text:
    GEORGE THOMAS JORDAN v. STATE OF MARYLAND
    [No. 121,
    September Term, 1968.]

      Decided December 4, 1968.

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

      Leonard R. Goldstein for appellant.

      William B. Braman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and John J. Garrity. Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The questions presented on this appeal relate to the penalty stage of the trial of the appellant in the Circuit Court for Prince George’s County and not to the guilt stage. Two indictments had been returned against the appellant and pleas of not guilty were entered on arraignment. When the case came up for trial before Judge Perry G. Bowen, the appellant represented to the court that he desired to withdraw his plea of not guilty to the 1st count of indictment No. 7506, charging the unlawful possession of a stolen motor vehicle, proscribed by Md. Code, Art. 66El, § 72, and to plead guilty thereto. The court examined him at length, explaining the charge, the burden of the State in proving the offense under a not guilty plea, the effect of a plea of guilty and the maximum sentence that could be imposed. The court then asked, “Is the reason that you desire to plead guilty because you are guilty of this crime and not for any other reason?” The appellant replied, “That’s right.” The court then directed that the plea of guilty be entered. The appellant does not claim that his plea of guilty was not freely and voluntarily made with a full understanding of its nature and effect and of the facts upon which it was founded. We think that the record clearly shows that the plea was freely and intelligently made and that it was properly entered. See Biles, Jr. v. State, 230 Md. 537; Roberts v. Warden, 221 Md. 576; Lowe v. State, 111 Md. 1. The appellant asked to be sentenced immediately but the State requested a presentence investigation. The court said it was reluctant to sentence without such investigation and deferred sentencing pending the report. The court clerk asked if the report was “to come back to” Judge Bowen and Judge Bowen said: “No, it need not come back to me to delay sentence. If necessary it may return to any judge.” No objection, exception or comment was made by the appellant or his counsel to this reply. The appellant requested to be heard. He said: “I don’t care for any presentence” and asked if he could give his reason — “it is a little lengthy.” The court said: “I don’t care if it takes the rest of the day. You are going to be around a long time, I am afraid, so go ahead and have your say.” The court asked the appellant if it would be easier for him to talk if he sat down, saying: “You may sit down or stand up as you please. Just tell me what you want me to know.” The appellant said he was “bad misunderstood. Probably my extensive criminal record and I have defective speech. This criminal record is haunting me and it is rather misleading.” The substance of his remarks was that he felt “under all the circumstances I should be given probation”; he would lose his job, he had payments to make on purchases made on the installment plan, he would lose $32 a day, six days a week if he stayed in jail. The court explained that if he had the record he indicated he would have to serve time in prison but that the presentence investigation might disclose circumstances resulting in a lesser sentence than 5 years. It asked: “Would you like to have five today or would you rather wait * * * in the hopes that you might get three later on?” On this choice the appellant preferred to wait but said he wanted to explain to the court. The court said: “If you get me I will listen to your explanation. I won’t vouch for anyone else.” The docket entries show that the preseutence investigation was ordered the day the plea was entered, 7 February 1968, and that the report was filed in open court on 22 March 1968. On the day the report was filed the appellant came before Judge Roscoe H. Parker for sentencing. The transcript of the sentencing proceedings shows that there was first a discussion at the bench off the record. Then the State told the court that it had received “the file in this case,” and stated that the current case “is nothing compared to his record of homicide. One armed robbery and many other miscellaneous things that take up a few pages.” The State noted that the appellant had “been in and out of Saint Elizabeth’s” and had been in Paiuxent Institution. It recommended that he be transferred to Patuxent for examination and evaluation. Defense counsel said:

“Your Honor, for the first time in my practice I am really at a loss for words. The probation report is quite extensive. The defendant is reading it right now. There is no doubt that he has had quite a few problems with the law over the years and no doubt that he has spent a great many years of his adulthood in incarceration. I submit the matters to Your Plonor’s disposition.”

The court asked if the appellant had anything to say before sentence was imposed. The appellant said, “Yes, Your Honor. I hope this — it caught me completely surprised this morning in open court. I pled guilty before Judge Bowen and he is the one that ordered the presentence investigation. I was looking forward to appearing before him." The court said that any judge could impose sentence, explaining that Judge Bowen “is a nonresident judge of this court and whether he is a resident or non-resident we have a revolving procedure that the judge who takes the plea doesn’t necessarily do the sentencing. Any judge can do this sentencing.” It asked if the appellant had anything in mitigation of the sentence. The appellant said that his not being sentenced by Judge Bowen “caught me completely — you know, surprised. I wonder if it might be possible to put it aside and probably wait until Judge Bowen might appear again.” The court denied “the request for transfer of sentencing to Judge Bowen.” The court started to direct the clerk to enter the sentence when it was interrupted by the appellant asking the court to bear with him. The court said that it had borne with him as far as it was “going to bear on that subject matter” and asked what his next problem was, that it would “be very careful to listen to you, what you say, whatever you say.” In mitigation the appellant said that the court probably noted that he had an “extensive criminal record” and that he had not had time to read the presentence report which probably would not be beneficial “in a way.” The court remarked that it was sure that his counsel had gone over it very carefully and that counsel would make it available to him. The appellant asked for a chance to read it over. The court said, “You have had your opportunity to read it over. You have it right in your hands. You know what your record is. You are stalling this court.” It pointed out that the record was on the second and third pages of the report and directed that the appellant look at it. The appellant said, “I would waive this — I waive this, but what I am trying to get out your Honor, what I am trying to say, which —although I have had an extensive criminal record, as you may see, but now — now my record, Your Honor, is something that happened, you know, in the past.” He then explained that he had never made probation or parole and requested probation, that he was 49 years of age — “I will be up in years now to make me a useful member of society” — that he had a permanent job as a carpenter, that he was a member of a carpenter’s union and had been for 6 years, that after 30 years if he continued in the union he would be eligible for retirement, that he worked steadily and that he kept up his dues although he was presently behind awaiting the outcome of his case. The court said it understood that the appellant wanted to be placed on probation to go back to his trade. The appellant agreed that this was what he wanted because it was “the only chance I probably would have,” that if he was sent to prison he would be out of the union. The State and defense counsel asked to approach the bench but the court said it would proceed to sentence and imposed a sentence of 5 years from 19 January 1968. It ordered that after processing through the Department of Correction he be sent to Patuxent Institution for examination and evaluation as a possible defective delinquent. A timely appeal was filed and the appellant contends :

I The lower court erred in considering the presentence investigation report in imposing sentence without giving him an opportunity to refute it.
II The lower court abused its discretion in not providing him or his counsel an adequate opportunity to make a statement in mitigation and he was denied his constitutional right to counsel when his counsel was not allowed to make proper argument to the court.
III Pie was denied a fair trial by not being sentenced by the judge who accepted the plea.
IV He was denied equal protection of the laws by the court’s consideration of his previous criminal record in sentencing him.

I and II

Md. Rule 761d provides that the presentence investigation report, except the recommendation, shall be subject to inspection by counsel unless the court directs otherwise. Md. Rule 761a provides that before imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment.

In Driver v. State, 201 Md. 25, 31-32, the Court of Appeals said:

“Under the procedure often followed by the courts in this country, the defendant, after he is convicted, is informed by the court that he will be investigated before sentence is imposed, and the court can exercise a broad discretion in the use of sources and types of evidence to assist it in determining the kind and extent of punishment to be imposed within the limits fixed by law. * * * To aid the sentencing judge in exercising this discretion intelligently, the procedural policy of the State encourages him to consider information concerning the convicted person’s reputation, past offenses, health habits, mental and moral propensities, social background and any other matters that a judge ought to have before him in determining the kind of sentence that should be imposed. In such cases, however, any information which might influence his judgment, which has not been received from the defendant himself or has not been given in his presence, should be called to his attention, or to the attention of his counsel, without necessarily disclosing the sources of such information, so .that he may be afforded an opportunity to refute or discredit it. * * * However, the procedure in the sentencing process is not the same as that in the trial process. It is a fundamental principle that a person accused of crime shall not be convicted unless Ire is given reasonable notice of the charge and an opportunity to be heard in his defense and to examine adverse witnesses. But the sentencing judge may consider information, even though obtained outside the courtroom, from persons whom the defendant has not been permitted to confront or cross-examine.'” See Md. Rule 761c authorizing the court to order a presentence investigation.

