author:
Moylan, J.,
      Lowe, J.,

text:
    PETER J. BORZA, III v. STATE OF MARYLAND
    [No. 556,
    September Term, 1974.]

      Decided March 21, 1975.

      The cause was argued before Moylan, Menchine and Lowe, JJ.

      Geraldine K. Sweeney, with whom were Alan H. Murrell, Public Defender, Dennis M. Henderson and Frank Sacks, Assistant Public Defenders, on the brief, for appellant.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Mark Van Bavel, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 412 infra.

The appellant, Peter J. Borza, III, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge Albert L. Sklar, of statutory arson. Upon this appeal, he raises six contentions.

1. That the trial judge should have ruled that Joseph Credge was an accomplice as a matter of law and that there was insufficient evidence to corroborate his testimony;

2. That there was insufficient testimony from which the jury could find that the accomplice’s testimony was corroborated;

3. That the trial judge erred in refusing to give appellant’s requested jury instructions;

4. That the trial judge committed reversible error in admitting prejudicial hearsay evidence;

5. That the trial judge erred in refusing to grant a mistrial; and

6. That the evidence was legally insufficient to sustain the convictions.

Because of our holding that the corroborative testimony was sufficient, even if Joseph Credge is assumed to be an accomplice, contentions one and two merge. Contention six may be dealt with along with them.

Late in the afternoon of Saturday, October 2, 1971, a fire occurred at the Castro Convertible furniture store at 315 North Howard Street in Baltimore. It was during business hours. The site of the fire was on the fifth floor, an area used for the storage of furniture. The business was one of three furniture stores in Maryland and New Jersey operated by the appellant, as franchisee of the Castro Convertible Company. The Harford Mutual Insurance Company paid $13,917.52 for damages to the store and $24,655.57 for damages to the contents. An accountant testified that as of June, 1971, three months earlier, the store was operating at a net loss of $104,000.

Captain John Richter of the Baltimore City Fire Department’s Fire Investigation Bureau arrived at the fire scene at 5:05 p.m. He estimated that the fire had been burning about one hour when he arrived. The first alarm had been turned in at 4:36 p.m. by a parking lot attendant next door who saw smoke and flames coming from the building. Captain Richter could not fully ascertain the cause of the fire. He found a large pile of trash burning on the fifth floor. The fire had also spread to the sixth floor. He effectively eliminated electrical or heating fixtures as a cause of the fire. He could not eliminate spontaneous combustion, noting that the source of possible combustion would have been consumed in the fire. He surmised that the fire probably resulted from careless smoking. He did interview the employee who had worked on the fifth floor that day, however. That employee was not a smoker, and he had not been in the store after 12:30 p.m. that day.

The testimony of the assumed accomplice now comes into play. Joseph Credge first became acquainted with the appellant in 1967. He was later employed by the appellant as a salesman in his Trenton, New Jersey, store. Credge later worked as general manager of both the Trenton store and the Baltimore store. In 1971, Credge and the appellant became partners in the Trenton store.

Credge testified that the Baltimore store was losing money and that in April or May of 1971, he and the appellant began discussions as to how to dispose of it. They finally determined to burn the Baltimore store. It was agreed that one or the other of them would go to the fifth floor of the Baltimore store and set fire to the packing materials and rubbish which were usually piled there awaiting disposal. On two occasions, on two successive Saturdays in September, 1971, Credge traveled from Trenton to Baltimore to set the fire. On both occasions, he abandoned the attempt because of fear. On the night of Friday, October 1, 1971, the appellant told Credge that he was going to Baltimore the next day and would set the fire if the opportunity presented itself. As a signal to the appellant upon his return to Trenton that the mission had succeeded, Credge was to leave the lights on in the Trenton store if word came in from Baltimore that the store had caught fire. Late on the afternoon of October 2, Credge, in Trenton, received a telephone call from the manager of the Baltimore store informing him that the store had caught fire.

The corroboration of Credge’s testimony came largely from three employees of the Baltimore store. John Martin, the manager of appellant’s Towson store, received a call from the appellant on the morning of October 2. The appellant informed Martin that he was taking a train in from Trenton and asked to be picked up at Pennsylvania Station. Martin picked him up at the station at between 3:30 and 4:00 p.m. and drove him immediately to the Howard Street store. The appellant spent a few minutes on the first floor talking to various employees. A customer came in, and the appellant took him upstairs. The employees assumed that the two were going to a second floor showroom. They were not certain whether the appellant returned to the first floor simultaneously with the customer. All that was certain was that the appellant was out of their sight on some upper floor. The appellant returned to the first floor about fifteen minutes after he had left it and within several minutes told Martin that he had to catch a train. They immediately departed. Martin dropped the appellant at Pennsylvania Station “at most one hour” from the time he picked him up. Martin was just three blocks away from the station when he heard on his car radio about the store fire on Howard Street. He returned there immediately. The appellant took the stand and acknowledged the account of his visit to Baltimore as given by the three employees.

We have no difficulty whatsoever in holding that the testimony of the assumed accomplice was amply corroborated. The test with respect to corroboration was well stated by Chief Judge Orth in Early v. State, 13 Md. App. 182, 282 A. 2d 154, at 191-192:

“ ‘ “Corroborate” means to strengthen, not necessarily the proof of any particular fact to which an accomplice has testified, but the probative, criminating force of his testimony.’ Wright v. State, 219 Md. 643, 649, quoting with approval 1 Underhill Criminal Evidence (5th ed. 1956) § 185. It is settled that the corroborative evidence must tend either: (1) to identify the defendant with the perpetrators of the crime, or (2) to show the defendant’s participation in the crime itself Foxwell v. State, supra; Spies v. State, 8 Md. App. 160. If with some degree of cogency it tends to establish either of these matters it would be sufficient, authorizing the trier of fact to credit the accomplice’s testimony even with respect to matters as to which there had been no corroboration. McDowell v. State, supra, at 213. Corroboration need not extend to every detail. Brown v. State, 210 Md. 301, 305 and cases there cited. So it is not necessary that in and of itself the corroborating evidence be sufficient to convict, and not much in the way of corroboration is required; only slight corroboration is necessary. The corroborating evidence may be circumstantial. Nolan v. State, 213 Md. 298, 309. ‘Whether the testimony of an accomplice has in fact been sufficiently corroborated must, of course, depend upon the facts and circumstances, and the inferences deducible therefrom, in each case.’ Wright v. State, supra, at 650.” (Emphasis added)

The foregoing would also be dispositive of the appellant’s sixth contention that the evidence was legally insufficient to permit the case to go to the jury, but for an added fillip in that regard. The fourth count charged specifically that certain merchandise, to the detriment of the defrauded insurance company, was “set fire to and burn[ed].” The fire investigator testified that the literal damage to the furniture was from its being “smudged from smoke and heat” and “water damage.” Art. 27, Sec. 9 reads, in pertinent part:

