF MARYLAND
    [No. 381B,
    September Term, 1967.]

      Decided September 19, 1968.

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

      Leonard R. Goldstein for appellant.

      Thomas N. Biddison, Jr., 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.
   Thompson, J.,

delivered the opinion of the Court.

James LeRoy Tyler, the appellant, appeals a conviction for robbery with a deadly weapon in a case tried before a jury in the Circuit Court for Prince George’s County. He was sentenced to a term of ten years.

Rosemary Jackson testified that she was employed by High’s Dairy Store in Suitland, Maryland on June 27, 1967, and that when she and a fellow employee, John Edward Ginger, started to close the store at about 11:00 P.M. Tyler, armed with an automatic pistol, entered the store and demanded money; that he took some money from the cash register in the front of the store, ordered Ginger to the rear where she was located and demanded they produce the balance of the money that was in the store. His request was complied with after the witness requested Ginger to give him the money. Tyler took and carried away the total sum of $175.

The indictment under which Tyler was tried contained seven counts: (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) larceny and (7) receiving stolen goods. After the State’s case was concluded and in order to clarify the issues for the jury the State’s Attorney entered a nolle prosequi as to all except the first and sixth counts of the indictment. The court granted a motion to acquit as to the sixth count on the basis that the ownership of the stolen goods was not proven as required by Sippio v. State, 227 Md. 449, 177 A. 2d 261. The jury convicted under count one (robbery with a deadly weapon). Tyler first contends that since the counts on which a nolle prosequi were entered and the count on which the court granted a motion to acquit constituted lesser offenses which were necessarily part of the larger one of robbery, his conviction of robbery was improper because it, by reason of merger, constituted double jeopardy or res judicata. He relies on Johnson v. State, 238 Md. 528, 209 A. 2d 765 and Price v. State, 3 Md. App. 155, 238 A. 2d 275.

We considered, and rejected, this identical contention with reference to the counts on which a nolle prosequi was entered after the trial began in Holtz v. State, 1 Md. App. 358, 230 A. 2d 117. We held that where the State’s Attorney takes this action to clarify the issues for the jury and a conviction of the greater crime follows at the same trial, double jeopardy and res judicata do not apply. We look to the substance of what occurred and not to mere form.

In Price v. State, supra, we applied the doctrine of merger to avoid multiple convictions at the same trial. The same rule does not apply where there is an acquittal of the lesser crime and a conviction of a greater crime at the same trial, or conversely. Gee v. State, 2 Md. App. 61, 233 A. 2d 336. Johnson v. State, supra, makes clear that the doctrine applies to inconsistent verdicts of trial judges only where “the appellate court could have no confidence in the judgment of conviction when the judge, by his acquittal of the defendant of one crime appeared to have rejected the only evidence that would have supported his conviction of another.” (209 A. 2d 773)

In the present case the trial judge made clear that his acquittal of the larceny charge was based solely on the lack of proof of ownership sufficient to support that charge. Proof of ownership is not required to support a robbery charge as we shall discuss in the next paragraph. There is no reason to lack confidence in the action of the trial judge in the present case. The proof of ownership was clearly insufficient to support the charge of larceny, but was quite adequate to support the charge of robbery.

Secondly, Tyler contends that his motion for acquittal of the robbery should have been granted, since the indictment alleged that the goods of which John Edward Ginger was robbed, belonged to Capitol Milk Producers Co-operative, Inc. and the ownership as alleged was not established. We considered and rejected similar contentions in McMillan v. State, 3 Md. App. 699, 240 A. 2d 765 and in Harrison v. State, 3 Md. App. 148, 238 A. 2d 153, 155 in which we said:

“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, 115 A. 596, 19 A. L. R. 167 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, 156 A. 2d 436. See also Hadder v. State, 238 Md. 341, 209 A. 2d 70; Hackley v. State, 237 Md. 566, 207 A. 2d 475; Flannigan v. State, 232 Md. 13, 191 A. 2d 591. 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 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 evidence here showed that Ginger was an employee of the store with custody of the money and that it was he who handed the money over to the robber. No more is required; the contention is without merit.

Tyler’s third contention is that since he did not have an attorney at the line-up, his identification at the trial was tainted and therefore not admissible. He relies on United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. This objection was raised below prior to the identification by the witness, Rosemary Jackson, and a hearing on the issue was conducted out of the presence of the jury. She testified that on July 18, 1967, some three weeks after the robbery, police officers showed her pictures of seven Negro males, from which she picked Tyler as the robber. In a line-up conducted the next day she again identified Tyler as the robber. She observed him on October 5, 1967 in custody of the Deputy Sheriff on which date the trial was originally scheduled. She observed him in court again on October 11, 1967, the trial date, and again positively identified him as the robber. She also testified that during the robbery, Tyler stood within two feet of her in good lighting and that her courtroom identification was based upon her observation of him the night of the robbery saying specifically :

“Q. Miss Jackson, is your identification of Mr. Tyler based upon anything other than your observation of him on the night of the robbery ?
“A. No, it is just that he was the guy that came into the store and then I looked at the pictures and he was in the picture, the same guy, and then when I looked at the line-up I studied the line-up very closely and he was the same guy in the line-up. That is all I can say.
“Q. Is he the same guy here today ?
“A. Yes, he is the same guy here today.”

The witness further testified:

“A. Well, he just asked me to look at these photographs, because he had an idea who this person was. And so I looked at the photographs and I picked out the one that was the one that was in the store that looked like him.
“Q. Is that what you told Northcutt, that he looked like him ?
“A. Yes, I said I believe and I am pretty sure that was the one in the store. And I told him if I could see him, you know, in person, I could tell, you know, give him a sure.
“Q. Didn’t you actually say to Northcutt that this looked more like him than any of the others, but you weren’t sure ?
“A. Well, I said it looked more like him than any of the others, yes.
“Q. But you weren’t sure?
“A. No, I told him I wasn’t sure until I could see his height and build and everything like this and more about his face.
“MR. DePAUL: Could the Court indulge me just a moment please ?
“BY MR. DePAUL:
“Q. So then actually at that time there was some doubt in your mind as to whether or not the photograph was that of a man who robbed you ?
“A. Well, actually there wasn’t really no doubt in my mind because he looked like that guy.
“Q. But you didn’t say this is the one, did you ?
“A. No, not then because I wasn’t told—
“Q. As a matter of fact, the language you used it looked more like him than any of the others, meaning it resembled him; is that right ? -
“A. That is right.
“Q. So by that the point is it is fair to say at that time you were not sure it was he?
“A. Yes, say for sure. I wanted to be extra sure and by being extra sure I mean I wanted to see the guy in person and look right face to face to him, like I did in the store, see.”

A police officer testified that when the witness, Jackson, examined the photographs she stated that the picture of Tyler “looks more like the person than any of the others,” and that when he had originally talked with her soon after the robbery she described him as being “a colored male, about 30 years of age, about five foot eight, 150 to 160 pounds, medium to light complected, with a medium mustache, dressed in brown trousers, brown and white short sleeve sport shirt, armed with a small caliber silverplated automatic with dark grips.” On the witness stand Jackson stated that her report to the police was “I said he was probably in his late 30’s, that he was about five-four, something like that, and weighed about 150 or maybe 140 and he had a pair of glasses on and had a brown shirt with yellow and white stripes going down the front of it.” The latter was a more accurate description of Tyler. She also admitted that she had been shown the seven pictures just before entering the courtroom on October 11, 1967 and again picked Tyler as the robber.

Tyler testified that at the line-up Ginger could not identify him and that the police pointed him out to Ginger and to the witness Jackson. This was denied by both Jackson and by the police officer who testified. They both also stated that Ginger did identify Tyler at the line-up. For some reason not disclosed in the record Ginger was unavailable to testify at the trial.

On this testimony the trial judge found that the in-court identification wTas not tainted by any of the pretrial procedures and permitted the witness to identify Tyler as the robber.

In United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 1939, 18 L. Ed. 2d 1149 the Supreme Court laid down the proper test to apply in cases such as this :

“We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U. S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, ‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959). See also Hoffa v. United States, 385 U. S. 293, 309, 87 S. Ct. 408, 17 L. Ed. 2d 374. Application of this test in the present context requires consideration of various factors; for . example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the .alleged act and the lineup identification. It is also rel- . evant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.”

The facts set out above show that the trial judge considered all of the factors mentioned by the Supreme Court and found the in-court identification was not tainted by the improper lineup. We1 see no reason to disturb his ruling.

' In his' brief and in oral argument Tyler argues that the seven pictures were of so dissimilar people as to be unfair and that the line-up was composed of people so dissimilar as to be unfair. The trial judge found contrary to these contentions and we have examined the seven pictures and the picture of the line-up and quite agree with the trial judge. With reference to the police practice of showing pictures of suspects to victims of crime see Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U. S. 293, 301-302, 87 S. Ct. 1967, 1972-1973, and with decisions of other courts on the question of identification by photograph.”