We see here no violation of these rules of law. The first two contentions are based on factual premises which do not appear to be supported by the record. We cannot say from the record that the appellant was not afforded an Opportunity to refute or discredit the information in the report. Both the appellant and his counsel had the report at the time of sentencing. The court’s remark that it was sure counsel had gone over it very carefully was not disputed. Counsel, referring to the report, submitted the matters to the court’s disposition. The appellant first indicated he had not had time to read the report but when his attention was directed to the pages containing his record said that he “waived this.” Further, although the docket entries show that the report was filed in open court on the day sentence was imposed, it does not show that the report was not available to defense counsel prior thereto or, knowing the report had been ordered about a month and a half before, that he had requested a copy of it or that he be allowed to inspect it and such request had been denied. See Costello v. State, 237 Md. 464. In oral argument counsel said that by the practice in Prince George’s County, a presentence investigation report was not available until the day of the sentencing. If this is correct we think it the better practice that upon proper request of counsel the report should be subject to inspection by counsel a reasonable time in advance of the imposition of sentence, especially if the information in the report is considered by the judge in imposing sentence, but we note that it was held in Costello, at 471, that the court can refuse inspection in the sound exercise of its discretion. The presumption is that the court made proper use of the report and here the presumption is fortified by the record. The instant case is readily distinguishable from Baker v. State, 3 Md. App. 251, where the sentencing judge considered testimony at the trial “between the lines” and filled “in gaps where objections stopped the testimony.”

We feel also that the record discloses that the appellant was afforded an opportunity to make a statement and to present information in mitigation of punishment and that he in fact did so. That the court was not persuaded by the statement does not compel a finding that the opportunity to make it was not adequate. We note also that in Robinson v. Warden, 242 Md. 171, in denying an application for leave to appeal under post conviction procedure where in the petition for relief the applicant alleged a denial of his right to allocution; the Court cited Hill v. United States, 386 U. S. 424. In Hill there was no question but that the sentencing judge, at the time of sentencing, did not afford the convicted defendant an opportunity personally to speak in his own behalf as required by federal criminal rules. The Court of Appeals quoted with approval 386 U. S. at 428:

“The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.”

Nor does the record show that the appellant’s counsel requested an opportunity to make a statement and was denied. The appellant argues that counsel was not permitted to approach the bench “with any statement.” While the State and defense counsel were not given an opportunity to approach the bench immediately prior to the imposition of sentence, the transcript of the proceedings does not show why the request was made and we cannot assume, as does the appellant, that it was to make a statement in mitigation of sentence.

We find no merit in contentions I and II.

III

The contention that the appellant was denied a fair trial by being sentenced by a judge other than the one who accepted his plea of guilty is without merit. The procedure here followed is specifically authorized by Md. Code, Art. 27, § 642. The appellant argues that he was nevertheless prejudiced because the “lengthy statement” he made to the judge who accepted his plea was not considered by the sentencing judge and because he “was visibly shaken by the prospect of being denied his right to be sentenced by Judge Bowen.” But we have found that he was afforded the opportunity to make a statement to the sentencing judge and in fact did so. And we think it clear from the remarks of Judge Bowen, as herein before set out, that the appellant had good reason to suppose that he would be sentenced by another judge. He had no “right” to be sentenced by Judge Bowen and we know of no constitutional right accruing to him that was violated because he was nervous and “visibly shaken” at the time of his sentencing.

IV

It is firmly established that the sentencing judge, exercising a broad discretion, may consider the defendant’s entire background, including prior convictions, in imposing sentence. Costello v. State, supra; Driver v. State, supra; Thomas v. State, 2 Md. App. 645; Miller v. State, 1 Md. App. 653. The appellant urges that by so considering prior convictions he was denied equal protection of the laws. We do not agree. The appellant cites no authority supporting this view and we know of none. Nor do we agree that the defendant’s previous criminal convictions have no probative value with regard to the sentence to lie imposed. The appellant states that the legitimate purposes of punishment are deterrence, public protection, rehabilitation and public justice. We think that all of these are served by a consideration of the convict’s prior criminal record in imposition of sentence. The appellant does not and could not claim that his sentence constituted cruel and unusual punishment. The sentence was within the legal limitation and the record does not indicate that it was dictated by passion, prejudice, ill-will or other than a sense of public duty. Rogers v. State, 4 Md. App. 363; Allen v. State, 2 Md. App. 740. We find no merit in contention IV.

Judgment affirmed.

      . The general principle is that, if the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. Gleaton v. State, 235 Md. 271. However, an allegation that the procedure in the determination of the sentence violated the constitutional right to due process, if supported, is reviewable on appeal as an exception to the general principle. Costello v. State, 237 Md. 464, 469. See Williams v. New York, 337 U. S. 241 (1949).

      . Upon the acceptance of the guilty plea the State requested that a nolle prosequi be entered as to the 2nd count of indictment No. 7506 and as to indictment No. 7700. The lower court directed the clerk to enter a nolle prosequi as to No. 7700 and to note that the State “abandons its right to prosecute” for the offense charged in the 2nd count of No. 7506. The docket entry in Criminal Trials No. 7506 states that the State “abandons prosecution as to the 2nd count.” At the time he pleaded guilty the appellant also withdrew appeals in Criminal Trials Nos. 11,649 and 11,650. The record does not disclose the offense charged in indictment No. 7700 or the nature of the convictions on which appeals were withdrawn.

      . Upon an application for review, the sentence was confirmed without change.

      . Except for the appellant’s past criminal record it appears that the report contained little which he could refute or discredit to his benefit. The first page contained the State’s version and the appellant’s version of the offense but he had pleaded guilty to it which was a conviction of the highest order. The second and third pages set forth the previous record. It showed convictions dating from 1938 and included larceny, receiving stolen goods, robbery, attempted robbery and minor offenses. In 1944 he was charged with murder but was committed to St. Elizabeth’s adjudged of unsound mind. In 1954 the charge of first degree murder was dismissed for insufficient evidence as key witnesses could not then be found. He was released from custody in 1956. In 1958 he was convicted of receiving stolen goods for which he was sentenced to 5 years and thereafter of attempted larceny and larceny and several offenses of operating a motor vehicle on a suspended license for which he was sentenced to imprisonment. However, the appellant admitted to an extensive criminal record. The remainder of the report gave his family background, education, personality traits, employment record, health and financial status.


source: Caselaw Access Project

author: Anderson, J.,

license: Public Domain

text:
    RALPH CARL CARDER, JR. v. STATE OF MARYLAND
    [No. 44,
    September Term, 1967.]

      Decided December 17, 1968.

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

      C. Orman Manaham. for appellant.

      Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Marvin H.

      Anderson, State’s Attorney for Anne Arundel County, and Cornelius b\ Sybert, Jr., State’s Attorney for Howard County, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, Ralph Carl Carder, Jr., was tried in the Circuit Court for Howard County by a jury, Judge (now Chief Judge) James Macgill presiding, for the murder of his infant daughter, Brenda Jane Carder. On February 28, 1964, the jury returned a verdict of guilty of murder in the first degree without capital punishment and appellant was sentenced to life imprisonment in the Maryland Penitentiary. On March 1, 1966, Judge Macgill granted appellant a belated appeal to this Court.

Appellant submits six questions to be decided by this Court on appeal. The}’ are as follows:

1. Did the refusal of the trial court to include in the voir dire certain questions suggested by appellant amount to error ?
2. Were the verbal admissions or confessions made to the witnesses, Mr. Offenbacker and Corporal Greffen, voluntarily made ?
3. Did the principles enunciated in the case of Miranda v. Arizona apply as to the verbal admissions or confession made to the witnesses, Mr. Offenbacker and Corporal Greffen, when on its face the conviction appeared to have become final, when it did not become final through ordinary judicial processes ?
4. Did the oral admissions or confessions of the accused meet the test of voluntariness in view of the appellant’s physical condition at the time of the alleged admissions or confessions ?
5. Did the principles enunciated in the case of Schowgurow v. State apply even though on its face the conviction had become final, when it had not become final through the ordinary judicial processes?
6. Did the trial court err in admitting in evidence photographs concerning the alleged crime ?

The jury sitting in the court below, as trier of the facts, could find from the evidence that on March 14, 1963, the appellant returned from work to his home in Baltimore City and found his young wife, Ruth Naomi Carder, writing a love letter to his cousin, in which was enclosed a check for $5.00. A quarrel ensued and it was agreed that they would take a drive in the family car to discuss the future of their marriage. The appellant owned a high-powered rifle which he used for hunting and protection while working at a filling station. He got the gun, wrapped it in a blanket, and was seen entering the family car with his wife and two small daughters, Brenda Jane and Barbara Sue. After driving for some two hours, he stopped the car in a sparsely inhabited spot in Anne Arundel County off Furnace Road. A discussion ensued between him and his wife during which she demanded the return of the letter he had in his possession. When he refused, she picked up the gun from under the front seat and, according to his testimony, shot him through the chest. Appellant then got possession of the rifle and shot his wife through the head, inflicting a mortal wound. He then shot each of the infant children who were seated in the rear seat of the automobile, inflicting mortal wounds upon each. Following the shooting of the infant children, appellant shot himself through the mouth, taking away a large part of his jawbone.