“Any person who wilfully and with intent to injure or defraud the insurer sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any goods, wares, merchandise or other chattels or personal property of any kind, or of the property of himself or of another, which shall at the time be insured by any person or corporation against loss or damage by fire; shall upon conviction thereof, be sentenced to the penitentiary for not more than five (5) years.” (Emphasis added)

It is clear to us that the gravamen of the offense is defrauding the insurance company by damaging goods through the agency of fire. That the literal damage comes from the heat of the fire, from the smoke of the fire, or from the water of the firemen’s hoses, rather than through the chemical process of combustion, is not controlling. To hold otherwise is to make an absurdity of the law. The employment of the phrase “sets fire to” as an alternative actus reus to “burns” frees this law from ancient rigidity of the arson laws when it comes to the term “burn.” Cochrane v. State, 6 Md. 400 (1854), holds that there is a difference between the two terms and cites with approval the Virginia case of Howell v. Commonwealth, 5 Grattan 664. That case states, at 670-671:

“We are not satisfied that setting fire to and burning, have been established by any legal authority to be synonymes, so as to justify, in an indictment upon the statute, the substitution of the former words in the place of the other. East, (2 Cr.L. 1020, § 2) remarking upon the statute 9 Geo. i. ch. 22, says, that that statute does, indeed, in enacting the felony, make use of the words ‘set fire to’, but he was not aware of any decision which had put a larger construction on those words than prevails by the rule of the common law; and the contrary opinion may be collected (he says) from what is said in Spalding’s Case (1 Leach 218), and Breeme’s Case, (1 Leach 220) and in the case of Sarah Taylor, (1 Leach 49). With all the respect which is justly due to this writer, upon an attentive inspection of the authorities which he has referred to, it will be discovered that there is nothing in these cases which decides that these expressions are identical in their meaning. The same author, in a subsequent section, (§ 11) says, that at common law, it was necessary to state an actual burning, but that the statute 9 Geo. i. ch. 22, using the term ‘set fire to’ the house, it is now become common to state both, though (as he says) in effect meaning the same thing. (2 East 1033). But yet in Salmon’s Case, Russ. & Ry. C. C. 26, (which was a prosecution under this statute, for setting fire to a hay stack), it was moved to arrest the judgment, on the ground that it was not averred in the indictment, that by reason of setting on fire, the stack of hay was burnt and consumed; and the point being reserved, the Judges were of opinion that the conviction was right — that it was not necessary the stack should be burned, the words of the act being ‘set fire to’. (2 Bagg. Cr. L. 79). This authority seems clearly to decide that setting fire to and burning are not legal synonymes. If they were, there would be no reason for that redundancy of language which is usual in the indictments under the stat. 9 Geo. i., according to the forms, laying burning as well as setting fire to. (See 3 Chit. Cr. L. 1109-1115). In the statutory offences of arson, enacted in the 2d and 3d sections of our statute, 1 Rev. Code, ch. 160, the offences are described ‘burn or set fire to’; but in the 4th section, under which it is that the present indictment is laid, the expression is ‘burn’ alone. The change in the phraseology would seem to intimate on the part of the Legislature that there was a difference in the meaning. It is not, therefore, without reason, that Mr. Davis, in his work on Criminal Law, regarded the difference in the language as distinguishing between burning and setting fire to. (Davis’ Cr. L. 117, see note q.)”

The dissent raises an issue not raised by the appellant, unless arguably done so under the broad and undifferentiated umbrella of charging that the evidence was legally insufficient to permit the case to go to the jury. Out of chance phrases in McDowell v. State, 231 Md. 205, 189 A. 2d 611, and Bollinger v. State, 208 Md. 298, 117 A. 2d 913, the dissent spins the theory that the corpus delicti of arson may never be established by evidence which goes to show criminal agency. Because an uncritical reading of dicta in Bollinger might give rise to such a misperception in others, it may be well to try to lay the ghost to rest.

In McDowell, the critical question was whether the testimony of an accomplice had been adequately corroborated. The court held that it had, and the conviction for arson was affirmed. Preliminarily, the court did recite the facts of the case and did set forth the uncontested fact that the corpus delicti of arson had there been established. It then quoted Wharton [1 Wharton’s Criminal Evidence (12th ed., Anderson, 1955) § 17, at 48] to the effect that “[p]roof of the defendant’s connection with the crime as the operative agent, although essential for conviction, is not part of the corpus delicti.” The court in McDowell was not remotely considering the question for which the dissent cites McDowell as authority — that of whether evidence of criminal agency may be used to prove the corpus delicti. The McDowell court was simply clearing the arena of the undisputed issues before coming to grips with the issue in that case — whether the testimony of the accomplice establishing the criminal agency of McDowell was adequately corroborated. That court was in effect saying, “The corpus delicti is not in dispute, but the mere establishment of the corpus delicti does not establish the criminal agency of the defendant. We now turn to the question of criminal agency generally and to the corroboration of the accomplice specifically.” Indeed, a quick glance at the quoted Wharton makes it clear that that authority was not there considering any question dealing either with arson law or with whether an item that may go to show criminal agency may also go to show a particular element of a particular crime. In the general introduction, rather, to the concepts dealt with in the criminal law, Wharton was attempting to define and to distinguish the notion of corpus delicti from the notion of criminal agency.

Indeed, a moment’s reflection on the proposition urged by the dissent — that each and every element of the corpus delicti must be established totally independently of proof tending to show criminal agency — will supply its own refutation. Whereas the actus reus may conceivably be established by independent proof not going to the criminal agency of anyone, a mens rea — general or special — is also a necessary element of the body of a crime. Mens rea, by definition, exists in the head of the perpetrator and not in a vacuum. Arson, moreover, is a crime having as one of its elements the special mens rea that the act of burning shall have been “willful and malicious.” This specific intent of willfulness and malice must have existed in the brain of him who burned or him who procured the burning. Proof, therefore, of this particular mental element of the crime is, ipso facto, proof of criminal agency. It cannot be otherwise.

McDowell is also instructive on the further point of what is independent evidence tending to corroborate the testimony of an accomplice. In McDowell, an apartment was burned. The defendant was a subtenant enjoying residential privileges through January 3, 1962, the day of the fire. His presence in the apartment house, like the presence of the present appellant in the Howard Street store, was, therefore, not remarkable. Notwithstanding the relative innocuousness of such presence, standing alone, that presence was nevertheless held to be independent evidence corroborating the accomplice’s testimony.

