author: Murphy, C. J.,

text:
    BRUCE ALLEN WETHINGTON v. STATE OF MARYLAND
    [No. 118,
    September Term, 1967.]

      Decided February 23, 1968.

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

      Ronald G. Kane for appellant.

      Edward L. Blanton, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

At a jury trial held on February 10, 1967 in the Circuit Court for Prince George’s County, the appellant, Bruce Allen Wethington, was convicted of two counts of assault with intent to maim and two counts of indecent exposure. Two years concurrent sentences were imposed on each of the indecent exposure counts to run consecutively wtih five year concurrent sentences imposed on each assault count. The principal question presented on this appeal is whether the trial court committed reversible error by allowing the State’s Attorney to question the appellant, over objection, about a prior conviction of indecent exposure.

At the trial, the State presented evidence that the appellant exposed his penis to Mrs. Rogers on two occasions on June 11, 1966—once inside a Seven-Eleven store and again immediately after Mrs. Rogers left the store; that appellant then fled the scene in a vehicle, and was chased by Mrs. Rogers’ husband, James Rogers, and Ronald Furr, operating separate vehicles; that appellant fired several shots at the pursuing vehicles, striking each one; that appellant then abandoned his vehicle; and that he was thereafter identified by Mrs. Rogers as the individual who had exposed himself to her, and by Mr. Rogers and Ronald Furr as the person whom they had chased and who fired at them.

At the outset of the trial, appellant advised the court that one of the basic issues in the case would be that of identification, i.e., “* * * whether the man who exposed himself is the same man who did the shooting * * As the trial progressed it became apparent that appellant’s defense to the charges against him was (1) insufficient identification, coupled with an alibi that he was in the District of Columbia when the crimes were committed, and, in the alternative, albeit inconsistent, (2) that as to the assault counts, he was acting in self-defense when he fired at the pursuing automobiles since they were trying to force him off the road.

After appellant had testified on his own behalf on direct examination, a bench conference was requested by the State’s Attorney, at which time he indicated his intention to show that appellant had previously been convicted of indecent exposure. The court stated: “He can be asked if he is the same one, for means of identification.” Defense counsel then stated: “* * * you can’t use the past record to prove a conviction in this case * * * to show his propensity to commit a similar crime,” to which the court responded :

“He can be asked, 'Are you the same Bruce Allen Wethington who on September 26, 1958, was convicted of indecent exposure?’
“Now he can’t ask him ‘What is your record?’ or ‘Have you ever been convicted of indecent exposure?’ ”

The State’s Attorney then said:

“Motion being you have a man who is charged with assault with attempt to murder and assault with intent to maim. You have a man who has a conviction with assault with a deadly weapon. You have a man who was convicted of indecent exposure and a man who was convicted of escape. These are all in one degree or another considerable elements to what he is charged with here * *

Following this colloquy, the appellant was asked and gave an affirmative answer, over objection, to the question: “Are you the same Bruce Allen Wethington, who in 1958 was convicted of indecent exposure in Durham, North Carolina?”

The trial judge did not advise the jury that the evidence of the prior conviction for indecent exposure was to be considered solely for impeachment purposes, as bearing on appellant’s credibility as a witness, nor were any instructions to that effect requested by appellant, or included by the court in its charge to the jury. Whether it was the intention of the trial judge to admit the prior conviction of indecent exposure as substantive evidence or as impeaching evidence, or for both purposes, cannot be gleaned with certainty from the record before us. That the State’s Attorney was urging that such conviction constituted substantive evidence to prove guilt seems clear, just as clear as appellant’s position that the prior conviction could not be used to prove the present offense or to show propensity to commit similar crimes. Had it been the purpose of the trial judge to admit the prior indecent exposure conviction to impeach appellant’s credibility as a witness, we think such conviction, under the circumstances of this case, would have been admissible for that purpose as having some tendency to show that appellant was not to be believed under oath. See Cousins v. State, 230 Md. 2; Woodell v. State, 2 Md. App. 433; Huber v. State, 2 Md. App. 245. On the record before us, however, we conclude that the prior conviction in question was admitted on a basis other than that it constituted proper impeaching evidence.