Some two hours later, at approximately 4:40 p.m., he was discovered near the highway some sixty feet from the automobile by passing motorists, one of whom was the civilian witness, George J. Offenbacker. When he first observed the appellant he was in a kneeling position some 10 to 15 feet off Furnace Road, with his head between his knees. He walked over to appellant, who was then lying on his stomach, and asked him what happened. Appellant stated that he had shot his wife and two children and had then shot himself. The witness walked back to where the car was parked and observed, inside the automobile, appellant’s wife and one child and a coat on the back seat. He observed a rifle lying behind the automobile. He then walked back to the appellant and put a handkerchief on his back where he was bleeding. The State Police had been called and arrived some 3 minutes later. The first to arrive was Trooper Weaver. He examined the appellant and found that a portion of his jawbone had been shot away and that there was also a wound in his back just below his left shoulder blade. He then proceeded some 60 feet back to where the automobile was parked. Upon looking in the car, he observed a white woman in the front seat with the top portion of her head missing. On the back seat were two children, both of whom were dead. He also observed a Winchester rifle lying 15 feet to the rear of the parked car. Appellant muttered that there was a note in his wallet which would explain everything. The letter referred to was in his wallet and was the same letter that his wife was writing to his cousin when appellant returned home to get his work shoes. Corporal Charles E. Greffen, accompanied by Trooper Lawrence, arrived at approximately 4:55 p.m., at which time there were present Trooper AYeaver and George Offenbacker. He observed appellant lying in a dirt road some 30 yards off Furnace Road. He was suffering from a wound to his face and a wound in the left side of his chest. He walked over to appellant and asked him his name, to which he replied his name was Ralph Carder. He asked him if he thought he was going to die and he said, “Yes.” He then asked him “if he shot the people in the car”, to which appellant replied, “Yes.”

Appellant took the stand in his own behalf. He testified that his wife asked for the letter back when he threatened to show it to others. He refused and she threatened to shoot him. He replied, “Shoot and be damned.” She apparently fired the gun, shooting him in the chest. He then got possession of the gun and shot her and afterwards shot himself. He testified that he had no independent recollection of how the two young children were shot.

I

Appellant’s first contention is that the trial court committed error in refusing to propound to the jurors certain questions upon voir dire submitted by appellant.

The trial judge on his own initiative propounded the following questions to the prospective jurors:

(a) “Have you formed or expressed any opinion as to the guilt or innocence of the accused ?
(b) “Do you feel you could render a verdict in this case based on the law and the evidence, and the law and the evidence alone, uninfluenced by anything you may have heard or read about this case ?
(c) “Do you feel that your mind is perfectly free and clear from all prejudice or bias of any kind that might prevent you from rendering a proper verdict ?
(d) “Have you any conscientious scruples against inflicting capital punishment ?”

Counsel for appellant then submitted a list of sixteen proposed questions to be propounded to the prospective jurors. From these sixteen questions, the court propounded the following five:

(1) “Have any members of the panel ever read about the pending criminal case in the newspapers ?
(2) “Have any members of the panel ever heard about the pending criminal case by radio or television ?
(3) “Have any members of the panel discussed or participated in discussions in their home or community regarding the criminal offense alleged by the State to have been committed by Ralph Carder?
(5) “Has any of the immediate family, a relative or close personal friend of any of the members of the jury panel ever been a homicide victim ?
(13) “Are any members of the panel, their immediate family or relatives now or ever been employed by any law enforcement agencies, whether County, Federal or State, including but not limited to the office of the Prosecutor ?”

To each of the above questions, the respective jurors answered in the negative.

The appellant excepted to the refusal of the trial judge to ask the following three questions requested by him from the list of sixteen submitted. These questions were:

(9) “Do the members of the panel understand that if, from the evidence presented, it is shown that at the time of the alleged commission of the act of murder, that Ralph Carder did not know the nature and quality of the act he was doing, or if he did know, that he was not conscious that the act was one which he ought not to do, then the jury is to find that Ralph Carder is not guilty ?
(10) “Do the members of the jury panel understand that Ralph Carder is presumed to be innocent and that the State has the burden to prove beyond any reasonable doubt that Ralph Carder has committed the offense charged in the indictment ?
(11) “Do any members of the jury panel now entertain any prejudice against Ralph Carder by reason of the nature of the crime charged ?”

Appellant cites no authority in support of his contention that there was error on the part of the court in refusing to ask questions nine and ten. Both questions sought to elicit the jury’s understanding of the law and are not proper voir dire questions. McIntyre and Davis v. State, 1 Md. App. 586, 589, 232 A. 2d 279. The purpose of a voir dire examination is to ascertain whether the prospective jurors are free from bias or prejudice and capable of making objective and impartial determinations. Bristow v. State, 242 Md. 283, 288, 289, 219 A. 2d 33; Giles v. State, 229 Md. 370, 378, 379, 183 A. 2d 359; Brown v. State, 220 Md. 29, 36, 150 A. 2d 895; McIntyre and Davis v. State, supra, 589. In McGee v. State, 219 Md. 53, at page 59, the Court of Appeals said: “* * * it has generally been held that there is no abuse of discretion in refusing to ask a juror his opinion of law or how he would act or decide in certain contingencies, or upon a certain state of the evidence.”

Appellant directs his argument to the refusal of the trial court to propound to the prospective jurors question eleven (question three in appellant’s brief) which was as follows: “Do any members of the jury panel now entertain any prejudice against Ralph Carder by reason of the nature of the crime charged?” Here the appellant was charged with the murder of his infant daughter, Brenda Jane, and at the time the exception was noted, appellant contended that it should be ascertained from the panel whether or not such a crime would so shock them that they might be unable to bring in a fair and impartial verdict. In his brief he argues further that since appellant had been indicted for the murder of his wife and two infant children, the evidence produced by the State could readily have influenced the jury in its verdict of conviction.

The appellant was charged in three separate indictments with the murder of his wife and two children, but was only being tried on one indictment charging him with the murder of his eldest daughter, Brenda Jane. In Maryland there is no statute or specific rule prescribing the questions that should be asked a juror on voir dire to determine his or her qualifications but the subject is left largely to the court’s discretion. In the exercise of that discretion the trial judge should adopt the questions to the needs of each case in the effort to secure an impartial jury. McGee v. State; supra; Bryant v. State, 207 Md. 565, 115 A. 2d 502. We are of the opinion that question eleven as proposed by the appellant was amply covered under the questions as propounded to the prospective jurors by the trial judge on his own initiative and in particular question (c), namely: “Do you feel that your mind is perfectly free and clear from all prejudice or bias of any kind that might prevent you from rendering a proper verdict ?” We find that the trial court properly exercised his discretion in declining to propound question eleven as well as questions nine and ten.

II

Appellant’s contentions as set out in questions two, three, and four may be considered together and are so treated in appellant’s brief, since all relate to the voluntariness of the oral admissions or confession made by the appellant to the civilian witness, George Offenbacker, and Corporal Greffen at the scene of the crime.

The appellant contends that his oral admissions or confession made at the scene separately to George Offenbacker, a civilian, and to Corporal Greffen, a member of the State Police, that he killed his wife and minor children were inadmissible because they were involuntary due to the physical condition of the appellant at the time. The appellant was suffering from gunshot wounds to his face and chest. He further argues that because of the granting of his belated appeal the principles enunciated in the case of Miranda v. Arizona, 384 U. S. 436, 16 L.Ed.2d 694, 86 S. Ct. 1602 (1966), should apply as to the requirement of advising the accused of his right to counsel, his right to remain silent, and the other safeguards of the individual therein set forth.

We find no merit in these contentions. Appellant was not in custody when the oral admissions were made to the State’s witnesses, Offenbacker and Greffen. While the burden of proving that a confession is voluntary is upon the State, Kier v. State, 213 Md. 556, 132 A. 2d 494, the voluntariness test does not apply to a civilian witness who was not in any way associated with the State Police and whose only purpose was to lend assistance to the injured appellant. The trial court found the admissions to be voluntary and admitted them in evidence, but before he would admit the admissions made to Corporal Greffen of the State Police, he required the State to prove that no threats, promises or inducements of any kind were held out to the accused. Moreover, the fact that appellant was suffering from gunshot wounds does not of itself render his admissions involuntary. Campbell v. State, 240 Md. 59, 212 A. 2d 747. Here, the lower court found appellant’s admissions were freely and voluntarily given.

The appellant's trial began on February 24, 1964, and therefore, the Miranda advisatorial instructions do not apply. Cunningham v. State, 247 Md. 404, 418, 231 A. 2d 501. The Miranda standards are to be applied only prospectively from June 13, 1966. Johnson v. New Jersey, 384 U. S. 719, 16 L.Ed.2d 882, 86 S. Ct. 1772. Moreover, Judge Macgill refused to admit appellant's confession in evidence made at the hospital on March 23, 1963, since he was without the benefit of counsel at the time it was made.