The McDowell court also considered as independent, corroborative evidence, the inference of a motive arising out of the fact that the defendant was being ejected from the apartment. Further evidence of motive came from the mouth of the accomplice, but the inference was held to be corroborative. In the present case also, direct testimony as to motive came from the accomplice Credge. The fact of the insurance being carried on the appellant’s business and the independently established fact that that business had been operating at a net loss of over $100,000 during the months immediately preceding the fire certainly give rise to an inference of motive as forcefully as did the ejectment by a landlord in McDowell. In referring to these two independent items of evidence, McDowell said, passim,. at 231 Md. 212-214:

“Here the evidence of McDowell’s presence, of his having to leave the apartment, and of his being the last person shown to have been in the immediate vicinity of the scene of the crime with both the opportunity and a possible motive to commit the offense serves as corroboration of the identification of the defendant with the commission of the crime, which is the other branch of the Polansky rule.
In an arson case the presence of the defendant in the vicinity of the fire, whether before or after its occurrence, is always relevant. Bollinger v. State, supra, 208 Md., at 307. ... As to both presence and motive the defendant’s testimony corroborates that of the accomplice. He was in the immediate vicinity of the fire shortly before it was set, and he was being put out of the apartment along with Aldrich.
The defendant’s presence near the scene of the fire was also corroborated by the independent witness, the plumber . . .
The most important corroborative evidence we think consists of that which (1) shows McDowell’s presence, (2) suggests a motive for setting the fire, and (3) shows that Aldrich departed from the scene when the fire occurred, leaving McDowell at the scene. ... At that time the appellant had ready access to the place whére the fire soon afterwards appeared.” j

Nor will Bollinger, under; close examination, support the theory erected upon it. It is important to put Bollinger in perspective.

The barn burning, on which the conviction in Bollinger was had, occurred on December 16, 1954. Both defendants gave formal confessions to the State Police. The heart of the defense contention was that “the court erred in admitting the confessions before the State had overcome the legal presumption that the fire was not a criminal fire and before the State had proved the corpus delicti which they claim the State had never been able to prove.” 208 Md. at 303. The central issue was the order of proof — the question of whether the State could offer the defendants’ confessions before the corpus delicti had been shown. The Court of Appeals there held that there was no error in the Bollinger case and they affirmed the conviction. The Court adhered to the general truism that a confession of crime alone will not sustain a conviction and that, ordinarily, the confession should not be the first item of the State’s proof. In retaining flexibility in application of the principle, however, the Bollinger court cited Weller v. State, 150 Md. 278, 132 A. 624, to the effect that an extrajudicial confession is not admissible “unless there then exists, or there is a proffer of proof later” of the corpus delicti. (Emphasis supplied) It went on to cite Harris v. State, 182 Md. 27, 31 A. 2d 609, for the proposition that the order in which the evidence should be produced “is largely a matter within the discretion of the .trial court.”

The court set out the defense thesis and the applicable law, at 208 Md. 304:

“Appellants further argue that without proof of the corpus delicti the confessions were not admissible. It is stated in Wharton’s Criminal Law, 12th Ed., Vol. II, Section 1063, as follows: ‘The burden is on the state to show that the burning was with a criminal design, — this is the corpus delicti. The corpus delicti cannot be established by proof of the burning alone, or by the naked confession of the accused. Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the state must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.”

It is easy to see where the dissent was logically ensnared, because the passage in Wharton, cited with apparent approval by Bollinger, is a model of poor exposition. It joins in a single sentence — “The corpus delicti cannot be established by proof of the burning alone, or by the naked confession of the accused.” — two very disparate propositions, without so much as a break of paragraph or even a period to make them twain. That freakish accident of murky exposition cannot give birth to the notion that the corpus delicti of an arson cannot be proved by the combination of proof of burning and the confession of the accused.

As to the first proposition, Wharton reiterates the universally accepted truth that the confession of a crime cannot, standing alone, warrant a conviction, absent some independent evidence of the corpus delicti. The thrust of the principle is to prevent mentally unstable persons from confessing to, and being convicted of, crimes that never occurred. Bollinger makes clear that it is this general principle — and not some rule peculiar to arson cases — that is being discussed. “Apparently there is no difference in this rule as applied to arson than in other criminal cases.” 208 Md. at 304. “There is no question that in this State an extra-judicial confession of guilt by a person accused of crime uncorroborated by other evidence is not sufficient to warrant a conviction.” Id. at 304-305. “Generally an uncorroborated confession does not establish as a matter of law the commission of crime beyond a reasonable doubt. The purpose of the rule requiring corroboration of confessions is to guard against convictions based upon untrue confessions alone.” Id. at 305. All of the cases cited by Bollinger make it clear that it is the general truism being discussed, and not some peculiarity of the arson law. Weller v. State, supra (where the crime was the manufacture of bootleg whiskey); Gatewood v. State, 207 Md. 374, 377, 114 A. 2d 619, 620 (where the crime in issue was a lottery violation); Markley v. State, 173 Md. 309, 196 A. 95 (where the crime was conspiracy to defraud); Jones v. State, 188 Md. 263, 52 A. 2d 484 (where the crime was murder).

Bollinger makes it very clear, in discussing specifically the proof of the corpus delicti itself, that a confession may well be one of the factors entering into that equation. It said, at 208 Md. 305-306:

“It is also not necessary that the evidence independent of the confession must be full and positive. ... In addition, the evidence necessary to corroborate a confession need not establish the corpus delicti beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the crime was committed and that the defendant committed it. As Judge Learned Hand said in Daeche v. United States, 2 Cir., 250 F. 566, 571, circumstances corroborating a confession need not independently establish the truth of the corpus delicti at all, either beyond a reasonable doubt or by a preponderance of proof, but any such circumstances unll serve which in the judge’s opinion go to fortify the truth of the confession. United States v. Kertess, 2 Cir., 139 F. 2d 923, 929.
Of course, proof of the corpus delicti in an arson case is usually a difficult matter, as the burning is almost invariably done in a most secretive manner. The prosecution usually has to depend on circumstantial evidence. State v. Edwards, 173 S. C. 161, 175 S. E. 277, 278. It was said in Ercoli v. United States, 131 F. 2d 354: ‘It is sufficient if there is substantial evidence of the corpus delicti, independent of the confession and the two together are convincing beyond a reasonable doubt.’ For other cases holding that evidence of the corpus delicti and the confession may be considered together in determining the guilt of the accused see Jones v. State, supra; Wood v. State, supra; Davis v. State, supra; State v. Traufer, 109 Mont. 275, 97 P. 2d 336; Ryan v. United States, 99 F. 2d 864; Arthur v. State, 19 Ala. App. 311, 97 So. 158.”