Applying this test we see no error. Compare Rath v. State, 3 Md. App. 721, 240 A. 2d 777.

Finally, Tyler objects to the failure of the court to instruct the jury that it was essential that the state prove the ownership of the money as alleged in the indictment. This issue was disposed of above in our discussion of ownership. An ownership allegation in an indictment for robbery is surplusage.

Judgment affirmed.

      . At oral argument he abandoned a contention that the court erred in admitting evidence concerning the extrajudicial line-up. The abandonment was based upon the fact that evidence of the line-up was presented out of the presence of the jury.


source: Caselaw Access Project

author: Orth, J.,

license: Public Domain

text:
    EUGENE ROZZELL v. STATE OF MARYLAND
    [No. 15,
    September Term, 1968.]

      Decided October 2, 1968.

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

      John D. Hackett and Edward J. Angeletti for appellant.

      Alfred J. O’F err all, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and John II. Lewin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

On 19 November 1966 about 1:00 A.M. Officer John M. Worsham, a Baltimore City policeman, responded to a call that a prowler was in the dwelling house at 532 N. Gilmor Street. He was admitted to the premises by the tenant of the first floor apartment. “I heard someone run down the staircase, a loud crash * * * I continued to hear somebody running through a hall. And I went in pursuit up the staircase. At the time I observed a door to a second floor apartment, the rear floor apartment, broken open * * * The door jamb and all was just broken out, like somebody had run full force into it. At this time I run back through the hall, straight through, which I heard in to the rear of this apartment a scuffling noise, and run back in wdth my flashlight, and as I did I observed the defendant here crouched between the tub, and, the bathtub, it was a sink there and a bathtub next to the window that was in the rear of the apartment.” The officer took the appellant into the hall and observed what appeared to be blood on his hands and a “sort of substance on his clothes * * * The substance I believed to lie blood was w'et, in a wet form.” Worsham turned the appellant over to another officer and “* * * went directly to the third floor from the second floor landing, which I had heard someone run down from. As they entered this door, it is a landing that is sort of a U affair, you go up and you hit another little landing, and then back up into the third floor apartment (the only apartment on the third floor). As I passed I observed a knife, or a part of a butcher knife, it appeared to be, lying on this landing. And I went directly to the third floor. And as I shoved the door to the third floor there, was a little hard opening, then I observed a woman’s body lying there. I pushed the door continually open and stepped in. As we never could really get the door completely open without moving her * * * At the time that I went up there was still hearing a groan from the body * * * and she was bleeding profusely and she was cut so bad that when I shined on her I could see a laceration she had in her back, her organs still moving inward and reflexes from the body.” The body was warm. An ambulance was summoned but by the time it arrived the woman was dead.

The woman was Etta Spencer, age 62 years, height five feet two inches, weight 120 pounds. The diagnosis in the report of the autopsy findings indicated that she had “multiple (36) stab wounds of the neck, chest, back and arms, with tracks penetrating both lungs, thoracic aorta, hyoid bone and 7th cervical vertebra, and with bilateral hemothorax; * * * contusions, abrasions and lacerations of back, chest, abdomen, neck, arms and scalp; * * * incised wounds (2) of right hand; * * * multiple bilateral rib fractures: (2) Left: 2-7 and 11 (b) Right: 2, 3 and 7.” It was the opinion of the Assistant Medical Examiner that “* * * Etta Spencer died of multiple stab wounds of the front and back of the chest. She also had additional multiple stab wounds, bruises, abrasions and lacerations of the neck, chest, abdomen, back, arms and right hand.” The manner of death was “Homicide — Stabbed by assailant.”

The part of a knife seen by the officer was recovered. It “appeared to be a butcher or a boning knife” with a wooden handle and a V groove in the blade. The blade was broken near the tip and the broken part of the blade was found on the -floor by the body. Both parts of the knife, the appellant’s clothes and swabbings of the substance on the appellant’s hands were examined by the Baltimore City Police Department Crime Laboratory. “Human blood from a person having International Group B blood” was found on the blade attached to the handle. Human blood, insufficient in quantity for grouping,-, was found on the appellant’s shirt and on the front of his jacket. Human blood' from- a -person having International Group - O blood was found on the right front pocket of his pants. Each of his hands contained human blood but there was not a sufficient amount on the swabs to group it. The autopsy report showed that the blood of Etta Spencer was type B.

While waiting for the ambulance Officer Worsham examined the apartment in which the victim was found. “To the front and as you would walk through the apartment, as you were heading east on the north side, there was a door open. There was a room which appeared to be a spare room, and it had clothing strewed all over this room. And, in a disarranged manner, very disorderly manner, the articles in this room. Directly in front was a door that was opened, which would be due east, through this hallway, a door that was open and it had keys in the lock. Behind it there was a chair in a propped, sort of a propped position, that I had to shove aside myself to get through =:< * * [A]s I went into the bedroom I observed the bed on my left, which would be north, and on the bed there was a telephone which the receiver was on the bed covered by two pillow’s, and the base of the telephone and the other was lying on the floor, this was to the stretch cord. There was blood on the bed, the bed in a disarranged manner. * * * I went to a window that was open in the center, there was three windows facing east in the building, the window in the center had blood on the window frame. The sill had blood there * * * The dresser drawers had blood on the front of same, the dresser drawers in this room, there was on the table, a little end table, there was a can of beer, Pabst Blue Ribbon beer, which was still cool in nature, as you felt it, that was there, on there. Then I proceeded out of this room back through the hallway, and I observed all the way down the hallway * * * blood on the hall, on the floor, on the wall, on the walls, as though there had been some sort of a struggle and somebody that had rolled along this wall, it appeared, all the way to the rear of the building of this third floor apartment. And as I did, there directly ahead of this hall, as you come out of the hall, you come into an open, would be like a foyer affair, directly ahead was a little bathroom. * * * There was blood in the bathroom and there was also a screw driver found in the hall as I come back through, and there was blood on the bathroom door, and also on the floor, which appeared as if somebody may have rolled against it and bled as they went in.” There was no blood on the kitchen floor. There were two windows in the kitchen, at the rear of the building, and from one of the windows “there was .a wiring like chicken wire, a quarter inch wire, mesh wire that had been pulled loose from this one window, the pane of glass was broken out on the lower left, and there was blood on this glass and on the frame.” There was “what appeared to be blood” on a water heater by the window where “* * * someone had put their hand or arm on the water heater and smeared across the top.” Examination of the premises and articles therein by Crime Laboratory personnel were negative as to fingerprints, “no suitable fingerprints” being found.

The appellant, age 15 years, was charged with the murder of Etta Spencer by an indictment filed 22 December 1966. Counsel was appointed to represent him and at arraignment on 6 January 1967 written pleas of not guilty, not guilty by reason of insanity at the time of the commission of the offense and not guilty by reason of insanity “at this time” were filed. By order of court the same day he was transferred to Clifton T. Perkins State Hospital to be examined and evaluated as to his responsibility “at the time of the alleged commission of the offense” and “as to his mental competency and ability to assist in his own defense.” The conclusion set forth in the report of this examination, filed 17 February, was that the appellant was sane at the time of the alleged offense and competent to stand trial. On 21 March, upon petition by defense counsel, the court ordered the examination of the appellant by a private psychiatrist, Dr. James E. Smith, II. As the examination of the appellant by the staff of Clifton T. Perkins was made prior to 1 June 1967, the effective date of Chapter 709, Acts of 1967, which prescribed new tests for competency to stand trial and for responsibility for criminal conduct, the evaluation of him was under the test enunciated in M’Naghtens Case, 8 Eng. Rep. 718 (1843), then applied in this State. See Bergin v. State, 1 Md. App. 74. Therefore by order of court of 14 July 1967, it was ordered that he be examined by the Department of Mental Hygiene to determine his competency to stand trial and his sanity at the time of the alleged offense in accordance with the provisions of Chapter 709, codified in Md. Code (1968 Repl. Vol.) as Art. 59, §§ 7-12. The issue of his competency to stand trial was heard on 23 October 1967 and it was the finding of the court that he was competent to stand trial. The case was tried on 1 and 2 November in the Criminal Court of Baltimore before Judge Anselm Sodaro, presiding without a jury. The verdicts of the court were that the appellant was sane at the time of the commission of the crime — “I find that at the time of the commission of the crime he was not suffering from any mental disease or defect; and that he did have substantial capacity to appreciate the criminalities of his conduct, and to conform his conduct to the requirements of the law” — and that he was guilty of murder in the first degree. A motion for a new trial was made and denied on 7 November and the appellant was sentenced to imprisonment for the balance of his natural life. On 8 November he was committed to Patuxent Institution for determination of possible defective delinquency.