The primary question for our determination, therefore, is whether, under the circumstances, the prior conviction for indecent exposure, not admitted for the purpose of impeachment, was otherwise admissible, and, if not, whether the admission of such evidence constituted reversible error.

It is well settled that proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing commission of the particular crime charged. Bell v. State, 234 Md. 254; Gray v. State, 221 Md. 286; MacEwen v. State, 194 Md. 492; Huber v. State, supra; Gorski v. State, 1 Md. App. 200; 29 Am. Jur. 2d Evidence, § 320, p. 366. The rule is not without exceptions, however, so that the prior conviction may be shown when it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of a crime on trial. Wentz v. State, 159 Md. 161, 164; Cothron v. State, 138 Md. 101, 110; Gorski v. State, supra; Hayes v. State, 3 Md. App. 4. However, evidence which simply indicates a disposition on the part of the accused to commit a crime is ordinarily excluded as irrelevant and untrustworthy since it tends to deflect the mind of the trier of facts from the single issue of guilt or innocence of the particular crime under consideration. Gilchrist v. State, 2 Md. App. 635; Huber v. State, supra. In other words, as stated in Berger v. State, 179 Md. 410, 414, the exception to the general rule “does not go to the extent of sanctioning the admission of evidence of the ‘propensity’ of the accused to commit crimes similar to that for which he has been indicted.” Another recognized exception to the rule that evidence of other crimes of a defendant are ordinarily inadmissible is that other sexual offenses committed with the same person are admissible to show a passion or propensity for illicit sexual relations with the person concerned in the crime on trial. Other like sexual crimes with other persons do not qualify for this purpose. Berger v. State, supra, at page 414; McCormick Evidence (1st Ed. 1954), § 157, pp. 328-29. See also Annotation, 77 A.L.R. 2d 841. Thus in State v. Negron, 374 S. W. 2d 622 (Mo. 1963), it was held that testimony of a witness other than the complaining witness that the defendant charged with indecent exposure had committed a similar offense about twenty days before the time of the charged offense was inadmissible, and the admission thereof was plain error affecting the substantial rights of the accused.

The trial judge expressed the opinion that the prior conviction of indecent exposure was admissible “for means of identification.” As heretofore indicated evidence of the commission of other crimes is admissible in a proper case and as an exception to the general rule where the sole purpose of such evidence is to establish identity of the accused as the perpetrator of the crime charged. See 29 Am. Jur. 2d Evidence, § 322, p. 372. So in Bevans v. State, 180 Md. 443, a prosecution for possession of burglarious implements with intent to break and enter certain structures, where the defendant denied all connection with the automobile in which the instruments were found, a paper found in the automobile containing a record of convictions in traffic court of the defendant was admissible, not for the purpose of showing former conviction, but to show his connection with the automobile. And in Ward v. State, 219 Md. 559, a prosecution for forging and uttering a worthless check which was allegedly cashed by a store which sold a bottle of whiskey in connection therewith, evidence as to the cashing of air identically forged check at a nearby liquor store at the same time was relevant on the element of guilty knowledge, and on the issue of scheme or plan to cash a series of identically forged checks to obtain whiskey and money, and on the question of defendant’s identity. See also Cole v. State, 232 Md. 111.

In the instant case, however, we can perceive no permissible inference from appellant’s prior conviction for indecent exposure which would tend to identify him with the commission of the crimes for which he was being tried. The prior conviction sought to be introduced occurred a full eight years before the present crime, did not involve the same prosecuting witness, and occurred in another jurisdiction. The time and distance factors clearly negate any connection between the two crimes, and there was no attempt to show that the two criminal acts were uniquely similar in the manner and mode of their perpetration. In our view, appellant’s prior conviction for indecent exposure shows only, under the circumstances of this case, that he had a disposition or propensity to commit that crime. That such evidence is inadmissible, other than for impeachment purposes, is, as previously indicated, entirely clear.