As to the second and very distinct proposition, Wharton is simply pointing out that one of the elements of the crime of arson, which needs be proved by the State, is the special mens rea that the burning be “willful and malicious.” Again, however, the ill-advised language of Wharton has led latter-day readers astray, particularly where Wharton said:

“Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the state must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.”

This, of course, is not a presumption of law. It is simply a statement that the State has the burden of proving all elements of a crime. A legal presumption has the effect of shifting to an opponent the burden of going forward and producing evidence. 9 Wigmore on Evidence (3rd ed. 1940) § 2490, “Presumptions.” No burden, of course, shifted to the State in this instance, since the State had the burden from the very outset. This is one more instance of the word presumption having too many meanings. The presumption referred to here, like the so-called presumption of innocence, is neither a true presumption of law nor an inference of fact, but a statement as to the burden of proof. The State has the burden of proving the special mens rea in an arson case beyond a reasonable doubt, just as it has the burden of so proving every other element of this or any other offense. Indeed, later editions of Wharton have now refrained from this loose use of the word “presumption.” 2 Wharton’s Criminal Law and Procedure (Anderson Edition, 1957) now describes, in dealing with arson, the mental state at § 390:

“In the absence of contrary evidence, it is assumed that every burning is accidental or is due to natural causes, and not criminal design. The burden is, accordingly, on the prosecution to establish that it was wilful and malicious. Because of this, the corpus delicti is not established by proof of burning alone, since such fact does not prove the intent with which the act was done.”

We note, moreover, that the words of the appellant at issue in this case were operative words of the then ongoing conspiracy spoken by the appellant to Credge and were not a confession within the contemplation of Bollinger. Bollinger, indeed, even considered the post-crime blurt, “I did it” made to a policeman as outside its notion of “confession,” which it restricted to a response to a formal custodial interrogation.

Bollinger lends further support to our holding that there was in this case ample independent evidence to corroborate the testimony of an assumed accomplice. The defendants in Bollinger lived on a neighboring farm and regularly frequented a nearby store. Their presence, like the presence of the appellant here at the North Howard Street store, was, therefore, unremarkable. Nonetheless, such presence near the scene of the crime was held to be independent evidence of guilt:

“Appellants arrived in a car at the store two miles distant from the fire about twenty-five to thirty minutes after Mr. Keilholtz saw the small fire and from ten to twenty minutes after Mr. Valentine testified that the barn was ready to explode. In arson cases, evidence that the accused was seen in the vicinity of the fire, whether before or after it occurred, is always relevant. It is said in Underhill on Criminal Evidence, 3rd Ed., page 798, Section 564: ‘It is always relevant, particularly in the case of the crime of arson, which is usually committed at night and with the greatest secrecy, to show that the accused was seen in the vicinity of the burned building about the time of the fire, whether before or after it occurred.’ ” 208 Md. at 307.

Curiously apposite also in the Bollinger case was that the court there found relevant to the establishment of the corpus delicti the facts that the barn owners had been present in their barn a little more than an hour before the fire occurred, that neither of the owners smoked, and that the barn had recently been wired by an electrician and the wiring was apparently all right.

The appellant’s third contention is that he was erroneously denied the following requested instruction:

“The Court instructs the jury that to constitute the offense of arson it is necessary that the burning be wilful and malicious. In the absence of contrary evidence it is assumed that every burning is accidental or due to natural causes and not criminal design. The burden is, accordingly, on the prosecution to establish that it was wilful and malicious. Because of this the corpus delicti is not established by proof of the burning alone, since such fact does not prove the intent with which the act was done.”

There was, to be sure, nothing improper about the requested instruction. Hughes v. State, 6 Md. App. 389, 251 A. 2d 373. The adequacy of the instructions is determined, however, by viewing them as a whole. State v. Foster, 263 Md. 388, 283 A. 2d 411; Shotkosky v. State, 8 Md. App. 492, 261 A. 2d 171. The trial court’s discretion as to wording, order and amount of detail in his instructions should not be disturbed on appeal absent a clear abuse of that discretion. Mills v. State, 12 Md. App. 449, 279 A. 2d 473. The judge charged the jury that the burden of proof was upon the State to establish every element of the crime charged and that the appellant was presumed innocent until proved guilty beyond a reasonable doubt. The jury was instructed that the appellant was entitled to every inference that could reasonably be drawn in his favor from the evidence. The instructions went on:

“You are instructed that the crime charged by the State, the crime of arson, requires proof beyond a reasonable doubt of specific intent on the part of the defendant of specific intent before the defendant can be convicted. To establish specific intent, the State must prove that the defendant knowingly did an act which the law forbids purposely intending to violate the law; or that he wantonly and recklessly disregarded the law.
If a man does an unlawful act, the natural tendency of which is to set fire to and burn a building, and such consequences follow, the burning is to be regarded as intentional and malicious. In that regard, you are advised that to constitute the offense of arson, it is necessary that the burning be willful and malicious. The burden is upon the State to establish beyond a reasonable doubt that it was willful and malicious.”

Setting down the nubs of the instruction requested and the instruction given side by side, it is clear that the difference is only stylistic.

Instruction Requested
“[I]t is necessary that the burning be wilful and malicious. In the absence of contrary evidence it is assumed that every burning is accidental or due to natural causes and not criminal design. The burden is, accordingly, on the prosecution to establish that it was wilful and malicious.”
Instruction Requested
Instruction Given
“In that regard, you are advised that to constitute the offense of arson, it is necessary that the burning be willful and malicious. The burden is upon the State to establish beyond a reasonable doubt that it was willful and malicious.”
Instruction Given

Every essential point of law was properly covered. That is all we ask of instructions. Harris v. State, 11 Md. App. 658, 276 A. 2d 406.

The appellant, in his fourth contention, claims that certain testimony by F.B.I. Agent Arthur Hall was hearsay. It was not hearsay. After Credge returned from his seeond aborted fire-setting trip to Baltimore in September, 1971, he telephoned Agent Hall in Trenton and both confessed his own involvement up to that time and indicated the likelihood that the appellant would go forward with the planned arson. Credge indicated that he wanted to notify the authorities. Agent Hall consulted his supervisor and called Credge back, informing him that it was not an F.B.I. matter. The agent advised Credge to notify the Baltimore authorities, which Credge did not do. The F.B.L did not follow through either. At the trial, the issue of whether Credge was still an accomplice on the critical date of October 2,1971, or whether he had by that time abandoned the conspiracy was a focal issue. The F.B.I. agent was called by the State and recounted the conversation he had with Credge in September, 1971. On the issue of abandonment, the conversation of Credge with the F.B.I. was not hearsay but an operative verbal act. A disclosure to police authorities is an indication of abandonment of the criminal purpose. The out-of-court statement of Credge to the F.B.I., therefore, was not offered for the truth of the thing asserted (which would be hearsay) but rather for the verbal act of the asserting. See 29 Am.Jur.2d, Evidence, § 497, “What Constitutes Hearsay Within Exclusionary Rule, In General,” p. 555:

“The hearsay rule, however, does not operate, even apart from its exceptions, to render inadmissible every statement repeated by a witness as made by another person. It does not exclude evidence offered to prove the fact that a statement was made or a conversation was had, rather than the truth of what was said. Where the mere fact that a statement was made or a conversation was had is independently relevant, regardless of its truth or falsity, such evidence is admissible as a verbal act.”