On appeal from the judgment the import of the first two questions presented goes to the finding of the trial court that the appellant was competent to- stand trial and to its verdict that the appellant was sane at the time of the commission of the offense. He contends that the court erred in its finding as to competency to stand trial and in its verdict of sanity at the time of the commission of the offense.

COMPETENCY TO STAND TRIAL

In Strawderman v. State, 4 Md. App. 689, we discussed the provisions of Chapter 709. We stated that the test for competency of an accused to stand trial is “whether such person is unable to understand the nature and object of the proceedings against him or to assist in his defense” and we found that the procedure was that the lower court, when the issue was before it, shall make such determination “upon testimony and evidence presented on the record.” See Code, supra, Art. 59, § 7. The lower court here followed this procedure. It had before it and considered the testimony and report of the private psychiatrist who examined the appellant, the report of a psychologist who at the time he examined the appellant was the chief clinical psychologist at Clifton T. Perkins State Hospital, the complete medical records of Clifton T. Perkins State Hospital pertaining to the appellant, the complete file of the Juvenile Court of Baltimore City on the appellant, the complete records of Boys Village and the Victor Cullen Forestry Camp with regard to the appellant, the testimony of the assistant director of Juvenile Probation of Baltimore City, the testimony of a case worker of the Victor Cullen School, the testimony of a social worker at Boys Village (all produced by the appellant) and the testimony of the psychiatrist at Clifton T. Perkins who examined the appellant pursuant to the order of 14 July 1967 (produced by the State). With this testimony and evidence before it the lower court held its decision sub curia until the next day, stating, “I will spend the balance of my time until tomorrow, but most of it, I suppose, in the study and the evaluation of these reports and all the testimony that has been offered.” The lower court applied the testimony and evidence to the test for competency to stand trial:

“I have reviewed and carefully considered all of the testimony, including the exhibits which were offered at the hearing, in connection with the determination of competency of the defendant Eugene Rozzell to stand trial. And I have given particular attention to the testimony of Dr. James E. Smith, the second, the psychiatrist who expressed the opinion that he had serious- doubts as to the defendant’s competency to stand trial. As opposed to this evidence there was testimony offered by Dr. James A. Addison, psychiatrist affiliated with the Clifton T. Perkins State Hospital, where the defendant has been confined since August 4, 1967, on the order of Court to examine, evaluate and determine the responsibility of the defendant for the alleged commission of the offense with which he has been charged. And as to his mental competency and ability to assist in his own defense.
Dr. Addison’s expert opinion, which was supported by five other physicians attached to the hospital staff, was clear and unequivocal, that after considerable observation of the defendant’s behavior at the hospital, clinical examination of the accused, as well as after a careful conference of the hospital staff, that the defendant, pursuant to Article 59, Section 7 of the Annotated Code of Maryland, was competent to stand trial; and that he was able to understand the nature and object of the proceedings against him, and to assist in his defense.
The Court is compelled by this latter persuasive testimony, and is of the conclusion, and so find the defendant is mentally competent to stand trial; and, does have the ability to assist in his own defense, notwithstanding his low intelligence quotient as reported by Mr. R. P. Oropollo, psychologist attached to the hospital staff.”

In Strawderman v. State, supra, we said, with regard to competency to stand trial, that the lower court, in whom the determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceedings against him and to assist in his defense. In the instant case there was direct expert evidence and other credible evidence from which a rational inference could be drawn sufficient for the lower court to find beyond a reasonable doubt that the appellant was competent to stand trial. Therefore its judgment on the evidence was not clearly erroneous. Md. Rules, 1086. That there may have been evidence to the contrary did not compel the lower court to reach a different conclusion, for the weight of the evidence is a matter for the trier of facts. McRae v. State, 3 Md. App. 388. We find no error in the ruling that the appellant was competent to stand trial.

RESPONSIBILITY POR CRIMINAL CONDUCT

The test of responsibility for criminal conduct is clearly set forth in Chapter 709, Acts of 1967, codified in Code, supra, Art. 59, §9 (a) :

“A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to' the requirements of law. As used in this section, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

In Strawderman v. State, supra, we enunciated the rule which is here applicable:

“(1) a man is presumed to have been responsible for criminal conduct and sane at the time of such conduct until, after the filing of a proper plea, there is adduced proof that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental disease or defect (‘mental disease or defect’ do not include an abnormality manifested only by repeated or otherwise anti-social conduct) sufficient to raise a doubt as to his sanity as defined in the minds of reasonable men, and (2) when there has been offered proof of insanity so defined sufficient to overcome the initial presumption of sanity of the accused the State must prove sanity, as well as the other elements of the offense, charged beyond a reasonable doubt.”

On the issue of the sanity of the appellant at the time of the commission of the alleged offense, the defense produced the testimony of the former chief clinical psychologist of Clifton T. Perkins and his report (his diagnosis was that the appellant was “socio-pathic personality, dis-socio type, chronic brain syndrome;” a Wechsler Intelligence Scale examination showed an intelligence quotient of 65 verbal, 44 performance and 51 full scale indicating intellectual functioning to be within the moderately defective range of intelligence; he could not determine that the appellant had psychosis or mental disease) ; the testimony of the private psychiatrist (his conclusion was that the appellant lacked “substantial capacity to appreciate the criminality and consequences of his behavoir and that he also has substantial incapacity to conform his behavior to the requirements of law;” the conclusion was “based on the appellant’s mental defect and his mental disease in the form of a severe character disorder”) ; and, it appears, the complete file pertaining to the appellant from Clifton T. Perkins. The lower court found that there had been offered proof of insanity sufficient to overcome the initial presumption of sanity and required the State to offer evidence of sanity. The State produced Dr. James A. Addison of the staff of Clifton T. Perkins. He testified that an examination and evaluation of the appellant had been made at the Hospital and that it was his opinion and the unanimous opinion of the staff that under the test prescribed by Code, supra, Art. 59, § 9 that the appellant was responsible at the time of the alleged offense — that “he did not have a mental illness causing him to lack a substantial capacity to appreciate the criminality of his conduct and to conform to the requirements of law.”

At the conclusion of all the evidence the lower court, noting that it had carefully considered all the medical testimony in the case, including the exhibits which were offered in evidence, and remarking that it “obviously * * * was confronted with a conflict in the expert testimony,” announced its findings:

“I find that the weight of persuasive expert testimony compels the Court to find beyond a reasonable doubt and to a moral certainty that the defendant was responsible for his criminal conduct, and was sane at the time of the commission of this crime. I find that at the time of the commission of the crime he was not suffering from any mental disease or defect; and that he did have substantial capacity to appreciate the criminalities of his conduct, and to conform his conduct to the requirements of the law. I also find that he is sane now.”

We think that there was evidence before the lower court sufficient for it to find beyond a reasonable doubt that the appellant was sane at the time of the commission of the alleged offense. Thus its judgment on the evidence was not clearly erroneous. Md. Rules, 1086. On appeal the argument of the appellant in claiming that the court erred is directed toward both the determination that he was competent to stand trial and the finding that he was sane at the time of the commission of the alleged offense. He urges that the private psychiatrist was better qualified by experience and education than the psychiatrist from Clifton T. Perkins. He characterizes the clinical psychologist as “confusing at best,” the psychiatrist from Clifton T. Perkins as “unbelievably unintelligible,” the private psychiatrist as ambivalent on the insanity definition. He complains of the “paucity of time” spent by all psychiatrists in interviewing the appellant. He makes the bald assertion that a “psychiatric staff conference * * * in effect rubberstamps the findings of their colleagues.” But these matters, whatever their value, go at best to the weight of the evidence and the credibility of the witnesses, which are for the trier of facts.

The appellant complains that this State, “by statute has no provision for the determination of mental retardation in a criminal case” and asked, “Can a mental retardate be held responsible for his criminal acts ?” It is correct that the statutory provisions for confinement to an institution by reason of mental retardation are not applicable to responsibility for criminal conduct. But assuming, without deciding, that “mental retardation” is encompassed within the terms “mental disease or defect,” we note that the appellant was examined by a clinical psychologist and that information as to his intellectual deficiency was before the examining psychiatrists and the lower court.

We find no error in the determination of the lower court that the appellant was sane at the time of the commission of the alleged offense.

TUB SUBBICIBNCY OB THB BVIDBNCB

The third and last question presented is whether the evidence was sufficient to sustain the conviction.

The appellant concedes that the corpus delicti was proved. He does not contend that the homicide was not murder in the first degree. He urges, however, that the evidence was not sufficient to prove the criminal agency of the appellant. He argues, in effect, that the State failed to prove his criminal agency to an absolute or mathematical certainty, but this is not required. See Lambert v. State, 193 Md. 551. The circumstances under which the appellant was apprehended on the premises where the crime was committed, evidence indicating that the stabbing had occurred immediately prior to the appellant’s apprehension, the finding of the part of the knife on the landing and the broken tip of its blade near the body of the victim, the presence of wet, fresh blood on the hands of the appellant and blood stains on his shirt and jacket, the presence of blood on the knife blade of the same blood group as that of the victim — this evidence and rational inferences therefrom were legally sufficient for the lower court fairly to be convinced beyond a reasonable doubt that the appellant committed the murder. Eley v. State, 4 Md. App. 230. Thus we cannot say that the judgment of the court on the evidence was clearly erroneous and may not be set aside. Md. Rules, 1086.