We have no way of calculating the consideration given by the jury to the evidence of appellant’s prior conviction for indecent exposure. We cannot know, therefore, whether the jury considered such evidence as substantive proof of appellant’s guilt on the presently charged indecent exposure counts, or merely as evidence impeaching appellant’s credibility as a witness. Since the principal thrust of appellant’s defense was insufficient identification, coupled with an alibi that he was not in the State when the crimes were committed, a showing of the prior conviction for indecent exposure may well have been afforded paramount prominence in the jury’s deliberations. That the jury was free to consider the prior conviction as substantive proof of guilt is clear, since it appears to us that the trial judge admitted the evidence on a basis not excluding its use for that purpose. Had a cautionary instruction been given to the jury, stating that they could only consider the prior conviction as bearing upon appellant’s credibility as a witness, we would find no error in its admission. See Huber v. State, supra. That appellant did not request such an instruction, either at the time the evidence was admitted, or after the instructions were given to the jury, does not, in our view, operate as a waiver of his specific and well grounded objection that the evidence could not be introduced for the purpose of proving the commission of the offenses presently charged. This is not a case, as in Debinski v. State, 194 Md. 355, where a general objection to evidence was held properly overruled where the evidence was properly admissible for any purpose. Here, appellant’s objection was specifically aimed at excluding the prior conviction as substantive proof of guilt; the evidence was nevertheless admitted without limitation or qualification of its use for that purpose. Under these circumstances, we hold that the unqualified admission of such evidence in the face of appellant’s specific objection thereto constituted reversible error (see Mulcahy v. State, 221 Md. 413, at page 426), not only as to his convictions on the indecent exposure counts, but also as to his convictions for assault with intent to maim which grew out of the indecent exposure incident and which were closely connected therewith.

Judgments reversed; case remanded for a new trial.

      . In the same manner the State’s Attorney proved, over objection, that appellant had been convicted in 1965 of assault with a deadly weapon, but the court sustained a further objection to a question by the State’s Attorney as to whether appellant had also been convicted of escape.


source: Caselaw Access Project

author: Orth, J.,

license: Public Domain

text:
    JAMES ROBERT JENKINS v. STATE OF MARYLAND
    [No. 116,
    September Term, 1967.]

      Decided February 27, 1968.

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

      Fred Warren Bennett for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A.

      Marshall, Jr., State’s Attorney for Prince George’s County, and James B. Kenkel, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

On June 29, 1962 an indictment was returned against the appellant charging him with “assault with intent to kill and murder” and assault and battery. On December 10, 1962 he was tried in the Circuit Court for Prince George’s County, by the court sitting without a jury. The court rendered its verdict as follows:

“* * * ¿he defendant is guilty of assault with intent to kill, being the first count of the indictment. We would think since the assault and battery is part of the element of assault with intent to kill that the second count should show not guilty as to the second count.”

The appellant was sentenced to imprisonment for a term of five years and, thereafter, by duly conducted proceedings, committed to Patuxent Institution. On December 22, 1966, on hearing under the Uniform Post Conviction Procedure Act, the court granted the appellant a new trial.

On February 27, 1967, upon presentment for assault for intent to murder, the appellant was charged, under an indictment containing three counts, with assault with intent to murder, assault with intent to prevent lawful apprehension, and assault and battery. A pre-trial motion to dismiss the indictment on the “ground of double jeopardy” was denied after hearing on April 6, 1967. On May 9, 1967, the appellant was tried in the Circuit Court for Prince George’s County and was found guilty by a jury on the first count charging assault with intent to murder. The charge under the second count, assault with intent to prevent lawful apprehension, was abandoned by the State at the time of trial and the silence of the jury on the third count, charging assault and battery, was the equivalent of a verdict of not guilty. Jackson v. State, 231 Md. 591; Glickman v. State, 190 Md. 516; See Note 1, Agresti v. State, 2 Md. App. 278, 280. A motion in arrest of judgment and to dismiss the indictment on the grounds of “double jeopardy, res judicata and collateral estoppel” was filed on May 11, 1967. Upon hearing on May 26, 1967, the motion was denied by a majority of a four judge panel, Chief Judge J. Dudley Digges, dissenting. The appellant was sentenced to imprisonment for a term of five years from December 10, 1962, and ordered to be confined to Patuxent Institution to determine whether he was a defective delinquent.