Ill

Appellant's fifth contention is that the collateral relief in the nature of a belated appeal under the Uniform Post Conviction Procedure Act, instituted and granted after October 11, 1965, brings such an appeal within the non-final test of Schowgurow v. State, 240 Md. 121, 213 A. 2d 475.

This contention was fully discussed in this Court’s opinion in Carder v. Warden, 3 Md. App. 309, 312, 313, 239 A. 2d 143, and was decided adversely to the appellant.

IV

Appellant’s sixth and final contention is that the lower court erred in admitting in evidence photographs concerning the alleged crime, in that they served no relevant purpose and would tend to inflame the minds of the jurors.

The .photographs admitted in evidence were those showing the victim, Brenda Jane Carder, and the crime scene and were offered for the purpose of showing the nature of the wound and the scene of the crime. We find no error in the admission of these photographs. The matter is one within the discretion of the trial court and there is nothing to show any abuse of discretion. Baldwin v. State, 226 Md. 409, 411, 174 A. 2d 57; Clarke v. State, 238 Md. 11, 207 A. 2d 456; Culver v. State, 1 Md. App. 406, 411-12, 230 A. 2d 361; Bowyer v. State, 2 Md. App. 454, 458, 235 A. 2d 317.

Judgment affirmed.

      . See Carder v. Warden, 3 Md. App. 309, 339 A. 3d 143 (1968) for a history of the prior proceedings in the case.


author: Per Curiam.

text:
    WILLIAM JOHNSON v. STATE OF MARYLAND
    [No. 81,
    September Term, 1968.]

      Decided December 18, 1968.

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

      Howard, B. Wallin for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylam, Jr., State’s Attorney for Baltimore City, and C. Allan Herndon, Jr., Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant, William Johnson, was convicted of storehouse breaking with intent to steal goods of the value of one hundred dollars ($100) or more (Md. Code, Art. 27, sec. 32) and sentenced to serve five years.

At approximately 2:20 a.m., on December 16, 1967, the appellant was found in the Purple Heart Thrift Store by the police and a representative of a burglar alarm company who were there in response to the sounding of a silent alarm. The appellant was lying face down in a rear aisle on the first floor of the building. The representative of the alarm company testified that entrance had been gained through a skylight in the roof of the four-story building and that the alarm had been activated by the opening of a door at the bottom of a stairway on the first floor, approximately five feet from where the appellant was found. He also testified that the appellant “claimed he was hurt” and that although he did not smell his breath, he detected no odor of alcohol on the appellant.

The appellant, who described himself as a free-lance commercial photographer, testified that he and his brother had spent the evening in a night club taking photographs of customers “and I decided to drink a little more than usual.” When asked, what happened, he replied: “I got plastered.” He further stated that he left the night club about 2:00 a.m. and “I staggered or tried to make it to my girl friend’s house.” When he arrived at her apartment door “I decided not to go in because it was too late to disturb my girl friend” and “I decided to go home, I believe.” According to the appellant, “the next conscious moment I had was when the policeman picking me up under my arm.” He admitted that the police took from him a screw driver but he asserted that this had been used “that day to fix the refrigerator in my girl friend’s house.”

His half brother took the stand and confirmed that they had been together at the night club and that he left the appellant at the door of an apartment on the ninth floor of an apartment building. When asked about the condition of the appellant during the evening, he replied: “We was both in the same predicament, intoxicated.”

An employee of Veteran Thrift Stores, Inc., testified that the Purple Heart Thrift Store was one of three stores operated by the corporation; that he had been employed by the corporation for six years; that he was the manager of the Purple Heart Thrift Store; that when he arrived at the store the police and burglar alarm representative were there; that he inspected the premises and observed “a skylight in the roof that had been broken open completely * * He checked the inventory and determined that nothing was missing. When asked to give the value of the inventory, he was permitted, over objection, to estimate the value to be three thousand dollars ($3,000).

In this appeal, it is contended that the lower court erred in failing to consider the legal effect of appellant’s intoxication on his capacity to commit the offense. It is argued that an essential element of the offense is the existence of a specific felonious intent and that if the appellant was incapable of forming such intent, because of his intoxication, his conviction cannot be sustained.

It is true that where there is evidence that the accused was intoxicated at the time of the commission of a crime involving the element of intent, the trier of fact should give consideration to the effect of such intoxication upon his ability to formulate the required intent. As stated by this Court in Michael v. State, 1 Md. App. 243, 247:

“Where a particular motive, intent or purpose is an essential element of a crime, drunkenness may be considered in determining whether or not the accused lacked the mental capacity to form the requisite motive, intent, or purpose, and if a sufficient mental incapacity is found to exist drunkenness may constitute a defense to the particular offense charged.”

We went on to say, however, that the burden is on the accused to “persuade the triers of fact that, under the circumstances, he was so intoxicated as to be incapable of entertaining the specific mental intent or of possessing the mental state which is an essential element of the crime for which he is being prosecuted.” Michael, supra, 247.

The record does not support the appellant’s contention that the lower court failed to consider the effect of his intoxication on his capacity to commit the crime. In fact, the issue was specifically raised and extended arguments were presented to the court in support of the appellant’s contention that he was incapable of forming the requisite intent because of his intoxication. It is also clear from the record that the trial judge considered and rejected the appellant’s contention in this regard.

The trial judge was not required to believe the appellant’s assertion that he was so “plastered” that he does not remember entering the building. Logan v. State, 1 Md. App. 213. Being judge of the credibility of the witnesses, Gunther v. State, 4 Md. App. 181, 185; Dunlap v. State, 1 Md. App. 444, 447, he could have found that the asserted failure to recollect was fabricated since the appellant’s admitted conduct just prior to entering the building was that of an individual capable of exercising reasonable judgment. His decision that it was too late to disturb his girl friend and his decision to have his half brother take his camera home could have been viewed by the trial judge as decisions of an individual who was not so drunk as to be incapable of making a rational judgment. Moreover, to get into the building, the appellant had to exercise a certain amount of physical dexterity, for his entrance was made through a skylight on the top of a four-story building; the skylight “had been broken open completely”; he had to jump fifteen feet to a floor below; and he had to traverse three flights of stairs. Also, he was carrying a screw driver which could have been used as an implement to open the skylight. In addition, there was testimony by the alarm company representative that he detected no alcohol on the appellant. Under these circumstances, we find no error in the lower court’s rejection of the appellant’s argument that, because of his intoxication, he was incapable of forming the intent requisite to sustain his conviction.

The appellant also contends that it was error to permit the manager of the Purple Heart Store to testify as to the value of the inventory in the building and that without his testimony the State failed to establish an intent to steal goods of the value of one hundred dollars ($100) or more. He argues that under the evidence produced by the State, the manager was “a mere employee who had not divulged the extent of his duties or area of expertise.” It is true that the State failed to establish the scope of the manager’s duties, responsibilities and authority and thus failed to show that he was familiar with the value of the contents of the building. But this is not necessarily fatal for we are here dealing with the question of the accused’s intent to steal goods of the value of one hundred dollars ($100) or more. Perhaps the most conclusive method of proving that element of the crime is to establish the value of the goods actually stolen. Another method is to establish by appropriate testimony the value of the contents of the building where the breaking occurred. But these are not the sole methods, for it has been consistently held by the Court of Appeals of Maryland that proof of the intention to steal one hundred dollars ($100) or more need not be direct but may be inferred from the circumstances. Pelkner v. State, 218 Md. 300; Shipley v. State, 220 Md. 463; Holtman v. State, 222 Md. 508; McNeil v. State, 227 Md. 298. Here there was evidence from which the trier of facts might have made a rational conclusion regarding the intention of the accused and this is all that is required. As stated by the Court of Appeals of Maryland in Ridley v. State, 228 Md. 281, at page 282:

“The actual intention at the time of the breaking is controlling, not whether any goods of value were found and stolen, and the intention may be inferred from the circumstances.”

In Ridley, the evidence showed that the accused entered a warehouse sometime between 2:30 a.m. and 4:30 a.m. by pushing in a window on the second floor and then ransacking the place, unintentionally setting off a burglar alarm to which the police responded. Although there was no testimony as to the value of the contents of the building, the court sustained the conviction under Md. Code, Art. 27, sec. 32, stating (at page 282) : “The early morning hour of the entering and the ransacking of the drawers were sufficient to support a logical inference that appellant intended to steal everything of value that he could find and carry away.”