Judgment affirmed.

      . According to the expert witness about 40% of the population have B type blood and 40% have O type blood.

      . The questions were phrased: “1. Did not the Court err in finding Appellant sane?” and “3. Can a mental retardate be held responsible for his criminal acts?”

      . By § 3 of Chapter 709 its provisions were made applicable to all cases tried or scheduled for trial on and after 1 June 1967.

      . According to the witness the terms now used are “borderline mildly defective, moderately defective and severely defective” to indicate intellectual functioning; another classification of deficiency is educable and trainable.

      . He also states in his brief that “there was no evidence in the case showing physical test to determine the existence of organic brain damage.” We note that the private psychiatrist, called by him, said that among the reports from Clifton T. Perkins State Hospital was a report of an electro-encephalogram.

      . It would appear that the substance of the appellant’s argument amounts to an attack on psychiatry in general and at least some of those practicing it. In his brief the appellant quotes from Contemporary Criminal Hygiene, Oakridge Press, 1946; page 13; asking “Could Lukos (sic) have been right when he said: ‘To hell with all psychiatry. You have brains, gentlemen of the jury. Be your own psychiatrist. Apply your own common sense.’ ” The quote appears in the work referred to in Chapter One, entitled, “Random Thoughts on the Attitude of the Legal Profession toward Psychiatry” by Edwin J. Lucas, Executive Director, Society for the Prevention of Crime. Lucas ascribes the quote to a member of the New York Bar, fulminating against two psychiatrists who, in a murder trial, offered diametrically opposed views concerning the “insanity” of his client.

      . The appellant states that, “in Maryland, one must be found to be ‘idiot’ before he is classed as mentally retarded,” citing Art. 59, § 31 of the Code. But Chapter 414, Acts of 1966, among other substitutions, substituted “mentally retarded” for “idiotic” and “mental retardation” for “idiocy”.

      . See Md. Code (1968 Repl. Vol.) Art. 59, § 31.

      . We think it clear that the evidence herein summarized supported a verdict that the homicide was murder in the first degree, both as wilful, deliberate and premediated, Md. Code (1967 Repl. Vol.) Art. 27, § 407 and as committed in an attempt to perpetrate a burglary, § 410.


text:
    JAMES LAWRENCE JONES v. STATE OF MARYLAND
    [No. 22,
    September Term, 1968.]

      Decided October 2, 1968.

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

      Howard J. Goren for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Bwrch, Attorney General, Samuel A. Green, Jr., State's Attorney for Baltimore County, and Charles B. Poos, Assistant State's Attorney for Baltimore County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was convicted of breaking a storehouse and stealing goods of the value of $5 and upwards at a court trial in the Circuit Court for Baltimore County and sentenced to imprisonment for a term of 6 years.

On appeal from the judgment six questions are presented on his behalf by his attorney, five of which go to the sufficiency of the evidence to sustain the conviction (disctissed herein under three sub-headings) and the other of which concerns the admission of testimony of a witness produced by the State, and four questions are presented sua sponte.

The corpus delicti of the crime was proved by the testimony of the owner of a sporting goods business and the testimony of Officer William R. Balk of the Baltimore County Police Bureau. The owner testified that the storehouse of the business, located in Baltimore County, had been closed and secured on 26 November 1966, a Saturday. The next day, about 10:30 A.M., he stopped by the premises and observed that a panel in a large overhead door of the storehouse had been removed and that a large glass display case in the storehouse had been forcibly entered. Seventeen pistols of a total value of $1400 had been stolen therefrom. One of the pistols was a Colt official police .38 caliber, serial number 903434, wholesale value $52, fair market value $75 or $78 which the State produced and offered in evidence for identification purposes upon the identification of it by the witness as a pistol stolen from the storehouse. Officer Balk, responding to a call, arrived at the storehouse about 10:33 A.M. He said that the entry to the building was made by drilling a hole in one of the wooden panels of the overhead door and by sawing out the entire panel, about two feet by three feet in size. Tools, including a brace and bit, a two and a half foot pinch bar, a twelve inch pinch bar, a compass saw, hack saw blades, two pry-type instruments — one a rasp type and the other a punch type, were found in the building. The tools were admitted in evidence.

Officer Raymond McGuirk of the Baltimore City Police Department, testified that he was on duty about 9:15 P.M. on 17 December 1966 in the 2400 block of Hollins Ferry Road when he “heard a weapon discharged three times.” He went to the 2400 block of Annor Court to investigate and saw the appellant holding a revolver. The appellant threw the revolver on the ground when he saw the officer. The officer arrested him and recovered the revolver. The revolver was the .38 caliber Colt, serial number 903434 which had been offered in evidence for identification purposes and upon identification by the officer as the weapon he had recovered, was admitted in evidence over objection. No more than 10 seconds elapsed between the time the officer heard the shots and the time he saw the revolver in the hand of the appellant.

The appellant, testifying in his own behalf, at one point said he had possession of the gun, that he was present when it was discharged and that he knew who discharged it but did not know the name of the person although “I know him when I see him.” He did not know what happened to the gun after it was fired. “The police come around the corner, and I was the closest one to them, and they snatched me.” Later in his testimony he denied that he had the gun, denied throwing it away when the police approached, denied knowing anything- about the breaking of the storehouse — “I didn’t even know how to get to Towson” — and alleged that it was not McGuirk but another officer who “grabbed” him. He admitted to a prior criminal record — “I know it makes me vulnerable to take the stand because I got a record.”

THE SUFFICIENCY OF THE EVIDENCE

1) The appellant contends that his arrest was illegal, therefore the seizure of the gun was unreasonable and as it was unlawfully seized it was inadmissible in evidence; if the gun was not in evidence against him, the evidence was not sufficient to sustain the conviction. But the legality of the arrest was not material for when evidence is not obtained as a result of an unlawful search or seizure, it is not rendered inadmissible by an illegal arrest. Fisher v. State, 1 Md. App. 505. The evidence was clear that the gun was not obtained by a search of the appellant nor was it seized from him. The arresting officer testified that the appellant discarded the gun before the arrest. One who abandons or discards property cannot complain with effect of the later seizure of such property by the police, or of its use against him in court. Davis v. State, 2 Md. App. 630, 632. The appellant does not contend that it was seized from his actual or constructive possession, denying that he ever had possession.

2) The appellant’s possession of the recently stolen gun was enough to give rise not only to the inference of fact that the possessor was the thief but would also support an inference that as the possessor he was the one who broke into the storehouse as well as the thief. Boggs v. State, 228 Md. 168, 172; Bury v. State, 2 Md. App. 674. The testimony of Officer Mc-Guirk that the gun was in the hand of the appellant was sufficient to show exclusive possession by the appellant. The trial court could properly consider the possession about 3 weeks after it was stolen to have been “recent.” The Court of Appeals and this Court have declined to set a yardstick to measure “recent” but have ruled that what is “recent” depends upon the circumstances in each case. Buts v. State, 221 Md. 68, 77; Musgrove v. State, 1 Md. App. 540, 544. So in Cason v. State, 230 Md. 356, stolen property found in possession of the defendant over 4 months after its theft was deemed “recent”; in Anglin v. State, 1 Md. App. 85, over 6 months; in Gamble v. State, 2 Md. App. 271 about 6 months. The appellant claims that the possession was not “unexplained” but his “explanation” was that the gun was not in his possession, in direct contradiction to the testimony of the officer. The credibility of witnesses is a matter for the trier of facts, David v. State, 1 Md. App. 666, who was not obliged to believe the denial of the appellant, Tillery v. State, 3 Md. App. 142.

3) The identity of the appellant as the criminal agent having been fixed by his guilty possession of the gun, the trial court could properly infer that he broke the storehouse and stole the gun. The inference did not change because nothing more- was shown. There was no credible evidence offered that the theft was committed by someone else so that the appellant would become a receiver of stolen goods. See Jordan v. State, 219 Md. 36.

Nor was it essential to the verdict that the trial court specifically find that the appellant stole all the .goods taken. He was convicted of breaking the storehouse and stealing goods of the value of $5 and upwards. The fair market value of the stolen gun found in his possession was shown to be $75 or $78, proving the offense charged.

The test of the sufficiency of the evidence in a case tried before the court without a jury is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Sadler v. State, 1 Md. App. 383. As the evidence here met this test the finding of the trial court thereon was not clearly erroneous. Md. Rules, 1086.