The statement was, moreover, admissible in serving another function. After Credge’s abortive attempt to notify the proper authorities, he remained silent for over two years. Both his motives and his credibility were attacked and significantly impeached on cross-examination. The inference was pregnant that Credge’s story two years after the fact was a malicious and fabricated afterthought. The prior consistent statement, made over two years earlier, was significantly rehabilitative of that damaged credibility, which is a recognized function of a prior consistent statement. The out-of-court statement, in that regard, is offered not for the truth of the thing asserted but rather to show that what was asserted then is the same as what is being asserted now. Harris v. State, 11 Md. App. at 660-662; 58 Am. Jur., Witnesses, § 828; 98 C.J.S., Witnesses, § 648 a (3).

The appellant’s fifth contention is that the trial judge erroneously denied his motion for a mistrial. The motion came during the cross-examination of the appellant:

“Q. When did you get rid of that store? [The store in Trenton]
A. I didn’t get rid of it, the court did, or the people — I don’t know what you’re speaking of, exactly, how did I get rid of it; it was in bankruptcy.
Q. Wasn’t it a fact that that store was destroyed also?
MR. SACKS (Defense Counsel): Objection, Your Honor.
THE COURT: I’ll have to sustain that. I do not know what you mean by destroy.
MR. VAN BAVEL (Assistant State’s Attorney): Isn’t it a fact that that store blew up?
MR. SACKS: Objection, Your Honor.”

A hurried bench conference was called. The prosecutor proffered information that the appellant’s Trenton store had been destroyed in April, 1972, by an explosion of undetermined cause, at least showing good faith on the part of the prosecutor if not total discretion. The wisdom of long experience has taught us to place confidence in the trial judge on the scene to exercise his sound discretion as to whether a mistrial should or should not be granted. He is in the unique position to gauge the effect of a remark upon the people under his observation. Mistrials should not be granted except under urgent circumstances and with the greatest caution. Baldwin v. State, 5 Md. App. 22, 245 A. 2d 98; Reeves v. State, 3 Md. App. 195, 238 A. 2d 307; Gerstein v. State, 10 Md. App. 322, 270 A. 2d 331. The judge denied the motion and immediately gave the following curative instruction:

“Members of the jury, I want to advise you to disregard any references made here to any other store. It has nothing whatsoever to do with this case. We know nothing about any other store, and if we did, it would have nothing whatever to do with this case. So, please disregard any reference or discussion concerning any other store’s liquidation. I do not know whether or not there was any liquidation. Just disregard that completely.”

We cannot say that his discretion was abused.

Judgments affirmed; costs to be paid by appellant.

Lowe, J.,

dissenting:

I must respectfully depart from the majority because it is obvious to me that the State failed to meet its burden.

Borza was convicted solely upon the testimony of his accomplice, Credge, who, after a homosexual affair with Borza had been rejected by him in preference for a more natural relationship with one of the opposite sex. The testimony was gratuitously volunteered after two years of silence following the fire. Suffice to say, Credge was not a reluctant witness. More than that, his testimony at most established only that he and appellant had discussed burning the store the preceding April or May, that he, Credge, had twice traveled to Baltimore in September to burn the store, and that on the night before the fire, appellant had mentioned that he might set fire to the store. This factual posture presented at least four possibilities:

1. that Credge told the truth and appellant wilfully and maliciously set fire to the store;
2. that Credge told the truth but that the fire was accidental and Credge wrongfully deduced appellant’s guilt;
3. that Credge lied about the previous conversations;
4. that Credge himself set the fire knowing appellant would be in the store that day.

I recognize, of course, that fact-finding is left to the jury. The majority, however, inexplicably fails to recognize that it is for that reason the courts have engrafted on the fact-finding process certain fundamental legal protections for a criminal accused. To insure that the second hypothesis is not the case, the State must prove the substantial fact that a crime has been committed, the corpus delicti-.

“The burden is on the state to show that the burning was with a criminal design, — this is the corpus delicti. The corpus delicti cannot be established by proof of the burning alone, or by the naked confession of the accused. Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the state must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.” [Emphasis added]. Bollinger v. State, 208 Md. 298, 304, quoting 2 Wharton’s Criminal Law, (12th Ed., Anderson) § 1063.

To minimize the possibility of the third and fourth hypotheses being the case, the State must introduce corroborative evidence when an accomplice testifies. The State totally failed in both regards.

Assuming Credge told the truth, his testimony did no more than establish that appellant was contemplating setting the fire, not that he set it. Had the State then proven that the fire was deliberately set — indicating a criminal act — the evidence may have been sufficient to eonvict. The State did just the opposite.

The only permissible evidence submitted by the State to meet its burden of overcoming the presumption of accident was that of Captain Richter of the Fire Investigation Bureau. From the majority’s depiction of his testimony we are told:

“Captain Richter could not fully ascertain the cause of the fire....
He could not eliminate spontaneous combustion
He surmised that the fire probably resulted from careless smoking . . . .” although the employee on the fifth floor had been a nonsmoker.

Even though the Captain had “effectively eliminated electrical or heating fixtures as a cause of the fire” certainly his testimony seemed more to establish that the fire arose from natural or accidental cause than to establish a deliberate burning.

The majority has transformed evidence of criminal agency, ie., if there was a crime, appellant probably committed it, into evidence of agency and corpus delicti, i.e., the fire was deliberately set and appellant set it. That is a leap of faith wholly unwarranted by the evidence and diametrically opposed to the Court of Appeals’s clear and simple expression of the State’s burden. In McDowell v. State, 231 Md. 205, 208 Chief Judge Brune said:

“ ‘As Wharton points out ‘[pjroof of the defendant’s connection with the crime as the operative agent, although essential for conviction is not part of the corpus delicti.’ ” (Reference here is to 1 Wharton’s Criminal Evidence, (12th Ed., Anderson 1955) § 17 at 48).