The case at bar is not unlike Ridley. Here the evidence of the extraordinary length to which the appellant went to gain entrance to the four-story building occupied by the Purple Heart Store, the setting off of the burglar alarm and the arrival of the police would support a rational inference that the appellant intended to steal everything of value that he could find and carry away from the inventory in the store, and that the execution of his intention was thwarted by the arrival of the police. Under the circumstances, we are of the opinion that the State met its burden of proving that the appellant broke and entered the premises with intention to steal goods of the value of one hundred dollars ($100) or more.

Assuming, without deciding, therefore, that it was error to admit the testimony of the manager as to value, it was harmless error, since there was other evidence from which to infer the appellant’s intention.

Judgment affirmed.


text:
    ALFRED MARK FARMER v. STATE OF MARYLAND
    [No. 90,
    September Term, 1968.]

      Decided, December 18, 1968.

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

      Mark A. Singerman (Norman N. Yankellow on brief) for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Thomas A. Rymer, State’s Attorney for Calvert County, on the brief, for appellee.
   Per Curiam.

Alfred Mark Farmer, the appellant, complains of a conviction for attempted armed robbery in the Circuit Court for Calvert County before Judge Perry G. Bowen, Jr. sitting without a jury. He was sentenced to a term of fifteen years.

There was evidence from which the trial court could have found the following:

About 6:30 p.m., January 4, 1968 Edward George Acton entered a grocery store on Ponds Wood Road and pointed a shotgun, which had tape around it, at Louise Bowen, co-owner of the store. She started to struggle with Acton and called to her husband, Raymond Bowen, who left their living quarters behind the store and entered the store. He disarmed the would be hold up man, at which point a second- man (later identified as Paul Edward Lanham) entered the store wearing a stocking over his head and also armed with a shotgun and said “Hold it.” Mr. and Mrs. Bowen put their hands up and a few seconds later Keith Bowen,' who is the twelve year old son of the Bowens, entered the store with a shotgun. When Bowen told his son to “shoot,” Keith and Lanham fired simultaneously. Lanham then went out of the store, and Acton retrieved his rifle and struck Keith on the head. Bowen again disarmed Acton and Mrs. Bowen called the police. When the police arrived Bowen was holding Acton prisoner and Lanham had escaped. Keith Bowen testified that he fired his gun twice; once when Lanham entered the store and a second time when Lanham re-entered the store. Lanham received two wounds— one in the leg and another in the arm.'

Trooper Jackie L. Cawthorne received information that someone had requested an ambulance at the Fire House. He proceeded to the Fire House and one Richard Lanharn was pointed out to him as the person who had requested the ambulance. Richard Lanharn took Trooper Cawthorne to the home of Thomas Jackson where he found Paul Edward Lanharn, who was suffering from apparent gunshot wounds. Trooper Cawthorne testified that the appellant, Alfred Mark Farmer, was present in the Jackson home.

Trooper Ireland testified that when he arrived at the Jackson home Farmer said that he had been in the company of Acton and Lanharn that afternoon. Farmer stated that he, Lanham and Acton, had left the Jackson home for the purpose of selling his shotgun which he then produced. The gun was taped. In a subsequent written statement Farmer said that when Lanham returned to the car, after having gone into the grocery store, Lanharn stated that “I have been shot to pieces.”

Thomas Jackson testified that Farmer had been staying at his home for approximately five days prior to January 4, 1968 and that Farmer was at home all day. He further testified that on the evening of January 4, 1968 Farmer left the house to go to the store and when he returned Edward George Acton was with him. Acton then asked if he could borrow the Jackson car “to run up the road to see if he could borrow some money.” Jackson consented to lending Acton the car and Farmer agreed to drive because Acton had no license. Approximately fifteen minutes later Farmer returned for his shotgun, saying that Acton knew where he could sell it for twenty dollars. When Farmer returned to the Jackson home, approximately an hour and a half later, he was accompanied by Paul Edward Lanharn, who had suffered gunshot wounds. Farmer brought his shotgun back into the house and took it upstairs.

A search of the front of Jackson’s car revealed a paper bag and a pair of nylon stockings. Three nylon stockings were found in the glove compartment. On the seat of the left rear of the automobile was a “large pool of blood,” and a coffee can containing eight shotgun shells was found on the floor.

Both Edward George Acton and Paul Edward Lanharn plead guilty to attempted armed robbery and both were called as witnesses for Farmer and confirmed that Farmer had driven the Jackson car to the grocery store but both denied discussing the robbery with Farmer. The trial court sustained objections by the witnesses’ counsel, to some of the questions Farmer asked Acton. Farmer did not testify.

Farmer first contends that the trial court committed error in refusing to grant a continuance when at the trial he objected to the testimony of two of the State’s witnesses whose names did not appear on the back of the indictment, and moved that the case be continued because of the absence of the witnesses’ names on the indictment. The contention is without merit.

Maryland Rule 717 provides as follows:

“When an indictment is filed, the names of the witnesses on whose evidence it was based shall be endorsed thereon. Failure so to endorse the names shall not affect the validity or sufficiency of the indictment, or the admissibility of other evidence, but the court, on motion of 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.”

Since the indictment showed the names of all other witnesses as having testified before the Grand Jury, and since there is nothing in the record to indicate that the two witnesses involved did in fact testify before the Grand Jury we cannot say that the trial judge was in error when he refused the continuance. Under the rule itself there is no basis for objecting to the admissibility of the testimony.

Farmer alleges error in that the court sustained objections by counsel for one of the co-defendants, Acton, to certain quesr tions propounded by Farmer’s counsel on the basis that his answers would tend to incriminate the witness in view of other indictments involved in the above transactions, including one for assault with intent to murder. The basis for the contention is that the privilege is personal and must be claimed by the witness personally under oath. Although the witness himself has to personally assert the privilege, the cases show this may be done by his actions in not answering the questions even though he himself did not raise the point of privilege. The witness here adopted the objection of his own counsel by not giving answers to questions to which the trial court sustained objections. Although this point in this precise form seems not to have been presented to Maryland courts, heretofore, we think the result here was indicated in Royal v. State, supra, 204 A. 2d 503 when the Court stated:

“In circumstances where the court is satisfied that the claim has a substantial basis, the mere refusal to testify under a claim of privilege may jusify the upholding of the privilege.”

There is no doubt that in the present case the claim had a substantial basis. Where this is true there is no need to indulge in nice technicalities.

Wigmore, Evidence § 2270 (McNaughton Rev. 1961) has stated the rule as follows:

“The privilege must be claimed personally; however the courts, especially when the witness is a party or when the situation otherwise demands frequently permit counsel for the witness to call the witness’ attention to the privilege or to plead it in his behalf.”

We see no error in the trial judge’s rulings.

Finally, Farmer contends that the evidence was insufficient to support his conviction and that the trial judge’s findings were clearly erroneous within the meaning of Maryland Rule 1085.

The trial judge specifically found that Farmer “knew what was being planned with respect to this store, while he was unwilling to take a gun and beard the owner, he was willing to participate to the extent of providing the gun, providing the transportation and maintaining a lookout in a get-away position on the outside of the store.” We cannot say that his finding was clearly erroneous on the evidence hereinbefore cited.

The trial judge was not obligated to believe the testimony of the witnesses who stated that Farmer went on the trip intending to sell his gun. In view of the quick get-away when one of the co-defendants was shot and the other co-defendant was held prisoner, it would strain the imagination to believe that Farmer was not a full participant in the proceedings. A person who serves as lookout is as guilty as a person who does the actual robbing. Butina v. State, 4 Md. App. 312, 242 A. 2d 819. His presence at the scene of the crime and his flight therefrom are both factors that may be considered in a determination of guilt, see Williams v. State, 3 Md. App. 58, 237 A. 2d 822, Anderson v. State, 3 Md. App. 362, 239 A. 2d 579, Shifflett v. State, 3 Md. App. 550, 240 A. 2d 286 and Coleman v. State, 4 Md. App. 386, 243 A. 2d 24.

Judgment affirmed.

      . The record indicates that this charge had been stetted but this would not necessarily bar a subsequent trial on this charge. Brown v. State, 2 Md. App. 388, 334 A. 3d 788. See discussion in Martel v. State, 331 Md. 394, 157 A. 3d 437.

      . For a brief history of the privilege see Chesapeake Club v. State, 63 Md. 446, 455-58 (1885), Blum v. State, 94 Md. 375, 379-85, 51 A. 26, 28-30 (1902) and also see Boone v. State, 3 Md. App. 11, 237 A. 2d 787, 790-92 (1968).

      . The procedure for claiming the privilege has been set out in Midgett v. State. 223 Md. 282, 164 A. 2d 526, 529-31 (1960) cert. denied 365 U. S. 853, 81 S. Ct. 819, 5 L.Ed.2d 817, Royal v. State, 236 Md. 443, 204 A. 2d 500, 502-503 (1964) and Shifflett v. State, 245 Md. 169, 225 A. 2d 440, 442-43 (1967).