THE CHALLENGED TESTIMONY

Prior to trial, the appellant moved for discovery under Md. Rule, 728, which motion included a request, pursuant to paragraph a3 of the rule, that the State furnish a list of the names and addresses of the witnesses whom it intended to call to prove its case in chief. No order appears to have been passed by the court on the motion. The State answered, giving the names and addresses of such witnesses, but the list did not contain the name of Officer Raymond McGuirk of the Baltimore City Police Department. The motion had been prepared by the attornéy then representing the appellant and whose appearance had thereafter been stricken. When the case came on for trial the attorney then representing the appellant adopted the motion “as if I had filed it.” The Court said, “So you are aware of both the motion that was filed by other counsel and the response of the State and you’re satisfied with that state of the record?” Defense counsel replied in the affirmative and in answer to a question by the Assistant State’s Attorney as to whether he challenged anything “to the answers to the motion for discovery,” said, “Not as to what’s in the motion, no.” During its case in chief the State called Officer McGuirk and defense counsel objected to his testifying because his name was not listed in the answer to the motion. Colloquy between counsel and the court showed that McGuirk’s name had been disclosed to defense counsel by the State the day before trial by a message to his secretary, telling her “briefly what Officer McGuirk would testify to.” Defense counsel had no opportunity to discuss the matter with the prosecutor until the morning of the trial. The prosecutor told the court that McGuirk’s name had not appeared in the report of the Baltimore County Police and in preparing the case he realized that the officer would be required and had immediately telephoned the office of defense counsel and unable to reach him left the message with his secretary. Defense counsel conceded that he knew prior to trial that the State intended to call McGuirk and that he knew the contents of McGuirk’s testimony “as indicated by the State.” Defense counsel said that he was not asking the court for a continuance but urged that by the State’s failure to list Mc-Guirk as a witness in the answer to the motion, it was forever barred from using him in the case and that he saw no obligation to bring the matter to the attention of the court before the State actually called the witness. Court was recessed to afford the appellant and his counsel an opportunity to “make a judgment whether and, if so, how, prejudice has resulted because of the time lapse between the date when the witness’s name was failed to be included in the State’s answer to discover}- procedures and yesterday’s date when the disclosure occurred.” The court offered a reasonable time for the making of such judgment by the appellant and if the judgment was that the appellant was prejudiced a further reasonable time “for the purpose of making such investigative procedures, if any are desired, looking toward the elimination of the damaging effect of the proposed witness.” After consultation with the appellant, his counsel requested the case be postponed until the following Monday and the request was granted (the request was made on Wednesday, 27 September 1967 at 2:48 P.M.). Court reconvened on 2 October at 10:00 A.M., at which time the trial was continued. The State called McGuirk and he testified over “the same objection we made last week.” The record does not disclose any evidence offered or proffered by the appellant with regard to prejudice to him. In his brief on appeal the appellant cites no authority in support of his contention that the lower court erred in permitting the challenged witness to testify. Md. Rule 728 provides no sanction for the failure to include a name in the list of witnesses furnished by the State nor is there a statute providing one. “The main objectives of Rule 728 are to assist the defendant in preparing his defense, and to protect him from surprise.” Mayson v. State, 238 Md. 283, 287. In the circumstances here we see no violation of these main objectives. The appellant concedes that he was not surprised at the trial by the calling of McGuirk. Nor was he preju-’ diced in his defense by the failure to include the name in the answer to the motion. It was thereafter furnished him before trial, he made no motion for a postponement of the trial, a continuance of the trial was granted him and we think it apparent from the disposition of the court as shown by the record that a further continuance would have been granted to prepare his defense upon proper representation bjr him. The appellant does not spell out or suggest actual prejudice and we see none. See Cropper v. State, 233 Md. 384; Delcher v. State, 161 Md. 475. Justice is not the private preserve of the criminal defendant; it also serves the public. The raison d’etre of criminal justice is the determination by legal means of the guilt or innocence of one who, cloaked with the presumption of innocence, stands accused of an offense against the state as the representative of the public. In the circumstances here its ends would be subverted if we were to preclude this determination by construing Rule 728 as urged by the appellant. We find no error in the overruling by the trial court of the objection to receiving the testimony of the challenged witness.

THE CONTENTIONS RAISED SUA SPONTE

The contentions raised sua sponte are without merit. The first with regard to Officer McGuirk being permitted to testify has been resolved herein. The second concerns the weight of the evidence, which is a matter for the trier of facts. Dunlap v. State, 1 Md. App. 444. The appellant’s third contention is that his conviction was improper because “the officer who brought charges against him and on whose sworn testimony he was held for the Grand Jury was not present at his trial.” The point was not raised and decided below and is not properly before us. Md. Rules, 1085. In any event, the record does not disclose this allegation to be factually correct, hut assuming that it is, we know of no requirement that witnesses before a grand jury be present at the trial of a defendant or that they testify at the trial. Had the appellant desired the testimony of the officer to whom he refers, he was entirely free to call him. The appellant lastly contends that he was given a 6 year sentence “on and because of a written report of a so-called polygraph expert after taking (submitting to) a lie detector test that consisted of 10 questions which is not basis enough to determine truthfulness or no.” This apparently refers to a matter which occurred in the penalty stage and not the guilt stage of the proceedings. The verdict was rendered on 2 October 1967 and the imposition of sentence was deferred pending a probation report. Sentence wTas imposed on 4 December. At that time defense counsel noted for the record that after the verdict was rendered the court “gave the defendant an opportunity to take a polygraph test, which he voluntarily consented to do.” Defense counsel knew the results of the test and had seen a presentence probation report and said, “I don’t think I can add anything to the report or to the results of the polygraph test.” Given an opportunity to speak before sentence was imposed, the appellant merely asserted that he did not break in the place. The sentence was within the maximum authorized by Md. Code, (1967 Repl. Vol.) Art. 27, § 33. We see nothing in the record that leads us to believe that the sentence imposed was other than a just one based on proper considerations. Gee v. State, 2 Md. App. 61; Miller v. State, 1 Md. App. 653. Compare Baker v. State, 3 Md. App. 251.

Judgment affirmed.

      . Officer McGuirk testified that the appellant was subsequently charged in Baltimore City. The appellant testified that he had been “in jail for this gun before” on a sentence imposed by a magistrate —“3 months in jail and a hundred dollars fine.” The record does not disclose the offense of which the appellant was convicted with regard thereto.

      . Thus we need not decide the legality of the arrest. But a peace officer may make a valid arrest without a warrant where he has probable cause to believe that a misdemeanor has been committed in his presence or view and that the arrestee is the misdemeanant. Robinson v. State, 4 Md. App. 515, 523. “Presence” is a word of art, denoting that the commission of a misdemeanor is perceptible to the officer’s senses, whether they be visual, auditory or olfactory. Salmon v. State, 2 Md. App. 513, 522. Article 19, § 96 of the Baltimore City Code proscribes the misdemeanor of firing or discharge of any gun, pistol or firearm within Baltimore City, and Md. Code (1967 Repl. Vol.) Art. 27, § 36(a) makes it a misdemeanor to carry a deadly weapon openly with intent to injure any person in an unlawful manner.

      . McGuirk’s name was not endorsed on the indictment as a witness.
      Md. Rule 717 provides that when an indictment is filed, the names of the witnesses on whose evidence it was based shall be endorsed thereon. The record does not disclose whether McGuirk testified before the Grand fury which returned the indictment against the appellant. However, the point was not raised and in any event Rule 717 further provides that the failure to so endorse the names shall not affect the validity or sufficiency of the indictment, or the admissibility of other evidence, but the court on motion by the defendant, shall direct the names to be so endorsed, or otherwise furnished to the defendant, and may grant such continuance or postponement of the case as justice may require.


text:
    ROBERT LEE THOMPSON v. STATE OF MARYLAND
    [No. 24,
    September Term, 1968.]

      Decided October 2, 1968.

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

      James R. White for appellant.