The majority dismisses the requirement of independently proving the “actus reus”, of arson simply because it is a crime requiring “a special mens rea” i.e., proof of “wilful and malicious” intent. Because “mens rea” is also an element of criminal agency does not excuse the necessity of independently proving the act charged was a crime. “Where nothing except the burning appears, the law presumes it to have been accidental, and not by criminal design; and the State must overcome this presumption of law, and prove a criminal design beyond a reasonable doubt.” Bollinger, 208 Md. at 304. However you read that sentence, whether in or out of context, its clarity dispels the notion that it is a “freakish accident of murky exposition.” It is not conceivable that the Court of Appeals meant that an accusation that a defendant discussed committing a crime, is sufficient to prove that a crime was committed. In laying their “ghost to rest” the majority may find themselves haunted by the apparition of a dormant corpus delicti.

Corroboration is the other fundamental legal protection that this case erodes. The only corroborative evidence of Credge’s testimony was the presence of the accused in his own store on the day of the fire. Significantly, this fact in no way detracts from either of the third and fourth exculpatory hypotheses suggested above.

The test for corroboration of an accomplice has been many times stated. In Luery v. State, 116 Md. 284 the Court wrote:

“[T]he important matter is to have [the accomplice] supported in at least some of the material points involved. . . .”

In Judy v. State, 218 Md. 168, 176 the Court held that corroborating testimony “need only support some of the material points of the accomplice’s testimony.” [Both cited with approval in McDowell v. State, 231 Md. 205, 211-212], Appellant’s presence in his own store, though perhaps relevant, surely cannot be regarded as assuring Credge’s verity by supporting “some of the material points” of his testimony. Presence of an accused may be adequate corroboration when it is “under unusual or suspicious circumstances.” 3 Wharton, Criminal Evidence (Torcía Ed., 1973) § 649 at 368. But the presence of a furniture store owner at his own store can hardly be regarded as either unusual or suspicious. In that situation, mere presence is not sufficient corroboration. Hatton v. Commonwealth, 253 Ky. 103, 68 S.W.2d 780.

The majority alludes at length to language in McDowell suggesting that presence was there a corroborative circumstance. With that narrow statement I have no quarrel. Non-accomplice testimony of the accused’s presence took on special significance in McDowell because of the accused’s statements which were “contradictory and untruthful . . . relating to his whereabouts at the time of the fife.” The McDowell Court, relying on Wright v. State, 219 Md. 643, stressed the fact that the testimony of non-accomplice witnesses was consistent with that of the accomplice and inconsistent with that of the defendant. That is a circumstance conspicuously absent here.

The potentially vengeful motivations of appellant’s lone accuser and the unexplained delay of two and one half years before he made the accusation create a most tenuous setting in which to undermine the safeguards provided by the requisites of proof of corpus delicti and corroboration. Strain we have and strain we should to meet a technical mischance in a case where guilt and culpability of the accused is otherwise readily apparent. But what meaning can we give to the platitudes upon which our system of justice is said to rely if we need strain so hard here, even to ascertain if a crime was committed. To permit a rejected homosexual paramour to supply that, plus every other element necessary for conviction, is to allow the accuser to make a mockery of our time-honored safeguards. In trying to stabilize the tenuous structure upon which this case is built, the majority has exacted another chip from the foundation structure of the system.

      . It is interesting to note for present purposes that the court found relevant in proving the corpus delicti of arson the fact that a captain of the Fire Investigation Bureau was able to eliminate spontaneous combustion or faulty wiring as possible causes of the fire.

      . The origin of the rule requiring corroboration of an accomplice’s testimony is well traced in Wright v. State, 219 Md. 643, 150 A. 2d 733. That case also illustrated how corroborative evidence need not itself be evidence of unlawful conduct. This aspect of Wright was summarized in McDowell, at 231 Md. 212:
      “The Wright case like the instant case, involved a conviction for arson based upon the testimony of accomplices. The opinion enumerates various items of evidence corroborative of the accomplices’ testimony. A number of them concerned matters not in themselves unlawful and some were described as corroborating ‘only the fact that the defendant had engaged in several lawful pastimes — such as going to the movies, eating watermelon and roaming the highways and byways late at night,’ yet these were held (citing Polansky v. State, supra) to afford corroboration as showing ‘that the defendant was identified with the admitted arsonists.’ ”

      . Recognizing that this was judicial dictum since that case focused on proof of criminal agency rather than the corpus delicti, it is not without precedent for this Court to adopt policy concepts in reliance upon Court of Appeals’ dicta. Cf., Transamerica Insurance Company v. Brohawn, 23 Md. App. 186.

      . The most recent edition of 1 Wharton’s Criminal Evidence (13th Ed., Torcia 1972) § 17 at 27 reiterates the same concept:
      “Proof that the defendant was the person who engaged in the unlawful conduct is of course necessary for a conviction, but it is not an element of the corpus delicti.”

      . Although prior to the fire Credge contacted an FBI agent and told him about his and appellant’s fire discussions, it would be the ultimate in tautological thinking to treat such self-serving groundwork — whether or not termed “operative verbal acts” — as corroboration.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    JON BALLARD CROWLEY v. STATE OF MARYLAND
    [No. 136,
    September Term, 1974.]

      Decided April 3, 1975.

      The cause was argued before Morton, Powers and Menchine, JJ.

      Neal P. Myerberg, Assigned Public Defender, for appellant.

      Martin M. Mrozinski, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, James L. Bundy, Assistant Attorney General, and John D. Bailey, State’s Attorney for St. Mary’s County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

In the jury trial in the Circuit Court for St. Mary’s County, presided over by Judge Joseph A. Mattingly, the appellant, Jon Ballard Crowley, was convicted of the offenses charged in the first and third counts of a four count indictment against him.

The first count charged that on 23 October 1973 the appellant and two codefendants unlawfully possessed LSD, a controlled dangerous substance, in sufficient quantity to reasonably indicate under all the circumstances an intent to manufacture and distribute such controlled dangerous substance, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. The third count of the indictment was in substantially the same words except that the controlled dangerous-substance named was marijuana.

The second and fourth counts respectively charged simple possession of each of those controlled dangerous substances without alleging any specific intent.

Questions presented in this appeal are stated in the appellant’s brief as follows:

“1. Does the State of Maryland have jurisdiction over crimes committed upon federal property?
2. Was the possession of the marijuana seized from Appellant’s vehicle prohibited by Maryland law?
3. Was the warrantless search of Appellant’s vehicle one week after his arrest unreasonable and in violation of the Fourth Amendment?
4. Was the trial court in error in instructing the jury that an intent to distribute controlled dangerous substances may be inferred from the quantity seized? ”

The first and fourth questions go to both convictions. The second question relates only to the charge of possession of marijuana, and the third question concerns only the charge of possession of LSD.