      . The Court of Appeals of Maryland has repeatedly held that “It is the privilege of the witness not of the party”, Roddy v. Finnegan, 43 Md. 490, 502 (1876). Also see Chesapeake Club v. State, supra, Raymond v. State, ex rel Younkins, 195 Md. 126, 72 A. 2d 711, 713 (1950), Adams v. State, 200 Md. 133, 88 A. 2d 556, 561 (1952), Buts v. State, 221 Md. 68, 156 A. 2d 423, 426-27 (1959), Midgett v. State, supra, Forrester v. State, 224 Md. 337, 167 A. 2d 878, 881 (1961), Franklin v. State, 239 Md. 645, 212 A. 2d 279, 281-82 (1965), Boone v. State, supra. Also see Richardson v. State, 103 Md. 112, 63 A. 317 (1906) where the Court allowed the witness to testify over the objection of the defendant; the privilege itself was not discussed. In Chesapeake Club v. State, supra, the Court allowed the defendant to raise the issue on appeal that the ■witness’ assertion of the privilege should have been sustained. However, this point was reversed by Buts v. State, supra; see Midgett v. State, supra.

        . In Royal v. State, supra, the Court stated that a witness should be sworn “because the privilege is not a prohibition of inquiry, but is an option of refusal.” Also see Chesapeake Club v. State, supra, Blum v. State, supra, Raymond v. State ex rel Younkins, supra, Adams v. State, supra, Midgett v. State, supra and Shifflett v. State, supra.

      . For a discussion as to whether the court may inform a witness of the privilege see Stevens v. State, 232 Md. 33, 192 A. 2d 73, 77 (1963) cert. denied, 375 U. S. 886, 84 S. Ct. 160, 11 L.Ed.2d 115, Royal v. State, supra, Fowler v. State, 237 Md. 508, 206 A. 2d 802, 806 (1965), Kitt v. State, 2 Md. App. 306, 234 A. 2d 621, 625 (1967). Also see Gaylord v. State, 2 Md. App. 571, 235 A. 2d 783, 786 (1967), Charles v. State, 4 Md. App. 110, 112, 241 A. 2d 435 (1968).

      . However, this factual situation has arisen before. In Vandegrift v. State, 237 Md. 305, 206 A. 2d 250, 252 (1965) the witness’ attorney objected to the questions asked. The issue raised on appeal did not concern the issue here. In Blum v. State, supra, the Court allowed counsel to object to the introduction of defendant’s books into evidence; however, dictum in the case stated that the privilege “cannot be claimed for him by counsel or by a party.”

      . The Federal Courts have been presented this issue before, see 4 Orfield, Criminal Procedure under the Federal Rules § 26:595 at 127-28. For other jurisdictions see 51 ALR 2d 1178, 1179 n.4, 4 Jones, Evidence § 859 (5th ed. 1958), 3 Wharton, Criminal Evidence § 729 (Anderson Ed. 1955).

      . The trial judge stated that he was sustaining the objections on the basis that the witness might incriminate himself and also on the basis that the witness might commit perjury. While we know of no authority to support the trial judge’s rulings with reference to the perjury fear, there was one adequate basis for the rulings and the fact that the other basis may have been inadequate is of no importance.


author: Thompson, J.,

text:
    RICHARD L. FERRIER v. STATE OF MARYLAND
    [No. 111,
    September Term, 1968.]

      Decided December 18, 1968.

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

      Harper M. Smith for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and Barry Helfand, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Richard R. Ferrier, the appellant, appeals from a conviction for assault and battery in a jury trial in the Circuit Court for Montgomery County, Judge John P. Moore presiding. Ferrier was sentenced to a term of eighteen months in the Maryland House of Correction. On July 18, 1967, about six months after his sentencing, the appellant filed a petition under the Uniform Post Conviction Procedure Act alleging, among other things, that he had been denied the right to note a timely appeal of his conviction. A hearing was held before Judge Joseph M. Mathias on December 14, 1967, and on the 26th of December, 1967 pursuant to the consent of counsel for both the appellant and the state, Judge Mathias granted the appellant a delayed appeal after having found that his attempt to appeal had been delayed by circumstances beyond his control. Ferrier’s sole contention on appeal is that the lower court committed reversible error by admitting into evidence copies of the hospital records of the victim which contained recitals not pathologically germane and irrelevant to the proper diagnosis or treatment of the victim's condition.

There was evidence that on January 2, 1967 about 3 :30 in the morning Raymond E. Branch was at liis home in Silver Spring, Maryland with two friends who shared the residence with him. They had just returned from a New Year’s party and Branch was having a drink with Dallas Keith while the third man, Don Turner, was asleep in a chair. At this time the Ferrier brothers, Richard, Clyde, and George, together with two other men arrived, Branch thought, for the purpose of returning clothing that they had borrowed earlier in the evening from Don Turner. The victim testified that when he answered the front door the appellant hit him in the face and that then, together with the two other Ferrier brothers, severely beat him. The next morning about 10 or 11 Branch went to the hospital where he was treated for his injuries and was discharged about 4 P.M. the same day.

Branch had known the Ferrier brothers for approximately eight months and was more or less friendly with them. Branch, however, had had a fight a week earlier with Clyde Ferrier over a girl and at the New Year’s party the appellant had made reference to Branch’s fight with Clyde. Dallas Keith corroborated Branch’s testimony. The appellant, claiming self defense, testified that when they came to the front door the victim opened the door and began hitting them with a rifle butt, and that the appellant and his brother, George, had wrestled the gun from him. His testimony was supported by his brothers’.

The medical doctor who first saw Branch at the hospital produced the original hospital records together with photostatic copies thereof. He testified that the records and the copies were made in the regular course of business of the hospital and further that it was the regular course of business of the hospital to make Such records and copies. The court examined the records and after deleting some pages admitted the remainder of the copies into evidence.

To support his argument as to the admission of the hospital records the appellant first contends that the copies were not admissible under Md. Code, Art. 35, § 59. The express language of the statute provides for the admission of photostatic or photographic copies if “photostated or photographed in the regular course of business in good faith without intent to defraud.” See State v. Walker, 230 Md. 133, 186 A. 2d 472. There is no merit in the contention.

The appellant further contends that the medical records were not properly authenticated by their custodian. He cites Simco Sales v. Schweigman, 237 Md. 180, 189, 205 A. 2d 245, 249 which approved the admission of records when the records were produced by the custodian, who was not the physician. In the present case the records were produced by the physician who first treated the patient, but who was not the custodian. The physician was, however, familiar with the hospital routine and knew that these records were made in the regular course of business of the hospital and that it was the regular course of business of the hospital to make such records. Under the language of the statute we do not think that more is required. In State v. Walker, supra, the Court of Appeals approved the admission of hospital records based on the statement of the physician who was “in charge at the time.” See also Jones v. State, 205 Md. 528, 109 A. 2d 732.

The appellant further contends that the medical history admitted was not “pathologically germane” to his treatment and therefore under Old v. Cooney Detective Agency, 215 Md. 517, 138 A. 2d 889 and Yellow Cab Co. v. Hicks, 224 Md. 563, 168 A. 2d 501 was not admissible. He points specifically to the statement Branch gave to a hospital employee prior to seeing the doctor:

“Pt states: Was beaten up at home by five men injuring and cutting face. Cut with a knife on back, injured back by kicking him, Not sure whether unconscious.”

In Yellow Cab Co. v. Hicks, supra, the Court discussed this question and affirmed the action of the trial court in deleting from the medical records admitted, a statement that the patient had consulted his lawyer who sent him to a doctor. In Old v. Cooney Detective Agency, supra, the Court discussed the question but avoided making a ruling because there was no objection below. The Court did, however, refer with approval to Scott v. James Gibbons Co., 192 Md. 319, 330, 64 A. 2d 117, 122 which said:

“It is proper for the record to show the patient was hurt in an automobile accident, but the particulars of such accident, contained in a hospital record, should be deleted and not submitted to a jury in a case like this.”

The medical history involved in the present appeal cannot be compared to that in the Yellow Cab case; it is more analogous to the statement that the patient was injured in an automobile accident, and we see no error in its admission. The extra details supplied were minimal and we do not see how they were in any way prejudicial. Furthermore, Branch testified and was subjected to cross-examination. His story at the trial -was similar to that he supplied to the hospital, and varied only as to the number of men who actually hit him. The hospital records were cumulative hearsay and even if there were error in their admission it was not reversible error. Veihmeyer v. State, 3 Md. App. 702, 708, 240 A. 2d 649, Lewis v. State, 2 Md. App. 318, 234 A. 2d 487 and Rodgers v. State, 4 Md. App. 407, 243 A. 2d 28.

Judgment affirmed.

      . The fact that the doctor stated that he was interested in the medical history only a “little bit” does not support the appellant’s argument as contended. On the contrary it shows that there was some medical interest in the statement.


text:
    EARL 10X FITZGERALD v. STATE OF MARYLAND
    [No. 68,
    September Term, 1968.]