      Beritard L. Silbert, Assistant Attorney General, with whom were .Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and John Henry Lew-in, Jr., Assistcmt State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Robert Lee Thompson, the appellant, age — undisclosed in the record, home — Roaring River, North Carolina, single — “only family I got is the one that I was adopted to,” testified at his trial before the court in the Criminal Court of Baltimore that he had been first convicted of a crime in North Carolina in 1958 when he served two years for the offenses of breaking and entering, larceny and receiving. Thereafter he “got locked up for being drunk,” walked away from the work gang and they gave me two years for escape * * * I got locked up, again, for being drunk — the same thing happened * * * They gave me eighteen months for escape that time.” He served thirty-one months in Florida for automobile theft and his most recent arrest was in Delaware — “I was trying to get home, and they got me for soliciting a ride.” He served ten days. On 14 July 1967 about 9:00 A.M. he was released from the prison in New Haven, Delaware. He was given a bus token to Wilmington and the address of the Prisoner’s Aid. At the Prisoner’s Aid he was given $15 and he bought a bus ticket to Baltimore for $2.95. “Then I drank a little bit.” He boarded a bus at 6:55 P.M. He got sick on the bus and left it 10 miles outside of Baltimore. “I caught a ride, and that’s all I remember on that particular day.” About three months later while he was at Clifton T. Perkins State Hospital he recalled the events of the day of 14 July. He remembered that he and another man, who had given him a ride, went into a store and bought a bag of potato chips. He then went back into the store to get cigarettes. The counter in the store had a “little partition” that separated one side of the counter from the other. As the storekeeper “got the cigarettes, I stepped to the end of that partition, and he grabbed me, and I said, ‘What’s wrong with you, you going crazy?’ ” And he says, “You ain’t robbing me.” Then the storekeeper pulled out a cap pistol. “Then I threw up my hands and I said, ‘Friend, if you are going to shoot me, you are going to shoot me in the back.’ Then I walked out of the place.” He denied that he had a knife or that he went in the store with any intention of robbing the storekeeper. He claimed he had a couple of dollars when he went in the store but adriiitted that when he was arrested the police found no money on him. He was right handed “cause I got three fingers missing off my left hand.” His left hand contained only the thumb and index finger. He said he asked a police officer the morning after his arrest how his right arm became scratched — “I had three places on there where it looked like somebody dug their fingernails in my arm” about four inches above the wristbone —and the police officer said “that guy grabbed my arm and scratched me that I tried to rob.” The appellant said that when he went into the store he “had on a shirt, a pair of pants and a pair of boots”; he did not have on a jacket or coat.

Samuel Verstandig, who, the lower court noted for the record, spoke “with a heavy foreign accent”, operated a grocery store at 2146 Aiken Street at the corner of Bonaparte Avenue in Baltimore City. He had been robbed on three prior occasions —“One time a guy came in, put a gun to my head and he took my money last year, Thanksgiving.” On the afternoon of 14 July the appellant came into his store, took a bottle of soda from a dispensing machine and paid for it with 13 pennies. He drank the soda and left. “He was to me looking like he was drunk or under the influence of a narcotic * * * He wasn’t moving straight. He was moving like drunk, or like under the influence of a narcotic. He was moving all over the store.” About 10 minutes later he came back at the same time another man came in — “I don’t know they came together.” Each bought a bag of potato chips, taking them from the display rack. Each paid for his purchase with 10 pennies. The appellant asked Verstandig what time he closed the store. “I told him 1 closing nighttime, I didn’t know exactly the time — I didn’t tell him.” The appellant walked out but in another 5 or 10 minutes returned. “He walk in, he asked me for a pack of cigarettes, same way he wralk — turning, going, walking all around (indicating) * * * There was children around who I served. He ask for cigarettes, I saw him, and I, right away, I ask him what he want. He ask me for a pack of cigarettes — Pall Mall * * * I hand to him the cigarettes and he wTas coming behind the counter * * * the inside from the counter * * * he go behind the counter * * * at the end, on the side from the counter * * * there was some papers he took out, some little papers * * * from the pants pocket (the witness did not know whether it was the right or left pants pocket) * * * He put down the papers, and I asked him, you please give me the money for the cigarettes. He told me to wait on the customers, and I told him I don’t wait on the customers, please give me the thirty-two cents. Then, he, all of a sudden, pulled out a knife * * * from the pocket * * * the left part of the hip.” Verstandig did not remember which hand the appellant used. “Exactly I can’t —I saw the knife. I saw the knife — saw like that (it was the right wrist of the appellant that was scratched) — and I catch him with the hand * * * As soon as I saw the knife like that, I catch him right away. I got no choice — I catch him from the hand * * * his wrist, and I tried to wrestle with him five minutes, and I yelled to my wife, call the police, till I find out— till he give me out the knife. And I took my toy gun, and I say, I going to shoot you, pick up the hands. He pick up the hands, and with the hands up, he walk out from the store. And this time came the police, and I go off after him with one hand the knife and one hand with my toy gun, and I go after him, and the police come over here and I point to him, and the police arrested him.” Verstandig said that during the struggle for the knife he did not say anything to the appellant but the appellant said, “I’m a sick man, let me go, I don’t want to rob you.” He said this when Verstandig “wrestled already — I wrestled the knife from him.” The knife was eight inches long and was admitted in evidence upon identification by Verstandig. When the police arrived the appellant was across the street, walking away from the store. Verstandig did not remember how the appellant was dressed — “I cannot say exactly he got a winter coat or he didn’t have any.” When the appellant came into the store “I saw he keep his hands like that (indicating), like he got a gun or something.” It was noted for the record that the witness indicated his left hand in the left pocket area of his pants.

Only two witnesses testified at the trial, Verstandig for the State and the appellant in his own behalf. The appellant was found guilty of attempted robbery with a deadly weapon and assault. He was sentenced to 15 years on each conviction, the sentence on the assault conviction to run concurrently with the sentence on the attempted robbery conviction.

On appeal from the judgments the appellant contends that the evidence was not sufficient to sustain the convictions, urging that the “pulling” of the knife by the appellant did not show an intent to rob or assault Verstandig, that the testimony of Verstandig was “so vague, uncertain and enigmatical to be entitled to any probative force and that the evidence adduced by the State negated larcenous intent.” We do not agree that the testimony of the State’s witness was not entitled to any probative force. We think it was clear in the essential details. That the witness could not positively assert that the appellant was drunk or under the influence of a narcotic, that he did not recall whether the appellant was wearing a coat and that he could not “exactly” state whether the appellant used his right or left hand to pull the knife (he indicated after extensive cross-examination that it was the left hand but it was clear that he grabbed the hand holding the knife and scratches were on the appellant’s right wrist) do not compel the application of the rule enunciated in Kucharczyk v. State, 235 Md. 334. See Eley v. State, 4 Md. App. 230; Poff v. State, 3 Md. App. 289. These and other matters claimed to show that the testimony of the witness was equivocal, doubtful and enigmatical go at best to the weight of the evidence and do not preclude its consideration with regard to the sufficiency. As the testimony of Yerstandig had probative value the question is whether the evidence before the trial court was sufficient to sustain the convictions. It is firmly established that in reviewing the sufficiency of the evidence in a non-jury case, this Court determines whether the trial court had sufficient evidence or rational inferences therefrom from which it could be fairly convinced beyond a reasonable doubt of the defendant’s guilt, Hutchinson v. State, 1 Md. App. 362; that the weight of the evidence and the credibility of the -witnesses is for the trial court to determine, Gibson v. State, 4 Md. App. 222; and that the findings of fact of the trial court will not be disturbed unless clearly erroneous. Tinglen and Wright v. State, 1 Md. App. 389. We cannot say that it wras not a rational inference from the evidence before the lovTer court in the instant case that the appellant attempted to rob Yerstandig and to assault him. That the appellant entered the store on three occasions within a short period of time, that he inquired when the store closed, that the last time he came in he had no money, that he proceeded into the area affording access to the rear of the counter, that at that time Yerstandig was by the cash register at the end of the counter, that when he was asked to pay for the cigarettes he “all of a sudden pulled out a knife” eight inches long, that Yerstandig was obliged to struggle with him for five minutes before being able to wrest the knife from him, and that he did not attempt to explain why he pulled the knife or why he was carrying it, but merely denied that he had such a weapon, support a finding that he attempted to rob and assault the proprietor. Attempted robbery with a deadly weapon is predicated upon a finding of intent to rob by means of intimidation produced by the use of such weapon, coupled with the apparent ability to execute the implied threat if resistance is offered. See Jackson v. State, 231 Md. 591. That the intended victim reacted in such a way as to frustrate the consummation of a robbery did not preclude the trial court, in the circumstances, from being fairly convinced that the appellant attempted a robbery and had the apparent ability to commit it. See Boone v. State, 2 Md. App. 80, 114. Nor do we believe that the evidence showed that the appellant was so intoxicated as to be incapable of entertaining the specific mental intent or of possessing the mental state requisite to the crime; he is considered criminally responsible as long as he retains control of his mental faculties sufficiently to appreciate what he is doing. Michael v. State, 1 Md. App. 243. We may not usurp the function of the trial court by determining whether we would have come to a different conclusion when there is legally sufficient evidence to warrant its finding. Trout v. State, 3 Md. App. 259; Bury v. State, 2 Md. App. 674. We think that there was such legally sufficient evidence here; therefore the findings of the trial court were not clearly erroneous and we may not set them aside. Md. Rules, 1086.

The appellant contends that in any event the assault conviction merged into the conviction of attempted robbery with a deadly weapon. Under the facts here existing we agree. See Price v. State, 3 Md. App. 155. Compare Davis v. State, 4 Md. App. 492; Tender v. State, 2 Md. App. 692.

Judgment as to attempted robbery with a deadly weapon affirmed; judgment as to■ assault vacated, the conviction thereof merging into the conviction of attempted robbery with a deadly weapon.