Jurisdiction

Prior to trial appellant filed a motion to dismiss the indictment, stating as the ground, “That the alleged crimes set forth in the indictment were committed on or upon the Naval Air Station, Patuxent River, Maryland, a federal reservation, and not within the jurisdiction of this Court.” After a separate hearing before the trial on the merits, the motion to dismiss the indictment was denied. At that hearing the appellant himself testified and offered additional evidence through an official of the Naval Air Station. The State presented evidence through Deputy Sheriff Ronald Clark.

Since the appellant’s first question seems generally directed to the jurisdiction of the State to convict him on the charges made against him, and is not confined to the assertion of error by the trial judge in denying the pretrial motion to dismiss the indictment, we shall recite briefly all of the facts in the case relevant to the question of jurisdiction as they appear throughout the entire record.

Deputy Sheriff Clark described how he had obtained a search warrant on 22 October 1973 which commanded the search of Jon Crowley and of a certain motor vehicle described in the warrant which belonged to Jon Crowley. On that evening he, along with Deputy Sheriff Charles Kerr and some other persons, waited for the arrival of Crowley and his automobile, which according to their information would be returning from a weekend trip to Kentucky.

At about 3:00 A.M. on 23 October 1973, they saw the described automobile at the intersection of Routes 235 and 246. The Crowley vehicle made a turn at a stop light toward the entrance to the main gate of the Naval Air Station. Deputy Sheriff Kerr, driving an official but unmarked automobile, turned on emergency equipment and flashing lights and got behind the Crowley automobile. Crowley stopped at the main gate of the Naval Air Station by the sentry. The deputy sheriff pulled around and stopped in front of the Crowley automobile so that it could not go any farther. Deputy Sheriff Clark went to the driver’s side and Deputy Sheriff Kerr went to the passenger side. One or both of them identified themselves and ordered the occupants of the car to get out. Crowley got out the driver’s side. A front seat passenger and a rear seat passenger got out on the right side. The deputies “patted down” the three young men. Clark said he smelled marijuana and looked in the automobile while a door was open and saw a brick of marijuana on the floor of the back seat. One of the deputies backed the Crowley automobile out of the entrance and onto the grounds of an adjoining public school, where there was an overhead street light. The others walked to the school yard.

According to the deputy sheriffs, the vehicle was searched there and the brick of marijuana in the back and a number of other items were found. The three young men were then arrested. Nothing material to the charges in this case was found on Crowley's person.

Deputy Sheriff Clark said that he impounded the automobile, took it to the Sheriff’s office, and made a further search there. The search warrant and all of the associated papers were offered and received in evidence at the trial. The return, including the inventory of property taken pursuant to the search, was sworn to on 24 October 1973.

The vehicle was impounded, locked, and stored in the regular impoundment lot, which was maintained on a farm owned by the Sheriff. One week later, on 30 October 1973, Deputies Clark and Kerr made a further search of the automobile. In the trunk they found a large can of mechanics’ cleansing soap and, imbedded in the soap, they Arand a vial containing many capsules of LSD.

The appellant did not testify at the trial on the general issue but he did testify at the hearing on the motion to dismiss the indictment. He said that at the point where he stopped at the gate of the Naval Air Station, a deputy sheriff handed him a search warrant. He also said that he and his companions were frisked and handcuffed there before they walked to the parking lot of the school. He said that he traveled through St. Mary’s County and approached the Naval Air Station on Route 235. There was unrebutted evidence that the sentry gate was on federal property.

Some of the facts concerning the original confrontation between the appellant and the authorities were in dispute, but we feel that the question, as appellant puts it, whether the State of Maryland has jurisdiction over crimes committed upon federal property, is irrelevant. We shall assume that possession of LSD and possession of marijuana constitute violations of federal criminal statutes, and that Crowley was or would be subject to prosecution for possession of those substances at a place where the United States has exclusive territorial jurisdiction.

At argument below and here much was said about exclusive or concurrent jurisdiction on property of the United States within the State of Maryland. But it was not for federal crimes, nor for criminal acts committed within federal jurisdiction that the grand jury for St. Mary’s County indicted Crowley. He was indicted for violating, in St. Mary’s County, the criminal laws of the State of Maryland.

The contraband substances upon which the convictions involved here were based were both seized in St. Mary’s County, within the exclusive territorial jurisdiction of the State of Maryland, by deputies of the sheriff of St. Mary’s County. The motor vehicle from which the substances were seized was observed by both deputies on public highways of the State, within the territorial jurisdiction of the State. A momentary departure from, followed by immediate return to that territorial jurisdiction, all closely observed by the officers, in no way erases the illegal possession which was taking place on a continuing basis prior to that departure.

The place and the moment of appellant’s arrest, whether within or without the State’s territorial jurisdiction, and whether a lawful or an unlawful arrest, are immaterial. Nothing taken from his person was offered in evidence. The legality of the seizures of contraband from appellant’s automobile does not rest upon a search incident to an arrest.

The evidence shows that when the officers approached the automobile at the sentry gate they advised the occupants that they had a search warrant for the automobile. It further shows that at that location Deputy Clark smelled marijuana, and viewed, on the floor of the back seat, a brick of vegetable material which he thought was marijuana. No seizure was made, however, until the search of the vehicle, in the execution of the warrant, on the school parking lot, under the territorial jurisdiction of the State.

Appellant’s argument that a search and seizure warrant issued by a Maryland judge has no extra-territorial effect is sound, Gattus v. State, 204 Md. 589, 105 A. 2d 661 (1954); Asner v. State, 193 Md. 68, 65 A. 2d 881 (1949), but the premise for the argument is not sound. The premise is that the warrant was executed by a search and seizure on federal property. Regardless of what took place on federal land, it is clear to us from the evidence that the automobile was on land unquestionably within the territorial jurisdiction of the State when it was searched, and when numerous items of contraband found in that search, including the brick of marijuana, were seized.

We note that it is the asserted situs of the execution of the warrant, not its validity, that is questioned here.

We hold that the State had jurisdiction to indict and prosecute the appellant for violations, within the territorial jurisdiction of the State, of its laws relating to controlled dangerous substances. We hold further that the brick of marijuana which was received in evidence was lawfully seized from appellant’s automobile.

We have indicated that we considered it to be irrelevant in this case whether appellant was arrested while he was on federal land, and if he was, whether the arrest was lawful or unlawful. In Walker v. State, 237 Md. 516, 206 A. 2d 795 (1965), the Court of Appeals said, at 519:

“Moreover we have repeatedly held the fact that the arrest, even if illegal, would not of itself preclude a trial for and conviction of the offense charged. Matthews v. State, 237 Md. 384.”

This Court has frequently stated and applied the same rule. In Hammond v. State, 7 Md. App. 588, 256 A. 2d 768 (1969), cert. denied, 256 Md. 745 (1970), we said, at 594:

“It is settled that an illegal arrest does not affect the jurisdiction of the court, is not a ground for quashing the indictment, and does not preclude trial and conviction for the offense. Jones v. State, 5 Md. App. 489, 493 (1968).”