      Decided December 27, 1968.

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

      Patrick G. Cullen for appellant.

      H. Edgar Lents, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Robert S. Fertitta, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Appellant, Earl 10X Fitzgerald, was convicted in the Criminal Court of Baltimore by Judge Thomas J. Kenney, sitting without a jury, of assault with intent to murder and common-law assault. He was sentenced to a term of fifteen years for the crime of assault with intent to murder under the jurisdiction of the Department of Correction, and his conviction of common-law assault was stricken. From his conviction of assault with intent to murder, he has appealed to this Court.

Appellant raises three contentions on appeal:

1. That the presiding judge denied the appellant due process of law by failing to declare a mistrial or disqualify himself, sua sponte, upon being assaulted by appellant.
2. That the evidence was insufficient to sustain the conviction of assault with intent to murder.
3. That the appellant was denied due process of law by his unlawful extradition from the State of New York.

From the evidence adduced at the trial, the trier of the facts could find that on March 12, 1964, at approximately midnight, that the prosecuting witness, Milton Cradle, while in a tavern at 1312 Rose Street, Baltimore, Maryland, was shot four times by the appellant.

The witness, Milton Cradle, testified that when he arrived at the tavern he observed the appellant, whom he identified in court, sitting at the bar and engaged him in conversation, as they had known each other for five or six weeks. After having a beer with appellant and talking with him for some fifteen or twenty minutes, they separated and each talked with other patrons. Thereafter the appellant was observed leaving the tavern and returned later that evening with a gun and shot Cradle behind the left ear, the bullet passing through his left cheek. Cradle whirled off the bar stool and observed appellant starting out the door of the tavern with the gun in his hand which he kept firing. Three additional bullets struck Cradle as he tried to use a post in the tavern as protection. Cradle did not lose consciousness and personally phoned the police, and was hospitalized for one month as a result of his injuries. On cross examination Cradle related that during the five week period he knew appellant they saw each other practically daily and they had never quarreled.

Mrs. Elizabeth Wright testified that shortly after midnight on. March 12, 1964, while approaching her home at 1116 Rutland Avenue, Baltimore, she encountered a man, whom she identified in court as the appellant, who said: “Come here, I have a gun,” and she observed a gun 7" or 8" long which he held in his hand. Appellant said: “Do you .hear an ambulance,” and when she responded affirmatively, he said: “I just killed a man.” Mrs. Wright further testified that the appellant informed her that he had been involved in an argument with another man at a bar and that he had killed the other man.

Officer Capp testified that upon his arrival at the scene of the shooting at about 12:02 a.m., he observed Cradle slumped over a table, bleeding from gunshot wounds. Shortly thereafter the victim Cradle was transported to the hospital, and to Officer Capp’s knowledge no weapon was found upon him.

Sergeant Adams testified that he had attended the appellant’s extradition hearing in the Criminal Court of New York City, at which time he had twro warrants for appellant’s arrest, one for the crime of assault with intent to murder, for which he was convicted, and the other for the crime of rape, and that he returned the appellant to Baltimore, Maryland by train.

At the conclusion of the State’s case the appellant’s counsel moved for a judgment of acquittal, which was denied by the court. Thereafter the appellant elected to testify. In his testimony appellant denied having been intoxicated or that he had argued with the victim. He testified that he had left the tavern and that upon his return the shooting occurred. Appellant further testified that the victim Cradle had given him the gun and as he returned the gun to Cradle the gun went off, after which appellant left the tavern. He denied that he knew Cradle had been shot and stated that if he had been shot four times, then somebody else must have shot him.

At the close of all the testimony a motion for judgment of acquittal was renewed, and was again denied, and the appellant was found guilty under the first and second counts of the indictment. Immediately thereafter, at rendition of the verdict, appellant’s attorney explained to him his right to file a motion for a new trial, and if that was denied, he could note an appeal from the verdict. Appellant then asked the judge several questions and while the trial judge was attempting, in great detail, to explain to appellant his rights, appellant became very upset and hurled a chair from -where he was standing at the trial table up on the bench, landing very close to the trial judge. At this point, the court attendants and police grappled with appellant, handcuffed him, and took him out of the courtroom. Whereupon the trial judge stated all further matters would be held sub curia and would be taken up at a later date. He thanked appellant’s counsel at this time for his able representation in a difficult case.

I

Appellant first contends that the trial judge denied appellant due process of law by failing to declare a mistrial or disqualify himself sua sponte upon being assaulted by appellant.

Appellant’s trial was held July 3, 1967, and further proceedings were held sub curia until March 4, 1968, or some eight months later, when the hearing on the motion for a new trial was heard and denied by the same trial judge. The court then imposed a sentence of fifteen years imprisonment under the jurisdiction of the Department of Correction on the assault with intent to murder conviction, accounting from December 26, 1965.

We find no merit to appellant’s first contention. The appellant was represented by experienced and capable counsel at all pertinent stages of the proceedings and his representation merited complimentary comments by the trial judge. The appellant’s trial had ended and he had been found guilty by the lower court prior to the occurrence of the throwing of the chair which took place in the courtroom; only sentencing remained to be imposed. The record clearly establishes that no objection was made to the trial judge continuing to preside over the sentencing nor was a motion made for a mistrial or a request by the appellant that the judge disqualify himself. Therefore, the issue, not having been decided or properly preserved below, is not before us for consideration and this issue may not now be raised on appeal. Culver v. State, 1 Md. App. 406, 417, 230 A. 2d 361; Gaylord v. State, 2 Md. App. 571, 575, 235 A. 2d 783; Tillery v. State, 3 Md. App, 142, 147, 238 A. 2d 125; Maryland Rule 1085. See also Thomas v. United States, 363 F. 2d 849.

However, had the matter been preserved, it, nevertheless, would be without merit. Judge Kenney had no personal interest in the case and there was no reason why he should disqualify himself. His only remaining duty was to hear the motion for a new trial, and in the event that the same was overruled, to impose sentence. Moreover, no contempt charge was instituted or any assault charge prosecuted for the unprovoked attack. We find that since the conviction already having been determined and the obvious exercise of restraint by the trial judge at the sentencing, there was no necessity for the trial judge to declare a mistrial or disqualify himself sua sponte. Moreover, the record indicates that appellant apologized to the judge after he was apprised that the judge about to impose sentence was the same judge at whom he had thrown a chair.

II

Appellant’s second contention is also without merit. From the evidence adduced at the trial, it was established that the appellant shot the victim four times without any apparent provocation or excuse, the first shot being fired from the pistol he held at the victim’s head. “It is difficult to imagine a stronger case, but it may be noted that specific intent to kill is not a necessary ele-ment for a conviction of assault with intent to murder. An in-tent to commit grevious bodily harm is sufficient, McFadden v. State, 2 Md. App. 725, 727, 237 A. 2d 93; Lawrence v. State, 2 Md. App. 736, 738, 237 A. 2d 81.” Harding v. State, 5 Md. App. 230, 247, 246 A. 2d 302, 312. There was amply sufficient evidence to warrant appellant’s conviction of assault with intent to murder.

Ill

Appellant's third and final contention that he was denied due process of law by his unlawful extradition from the State of New York is also without merit. No question was raised at the trial regarding any irregularities in the extradition procedure. Since this issue is not properly before us, as it was not raised below, it may not now be raised on appeal. Tillery v. State, supra, 147. Maryland Rule 1085.

Judgment affirmed.


author: Murphy, C J.,

text:
    BURVLE E. RAMSEY v. STATE OF MARYLAND
    [No. 99,
    September Term, 1968.]

      Decided December 27, 1968.

      The cause was argued before Mtjrpiiy, C.J., and Anderson, Morton, Ortii, and Thompson, JJ.

      Robert Allen Sapero for appellant.

      H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Fred K. Grant, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C J.,

delivered the opinion of the Court.

The appellant was found guilty of assault, carrying a concealed weapon and of being a rogue and vagabond on December 1, 1967 before Judge Edwin J. Wolf, without a jury, in the Criminal Court of Baltimore. He was sentenced to five years for the assault conviction, three years for the concealed weapon conviction, and two years for the rogue and vagabond conviction, all to run concurrently under the jurisdiction of the Department of Correction. On this appeal he contends that (1) he was illegally arrested and searched, and (2) that the evidence was insufficient to support his conviction for assault and for being a rogue and vagabond.

The evidence adduced at the trial showed that Joseph Aiker was in Bechelli’s Bar in Baltimore City on September 2, 1967 at approximately 11:30 a.m. when, while playing the pinball machine, he was suddenly and without warning shot in the side.