      . The criminal record of the appellant was not available at the guilt stage of his trial. The imposition of sentence was deferred and at the penalty stage of the proceedings the court had before it the F. B. I. report. It showed the following convictions in Raleigh, N. C.: 3 October 1958, guilty of housebreaking, larceny and receiving stolen goods, sentence, 2 years; 2 August 1960, guilty of being drunk on the street, sentence, 30 days; 14 October 1960, guilty of public drunkenness, sentence, 30 days; 21 October 1960, guilty of escape, sentence, 90 days; 13 December 3 960, guilty of escape, sentence, 6 months (apparently he again escaped while serving the 90 day sentence); 12 October 1961, guilty of being drunk, sentence, 30 days; 1 November 3 961, guilty of escape, sentence, 12 months. On 16 October 1963 he was found guilty in Miami, Florida of being a vagabond, and given a suspended sentence of 30 days. Four days later he was found guilty in St. Petersburg, Florida of being a rogue and vagabond and a 10 day sentence was suspended on condition he leave town. On 18 February 1964 in Raiford, Florida he was found guilty of larceny of an automobile and sentenced to 3 years. On 6 January 1967 in Jacksonville, Florida he was found guilty of being drunk on the street and disorderly conduct and sentenced to 10 days. In the same city on 38 March 1967 he was convicted of the same offenses and a fine of $30 was imposed. On 5 July 1967 in Wilmington, Delaware he was found guilty of a motor violation (apparently hitchhiking) and sentenced to 10 days.

      . The appellant was indicted on 31 July, arraigned on 8 August and filed a “plea of insanity” on 10 August. On 25 August he was transferred to Clifton T. Perkins State Hospital for examination and evaluation. On 24 October a report of examination dated 20 October was filed. It expressed the opinion of the medical staff that he was competent to stand trial and that at the time of the alleged offense he “did not have a mental disease or defect which could have caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” The evaluation disclosed, however, that he had numerous personality characteristics which enabled him to be classified “among the Sociopathic Personality Disturbances as an Antisocial Reaction with strong schizoid features.” These personality findings did not adversely affect the opinions as to competency and responsibility for criminal conduct. The plea of insanity was withdrawn.

      . The appellant said that he lost the fingers while he was in prison in North Carolina. “I let a guy cut them off * * * with a hoe. I laid them down and let him step on the hoe.”

      . The cash register was four inches from the end of the counter. The appellant said that Verstandig was “up at the cash register, and I was, I would say, about four feet away from him where I stepped in between where the counter was separated * * * I was right there in between the two pieces that was open * * * The cash register was on the other end of the counter.”


author: Per Curiam.

text:
    JAMES REID v. WARDEN, MARYLAND PENITENTIARY
    [30,
    September Term, 1968.]

      Decided October 2, 1968.

    Before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.
   Per Curiam.

The application of James Reid for leave to appeal from an order of Judge Shirley B. Jones, presiding in the Criminal Court of Baltimore, denying relief prayed in a petition under the Uniform Post Conviction Procedure Act is denied for the reasons set forth by Judge Jones in the memorandum accompanying the order.

We note, however, that the test of the inadequacy of counsel is no longer whether the representation was so deficient as to make a farce out of the trial. The rule followed by this Court is that counsel is incompetent when under all the circumstances of the particular case the accused has not been afforded a genuine and effective representation. Green v. War den, 3 Md. App. 266. From the record before us, we find that the applicant was afforded adequate and effective representation.

Application denied.


text:
    HAZEL CASH VIOS v. STATE OF MARYLAND
    [No. 36,
    September Term, 1968.]

      Decided October 2, 1968.

    The cause was submitted to Murptiy, C.J., and Anderson, Orth, and Thompson, JJ.

      Charlton T. Howard, with whom was Norman R. Stone, Jr., on the brief, for appellant.

      William E. Brannon, Assistant Attorney General, with whom wrere Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and David Eaton, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty at a trial by the court in the Criminal Court of Baltimore of using unlawful means to cause an abortion and miscarriage as charged in two counts of an indictment returned against her. She was sentenced to imprisonment for a term of three years and fined $1000 on each conviction, the sentences to run concurrently.

On appeal from the judgments the appellant contends that (I) the evidence was not sufficient to sustain the convictions in that there was no proper proof that the prosecutrix was pregnant and that (II) the court erred in accepting the identification of her by the prosecutrix and “abused its discretion in basing the conviction on the sole testimony of the prosecuting witness as against the testimony of the objective and non-interested defense witnesses.”

I

The fact of pregnancy is an essential .element of the offenses of which the appellant was convicted and must be proved beyond a reasonable doubt. Roeder v. State, 4 Md. App. 705. But we said in Roeder:

“ ‘Pregnancy of the victim may be established by circumstantial evidence. Absolute certainty of pregnancy under a statute making pregnancy an essential element in the offense is not exact; all the law requires is such reasonable certainty as shall silence all reasonable doubt.’ 1, C. J. S., Abortion § 34 at p. 388. The instant statute proscribes any of the enumerated acts upon a pregnant woman ‘at any period of her pregnancy’, thus not limiting such proscription to any particular stage of the pregnancy and thereby dispelling the oft stressed common law prerequisite that the woman be ‘quick with child,’ meaning having felt the child move within her. Therefore, pregnancy and life are simultaneous with the act of conception and any, actual or attempted, interruption with the natural life cycle thereafter stands violative of the instant statute.”

In the instant case the prosecutrix testified, without objection, that she had sexual relations the beginning of July 1967. The latter part of July she “missed her period” and this caused her “to start worrying.” She went to her family doctor early in August, who examined her and performed tests on her as a result of which she learned that she was pregnant. In September she contacted a woman who put her in touch with the appellant who inserted a long, thin piece of wood in her vagina. The appellant told her to take certain pills for six hours and that in about eight hours she would start bleeding. “After I started bleeding, that when it was heavy enough, that I could pull it out and just to go on from there.” She told her to be as active as she possibly could, and “this would help it more.” She started bleeding that night and the next evening about 7 :00 P.M. “it came out * * *. It was a small baby, I guess is what you would call it, because it was perfectly formed * * * You could see it was a baby — it was perfectly formed — • its hands, its feet, and everything you could see.” She continued hemorrhaging and was in pain. She called her doctor the next day and was admitted to Union Memorial Hospital. The hospital record was received in evidence without objection. The diagnosis was septic abortion and the operative note showed that a “D and C” was performed on 18 September 1967. We have no difficulty in determining that the evidence heie showed directly or, at the least, supported a rational inference beyond a reasonable doubt that the prosecutrix was pregnant at the time the means were used upon her to cause a miscarriage and abortion. The evidence being thus legally sufficient, the finding of the trial court thereon was not clearly erroneous. Md. Rules, 1086. The appellant urges on appeal that the hospital report was not properly admitted in evidence, but the point was not raised and decided below and is not properly before us. Md. Rules, 1085.

II

In court, the prosecutrix made a positive identification of the appellant as the person who performed the abortion on her. The identification was made without objection. On cross-examination defense counsel elicited that she had been shown photographs of women by the police while she was in the hospital and from those photographs had picked out that of the appellant. She presumed that they were photographs of women who had been arrested on a charge of abortion in the past. She also said that she had been in the presence of the appellant for some 25 minutes on the day of the crime. It was urged below in argument for judgment of acquittal and it is urged on appeal that the photographic identification procedure tainted the in court identification. But as the identification at trial came into evidence without objection its admissibility cannot now be contested, Md. Rules, 1085, and the fact that the prosecutrix had previously identified a photograph of the appellant, which evidence was elicited by the appellant, goes only to the weight of the identification, a matter for the trier of facts, Crosby v. State, 2 Md. App. 578. The court was not obliged to believe the defense of alibi adduced by the defense, Logan v. State, 1 Md. App. 213, and the identification by the victim was enough to show the criminal agency of the appellant, Gunther v. State, 4 Md. App. 181. In any event we do not find from the record that the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U. S. 377, 88 Sup. Ct. 967, 19 E. Ed. 2d 1247 (1968). The prosecutrix had ample opportunity to observe the features of the appellant when she was in her presence at the time of the crime. See McRae v. State, 3 Md. App. 388.

Judgments affirmed; appellant to pay costs.

      . The appellant was convicted of offenses committed on 15 September 1967 proscribed by Md. Code (1967 Repl. Vol.) Art. 27, § 3. Chapter 470 of the Acts of 1968 repealed § 3. It also repealed and re-enacted with amendments § 145 of Art. 43 and added new §§ 149E, 149F and 149G to that Article under the subtitle “Practitioners of Medicine,” subheading “Abortion.” However by § 4 of Chapter 470 the Act did not take effe: t until 1 July 1968 and by § 3 of said Chapter “nothing in this Act applies to, or affects the prosecution or penalty for, any event or occurrence prior to its effective date.”