How appellant came or was brought from federal land to a place within the State’s territorial jurisdiction is equally irrelevant. Both federal and state decisions uniformly so hold. We said in Swann v. State, 7 Md. App. 309, 255 A. 2d 457 (1969), cert. denied, 256 Md. 748 (1970), at 310-11:

“Swann was apprehended in the District of Columbia by District policemen and returned to Prince George’s County by Prince George’s detectives. Swann contends that since he was improperly returned to Maryland, the Circuit Court for Prince George’s County lacked the necessary jurisdiction to try him.
“The Supreme Court of the United States held in Frisbie v. Collins, 342 U. S. 519, 522, 72 S. Ct. 509, 511, 96 L. Ed. 541, reh. denied 343 U. S. 937, 72 S. Ct. 768, 96 L. Ed. 1344 that:
‘This Court has never departed from the rule announced in Ker v. Illinois, 119 U. S. 436, 444, 7 S. Ct. 225, 229, 30 L. Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction”.’
“The Court of Appeals of Maryland has followed Ker v. Illinois, supra and Frisbie v. Collins, supra, see McGuire v. State, 200 Md. 601, 92 A. 2d 582, cert. den. 344 U. S. 928, 73 S. Ct. 497, 97 L. Ed. 714, Bell v. Warden, 215 Md. 614, 137 A. 2d 118, and Austin v. Director, 237 Md. 314, 206 A. 2d 145 and cases cited therein.”

Instructions to the Jury

In his instructions to the jury, the trial judge read to them from Code, Art. 27, § 286, the introductory sentence and part (1) of subsection (a), which described the crime charged in the first and third counts of the indictment. The part read included the phrase, “ * * * possess * * * in sufficient quantity to reasonably indicate under all circumstances an intent to * * * distribute * * * ”.

Among several requests for additional instructions was a request by the State that the jury be told that quantity itself may indicate the intention. In supplemental instructions the judge added, over objection by the defense, the comment that in drawing inferences from facts proved which reasonably indicate under all circumstances the existence of the requirement of intent, the quantity in possession may indicate an intent to distribute. Appellant excepted, stating that the supplementary comment put too much emphasis on quantity, at the expense of “all underlying circumstances”.

There was no error, and we see no undue emphasis.

Not only did the supplementary comment refer back to the original, the trial judge repeated the phrase, “under all circumstances”, and added what we have said several times, that quantity may indicate an intent to distribute. Ertwine v. State, 18 Md. App. 619, 308 A. 2d 414, cert. denied, 270 Md. 738 (1973); Williams v. State, 15 Md. App. 320, 290 A. 2d 542 (1972); Williams v. State, 14 Md. App. 619, 287 A. 2d 803, cert. denied, 265 Md. 744 (1972); Puckett v. State, 13 Md. App. 584, 284 A. 2d 252 (1971), cert. denied, 265 Md. 742 (1972); Graybeal v. State, 13 Md. App. 557, 284 A. 2d 37 (1971).

Identification of the Marijuana

Appellant argues that the marijuana seized from his automobile was not shown to be the variety proscribed by the Maryland statute. Code, Art. 27, § 277 (o) says that, “ ‘Marihuana’ shall mean all parts of the plant Cannabis sativa L. * * *.”

A forensic chemist who was called by the State as a witness, and who qualified as an expert, testified that he examined the brick of plant material, which was then identified as State’s Exhibit No. 3. He said it weighed 426 grams, and that each of three different analyses he performed showed positive for marijuana. He also examined the contents of a plastic bag, State’s Exhibit No. 4, which contained 19.262 grams of plant material. The same three tests each showed positive for marijuana.

On cross examination of the chemist appellant brought out that there are one or two other species of marijuana besides cannabis sativa. The witness said that he analyzed all marijuana as cannabis sativa, but he could not rule out that it would be one of the other two species. He said that in Exhibits 3 and 4 the material he examined was 90 per cent marijuana. In answer to a further question whether the marijuana he found was specifically the species known as cannabis sativa L, to the exclusion of the othér two species, he answered, “To me it is all cannabis sativa L”.

It is quite apparent that the weight to be given to the chemist’s opinion may have been seriously impaired by his other testimony. But the weight of the evidence was for the jury to determine. The evidence was sufficient to permit the jury to find that the plant material seized from appellant’s automobile was marijuana, as defined by law.

Seizure of LSD in Delayed Search

The final search of appellant’s automobile which resulted in the discovery and seizure of 240 tablets of LSD was made on an impoundment lot one week after the automobile was originally impounded. This search was not made under the authority of the search warrant which had been executed and returned. It was not made incident to an arrest, nor because of exigent circumstances. It was not made to take an inventory, nor to protect any personal property which may have been in the vehicle.

The search was, however, lawful under Code, Art. 27, § 297. Subsection (a) says,

“The following shall be subject to forfeiture and no property right shall exist in them:
(1) all controlled dangerous substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of the provisions of this subheading;
(4) all conveyances including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in (1) * * *.”

Subsection (f) provides

“In exercising the authority to seize motor vehicles pursuant to this section the following standards shall be utilized:
(1) a motor vehicle used in violation of this section shall be seized and forfeiture recommended to the State’s attorney when: * * *
(ii) although the violator has not sold or attempted to sell controlled dangerous substances in violation of this subtitle, an amount of such substances or paraphernalia is located which would reasonably indicate that sale is contemplated by the violator.”

Under this statute the authorities were directed to seize the motor vehicle and recommend forfeiture. The record is silent as to any subsequent proceedings under the forfeiture statute, but we are concerned only with the rights of the sheriff’s deputies on 30 October 1973 to make the search of the automobile then having been seized and impounded and subject to forfeiture.

In Cooper v. California, 386 U. S. 58, 87 S. Ct. 788, 17 L.Ed.2d 730 (1967), the police in California had made a warrantless search of an automobile one week after it had been in lawful custody pursuant to a forfeiture statute. The Supreme Court said, “We cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.”

Under the unusual circumstances here, we hold that the search which resulted in seizure of the LSD did not violate any of the appellant’s constitutional rights and that the LSD tablets were properly received in evidence.

Judgments affirmed.

Appellant to pay costs.

      . We find it unnecessary to decide here the effect of statutes retaining the jurisdiction of the State in lands acquired by the United States, by condemnation or otherwise, to the fullest extent permitted by the Constitution of the United States, and specifically for the service or execution of all process, civil or criminal, of the courts of the State. See Code, Art. 96, § § 17, 36, 47. See also Courts Art. § 6-101.