Aiker testified that he had known the appellant casually for about three or four months prior to the incident, and that the only conversation he had with him on the day of the shooting was to say “hi” when he first entered the premises fifteen or twenty minutes before he was shot.

George Bryant, a bartender at Bechelli’s Bar, testified that the appellant entered the premises at about 6:30 a.m. and checked a black pistol having a white handle with him; that he wrapped the pistol in a towel and deposited it in a drawer behind the bar; that the bar was full of customers when Aiker came in; that soon thereafter the appellant said he was going home and asked for the return of his gun; that a short time after he returned the gun to the appellant, he heard a sound resembling a firecracker explosion and saw Aiker lying on the floor. Bryant testified that he did not observe the appellant after he had returned the gun to him. He was unable to identify State’s Exhibit No. 1 as the gun he checked for the appellant, although he stated it was similar in appearance.

Benjamin Bates, a patron of the bar, testified that he was present when the shooting occurred; that just prior thereto he had observed the appellant go behind the bar and say to the bartender, “Give it to me now”; and that he saw the bartender pass to the appellant “a little bit of something white, like it might be the handle of something.” Bates testified that through a glass mirror he saw the appellant raise his left arm, bent at the elbow, and place his right hand on top of his left arm; and that he then heard appellant utter what sounded like “hi”, followed by a “bang.” Thereafter, he noticed Aiker lying on the floor and that the appellant had gone. At no time did Bates see the appellant with a gun in his hand.

Officer William Delahanty testified that at 7:05 p.m. on the day of the shooting, he investigated the crime, having “received a call to Bechelli’s Restaurant, man wanted for questioning in the above offense was in the bar”; that the description he had of the man was that he was white, twenty-eight, about 145 lbs., dark hair, wearing a red coat and green tie, brown pants, and that he was known as Bob; that he then spoke to the owner of the bar, as a result of which he then spoke to the appellant who was seated in the tavern; that appellant admitted, in response to questions, that his name was Bob and that he was in the bar “at the time of the offense”; that appellant was requested and agreed to come to police headquarters “to tell us about it”; and that as they were leaving the bar, the officer noticed that appellant appeared to be under the influence of alcohol or drugs and that he staggered. Delahanty was unable to recall the clothing worn by the appellant when he approached him on the night of his arrest, other than to state that he had a “jacket” on when he was arrested. The officer testified, however, that he thought appellant was “the subject we were looking for”; that “we "were looking for a particular description,” and that having observed the appellant in the light, “in my mind this was the man we were looking for.” As Delahanty and appellant emerged from the tavern, Delahanty noticed that there was “a bulge” at appellant’s wraistline which “appeared to be the butt of a gun”; and that as he was trained “for the bulge,” he “reached in and removed” a gun from appellant’s waistline; that the gun had five bullets in it and one spent shell; and that the appellant was then placed under arrest and advised of his rights under Miranda v. Arizona, 384 U. S. 436. Delahanty identified the gun taken from appellant and it was received in evidence as State’s Exhibit No. 1. As the bullet was never recovered from Aiker’s body, no ballistics examination was made.

John Conner, a witness for the appellant, testified that on the night appellant was arrested by police, he was dressed in a sport shirt and “trousers.” The appellant did not testify.

I

Appellant contends that as the arrest was unlawful the ensuing search of his person and seizure of the gun from him was likewise illegal so that the introduction of the gun in evidence over his obj ection constituted reversible error.

As we recently pointed out in Robinson v. State, 4 Md. App. 515, 522, a warrantless arrest by a police officer is valid where he has probable cause to believe at the time of the arrest that a felony had been committed and that the person arrested has committed it. Where the offense is a misdemeanor the rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe that a misdemeanor has been or is being committed in his presence or view, and that the arrestee is the misdemeanant. See Salmon v. State, 2 Md. App. 513, 522.

The record before us discloses that the arresting officer went to the bar some seven hours after the shooting to question a man in connection with the shooting. While he had a description of the person he wanted to question, and information that his name was Bob, there is nothing in the record to show that the officer had probable cause to believe that that person was himself suspected of committing the crime. As the evidence indicates only that the officer wished to question the appellant in connection with the shooting, we hold that appellant’s arrest cannot be justified on the basis that the officer had probable cause to believe that appellant had committed a felony.

We think it clear from the record, however, that appellant was not placed in an arrest status simply because the officer approached him in the bar, sought his identity, and asked whether he was present at the time the crime was committed. Nor can we find from the evidence before us that appellant’s agreement to accompany the officer to police headquarters was other than entirely voluntary on his part, and not in submission to police authority. It is clearly to be gleaned from the evidence that as the two men were emerging from the tavern the officer observed a bulge at appellant’s waistline which appeared to him, in light of his police training, to be the butt of a gun. We are unwilling to conclude on the record before us that Officer Delahanty’s uncontradicted testimony as to these observations was not credible. Carrying a concealed weapon being a misdemeanor for which an arrest without warrant may be made if committed in the officer’s presence, Crosby v. State, 2 Md. App. 578, we hold that the arrest of the appellant and search and seizure of the gun from his person, occurring substantially simultaneously were lawful. In so concluding, we are mindful of the fact that in determining whether a misdemeanor has been committed in the “presence” of the officer, the term “presence” denotes that the commission of a misdemeanor is perceptible to the officer’s senses, whether they be visual, auditory, or olfactory. As stated in Davids v. State, 208 Md. 377, a crime is committed in the presence of an officer where his senses afford him knowledge that such is the fact; and that where some evidence of a commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the misdemeanor is then being committed, the officer may act upon such information as being tantamount to actual knowledge that the misdemeanor is being committed in his presence. While we think the evidence before us, considered in light of all the circumstances, satisfies this test, we do not hold that every suspicious bulge observed by a police officer will support an arrest for carrying a concealed weapon. See Capfarella v. State, 235 Md. 204. In view of our holding, we need not consider the applicability to the facts of this case of the so-called “stop and frisk” cases decided by the Supreme Court of the United States on June 10, 1968, i. e., Terry v. Ohio, 392 U. S. 1; Sibron v. New York, 392 U. S. 40; Peters v. New York, 392 U. S. 40.

II

We find no merit in appellant’s contention that the evidence was insufficient to convict him of common-law assault. It is true that the evidence adduced against appellant in proof of the assault charge was largely circumstantial, there being no witness who actually saw appellant, gun in hand, fire the shot into Aiker’s body. While we do not think that the evidence was solely circumstantial, as claimed by the appellant, even were we to assume that it was, we think the lower court could have properly found from the evidence that the circumstances, taken together, were inconsistent with or such as to exclude every reasonable hypothesis or theory of innocence — this being the evidentiary yardstick by which the legal sufficiency of the evidence is to be measured where proof of guilt is based solely on circumstantial evidence. As we pointed out in Nichols v. State, 5 Md. App. 340, circumstantial evidence need not be such that no possible theory other than guilt can stand; it need not be necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the mind of the trier of facts. The evidence of appellant’s possession of a revolver at the precise time and place of the shooting, coupled with the fact that immediately prior to the shooting he was observed in a stance customarily assumed by persons desiring accuracy in firing revolvers, constitute circumstances which, when coupled with the further fact that on the same day as the shooting he was apprehended having a revolver on his person from which one shot had been fired, lead us to conclude that the lower court’s judgment finding appellant guilty of assault was not clearly erroneous. See Maryland Rule 1086.

Ill

Appellant finally contends that the evidence was insufficient to convict him of being a rogue and vagabond under Section 490 of Article 27 of the Maryland Code. That Section, insofar as pertinent, provides as follows:

“If any person shall be apprehended having upon him any * * * pistol * * * at places and under circumstances from which may be presumed an intent feloniously to assault any person, * * * every such person shall be deemed a rogue and vagabond * *

The thrust of appellant’s argument is that no evidence was adduced from which it could be rationally concluded that he possessed the criminal intent required by the statute for conviction. The record discloses that the basis for the conviction was appellant’s apprehension, some seven hours after the shooting, with a gun in his possession. We think it readily apparent that the requisite intent may not be presumed solely by proof that he had the gun upon him. The statute requires an evidentiary showing that the gun was in the possession of the accused “at places and under circumstances” permitting a presumption that the accused intended to assault someone with it. While it is true that there was evidence showing the probability that the gun had been used in an assault seven hours prior to appellant’s apprehension, thus indicating some general propensity to use the weapon to assault persons, we do not think, on the record before us, that the evidence, or rational inferences properly drawable therefrom, sufficiently showed that appellant’s possession of the gun under the existing, circumstances carried with it the intent required for conviction under the statute. Compare Streeter v. State, 5 Md. App. 435.

Judgments affirmed as to the second count (assault) of indictment 5049 and the first count (carrying a concealed weapon) of indictment 5050; judgment reversed as to the second count (rogue and vagabond) of indictment 5050 and case remanded for a new trial.