      . “Septic abortion” has been defined as termination of pregnancy before the term of viability resulting in infection. See Blacldston’s New Gould Medical Dictionary, Second Edition, and Taber’s Cyclopedic Medical Dictionary. “D and C” is a dialation of the cervix and curretlage of the cavity of the uterus, used as a diagnostic and therapeutic procedure in obstetrics and gynecology. See Blackiston’s, supra; Roeder v. State, supra, note 1.


text:
    FRANKLIN D. HALE v. STATE OF MARYLAND
    [No. 39,
    September Term, 1968.]

      Decided October 2, 1968.

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

      Robert V. Lazzaro for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty at a trial by the court in the Criminal Court of Baltimore of storehouse breaking with intent to steal goods of the value of $100 and upwards and sentenced to imprisonment for a term of 7 years to run concurrently with a sentence he was then serving. On appeal from the judgment he contends that the evidence was not sufficient to sustain his conviction and that his arrest was illegal.

The corpus delicti of the crime was proved by a stipulation that Louis Patti would testify that he was the owner of the storehouse designated in the indictment; that he closed the storehouse about 9:30 P.M. on 14 September 1967; that all the windows and doors were secured; that the inventory therein was in excess of $100; that he was notified to come to the storehouse later that evening and when he did so found that the front door had been forced open; that a safe of the value of $50, containing $2268 had been taken from the premises; and that the safe and money had been subsequently recovered.

Evidence adduced at the tidal showed that Richard Wood, who was in his house about a block from the storehouse, heard a loud noise the evening of 14 September. He went to the door and saw somebody run down the street, get in a white 1959 Chevrolet convertible, double parked directly across from his house, and drive away. A few minutes later he saw the car “parked right at the side door” of the storehouse. The door of the storehouse was ajar and “it was four fellows there, they dropped something into the trunk of the automobile.” They were white men. They closed the trunk, two of them left in the automobile, two of them ran down the street. Although it was nighttime, there was “a big light.” He called the police relating what he had seen and giving a description of the car. He was not able to identify the men nor did he obtain the license number of the car, but he identified a photograph as that of the car he saw.

Officer Ned K. Schleig received a call about 10:42 P.M. on 14 September and arrived at the scene about 30 seconds thereafter. He talked to Wood, who was familiar with the storehouse, checked the building, observed that a safe usually behind a counter was missing and got a description of the car from Wood and learned from Wood that he saw three white men putting something in the trunk, one got in the passenger side of the car which then drove away and two of the men ran. He had stopped a 1959 white Chevrolet convertible about 8:45 P.M. that evening in the vicinity of the storehouse and noted the license number — EW 9188. At that time Hale was driving the car and Skarzinski and Savalino were passengers. He put a description of the car and the license number on the police radio and at 11:00 P.M. received a call that the car had been stopped. Officer Edmund Lubinski, acting on information he had received on the police radio, stopped a 1959 Chevrolet convertible, license No. EW 9188 about 10:42 P.M. at Boston and Aliceanna Streets, approximately 6 blocks from the storehouse. Skarzinski was operating the car, and Hale was in the right front seat, Bona was in the left rear and Savalino in the right rear. They were arrested and the car was searched. A blank starter pistol, a crowbar, a maul wrapped with masking tape and a safe (later identified by the owner of the storehouse as the one taken from his premises) were found in the car. The safe was opened at the police station and found to contain $2268. The records of the Department of Motor Vehicles showed that the automobile was titled in the name of Franklin Delano Hale.

On appeal Hale raises the question of the legality of his arrest, although he states that the question was not raised below. We see from the record, however, that Hale’s attorney made objection to the introduction in evidence of the articles found in the automobile. As the articles seized were properly admissible only if the search by which they were obtained was reasonable, and as the search here would be reasonable only if incident to a legal arrest, the question is properly before us. See Md. Rules, 729c; McCarthy v. State, 2 Md. App. 400; Randolph v. State, 1 Md. App. 441; cf. Gaudio and Bucci v. State, 1 Md. App. 455. While it would have been better had the State offered evidence of the information contained in the police lookout on the issue of probable cause for the arrest when objection was made to the admission of the articles seized, we think that the evidence before the court was sufficient for the court to find that the arrest was legal. The police had knowledge that the storehouse had been broken, that a safe usually on the premises was missing, that four white males were seen at the scene of the breaking putting something in the trunk of a 1959 white Chevrolet convertible, and that a car of this description had been seen earlier that evening bearing license tag No. EW 9188. Minutes after a lookout, including the description of the car and the license number, was placed on the police radio network, the car, in which were four white males, was observed about 6 blocks from the scene of the crime by an officer who had received the lookout. He arrested the occupants of the car, one of whom was the appellant. We think that the arresting officer had probable cause to believe that a felony had been committed and that the arrestees committed it. Robinson v. State, 4 Md. App. 515. The arrest was therefore legal, the search of the car incident thereto was reasonable and the evidence seized was admissible. Watts v. State, 3 Md. App. 454; Dixon v. State, 1 Md. App. 623.

The thrust of the appellant’s argument in contending that the evidence was not sufficient to sustain the conviction is that there was no evidence specifically identifying him as one of those who broke the storehouse and stole the safe. But possession of the safe, recently stolen from the storehouse, was enough to give rise not only to the inference of fact that the possessor was the thief, but would also support an inference that as the possessor the appellant was a principal in the breaking of the storehouse with an intent to steal the safe. Reagan v. State, 2 Md. App. 262, Boggs v. State, 228 Md. 168, 172. Under the circumstances here, the trial court could properly find that the safe in the trunk of the car was in the joint possession of the appellant and the other occupants of the car. This Court was presented with a comparable factual situation in Bury v. State, 2 Md. App. 674, certiorari denied, Court of Appeals of Maryland, 30 April 1968. There was evidence that a storehouse had been broken into, that business machines were stolen therefrom, that three persons were seen at the scene of the breaking and that business machines were placed in the trunk of an automobile. As a result of a radio dispatch a police officer stoj)ped an automobile several hours later bearing the same license number as that seen at the scene of the crime. It was operated by a co-defendant and Bury and another co-defendant were passengers. A search of the car, made without objection, disclosed the business machines in the trunk. Bury was convicted of storehouse breaking. We affirmed the judgment, stating the general rule that the occupants of a car are considered jointly in possession of stolen goods found therein, citing Pointer v. State, 239 Md. 641, Carter v. State, 236 Md. 450, Shipley v. State, 243 Md. 262 and Wright v. State, 222 Md. 242. In the instant case there was evidence showing that the storehouse had been secure at 9:30 P.M. About an hour later four white males were seen at the storehouse putting something in the trunk of a 1959 white Chevrolet convertible. The eyewitness immediately called the police who arrived on the scene in 30 seconds, observed that the storehouse had been broken into and that a safe was missing. He placed a lookout on the police radio and the car, containing four white males, one of whom was the appellant, was stopped six blocks away within a few minutes. The safe, containing $2268, stolen from the storehouse was in the trunk of the car titled in the appellant’s name, and he gave no credible explanation of its presence. We think this evidence was legally sufficient to warrant the finding of the trial court that the appellant was guilty beyond a reasonable doubt of storehouse breaking with intent to steal goods of the value of $100 and upwards. Spencer v. State, 1 Md. App. 264; Md. Rules, 1086. The court was under no obligation to believe the appellant’s testimony that although Skarzinski had paid for the car, it was titled in the appellant’s name to prevent Skarzinski’s wife, who was suing for divorce, from obtaining an interest in it and that, although he had been in the car when the police stopped it about 8 :30 P.M., he went home immediately thereafter and did not get in the car again until minutes before the arrest, at which time, Bona, Savalino and Skarzinski were already in the car. Nor was it obliged to believe the denial of the appellant that he knew anything about the breaking of the storehouse and the stolen safe, his credibility in any event being suspect by a record of prior convictions of crimes. Tillery v. State, 3 Md. Apt). 142.

Judgment affirmed.

      . Joseph D. Savalino, Stanley G. Skarzinski and Anthony F. Bona were also indicted with the appellant on 17 October 1967. Savalino and Bona were tried with the appellant. Each was convicted and each was sentenced to imprisonment for a term of 7 years to run concurrently with the sentence he was then serving. Bona noted an appeal but subsequently withdrew it. Recognizance had been taken as to all four of the accused but bail as to Skarzinski was ordered forfeited on 2 January 1968 and a bench warrant issued on 23 January. On 21 March he surrendered in open court. The record before us does not disclose the disposition of hís case.

      . The lower court sustained an objection to a question as to what information was received on the police radio. While it would have been admissible on the issue of probable cause for the arrest, Viehmeyer v. State, 3 Md. App. 702, Darby v. State, 3 Md. App. 407, that issue had not been raised.

      . The correct citation is Pointer v. State, 238 Md. 23.