On appeal the appellant claims error in the denial of the motion to dismiss the indictment made prior to trial and in the denial of the motion in arrest of judgment and to dismiss the indictment made after the verdict. He contends that the second prosecution was barred by the prohibition against double jeopardy and by the doctrine of res judicata or collateral estoppel.

DOUBLE JEOPARDY

The provision in the Fifth Amendment to the Constitution of the United States, that no person shall “* * * be subject for the same offense to be twice put in jeopardy of life or limb * * *”, is not applicable to state court prosecutions under the due process clause of the Fourteenth Amendment. Gee v. State, 2 Md. App. 61. In Maryland protection against double jeopardy is available by way of the common law. Smith v. State, 1 Md. App. 297. The common law meaning of double jeopardy was stated in Hoffman v. State, 20 Md. 425, 434:

“At common law it meant nothing more than that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offense.”

In Boone v. State, 3 Md. App. 11, we found this meaning to be controlling in this State.

The Verdict of Guilty of Assault with Intent to- Kill at the First Trial

The verdict of guilty of “assault with intent to kill” was an improper verdict. In Maryland there is no specific common law or statutory crime of “assault with intent to kill” and the crime of assault with intent to murder is not one and the same offense. As the appellant was found guilty of a crime which was not known to the law of this State, the verdict and sentence were null and void. Marks v. State, 230 Md. 108. Thus, applying the rule controlling in Maryland, since there was no final verdict rendered on the offense of assault with intent to murder at the first trial, the appellant was not thereby jeoparded on that offense and was not twice put in jeopardy thereon at his second trial. We cannot agree with the appellant’s contention that the verdict of “guilty of assault with intent to kill * * * impliedly acquitted the appellant of the greater offense of assault with intent to murder”. Not only was there no proper verdict, it being null and void, but “assault with intent to kill” cannot be a lesser crime included in the greater crime of assault with intent to murder, as he urges, since “assault with intent to kill” is no crime at all in this State. That it may be a crime in other jurisdictions is in no way material.

The Acquittal of Assault and Battery at the First Trial

(1) With Respect to the Charge of Assault and Battery at the Second Trial

In Boone v. State, supra, we stated that it has been established that an accused cannot be again tried for an offense after he has been acquitted of the offense. We quoted State v. Shields, 49 Md. 301, 303 (quoted in State v. Adams, 196 Md. 341, 348):

“It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.”

See also Barger v. State, 235 Md. 556 and cases cited therein. We think that it was error for the court to allow the appellant to go on trial the second time for the offense of assault and battery in view of his acquittal on that charge at the first trial, but since the verdict of the jury at the second trial was the equivalent of not guilty of that offense, we find that the appellant was not prejudiced thereby and will not reverse the judgment for that reason.

(2) With Respect to the Conviction of Assault with Intent to' Murder at the Second Trial

. When a lesser offense is a necessary part of the larger, a conviction or acquittal of the lesser crime bars a prosecution for the greater. Johnson, etc. v. State, 238 Md. 528, 541. Although assault is an essential ingredient of assault with intent to murder, it does not necessarily follow that in a given case there cannot be an assault and battery separate and distinct from the element of assault necessary to the proof of the greater crime. On facts so showing there would not be a merger and a conviction on both charges would be proper. In Tender, etc. v. State, 2 Md. App. 692, we discussed the doctrine of merger of offenses and stated that the modern concept is whether one crime necessarily involves the other. So a lesser offense, necessarily involved in a greater offense, is merged into the greater offense. The application of the rule is not in the abstract but by the evidence in each case; each case must be considered on its facts and the rule applied with relation to them. In Tender we found that an assault did not merge into robbery with a deadly weapon, robbery, or assault with intent to rob as there was evidence sufficient for the trial court to find that there was an assault separate and distinct from the greater offenses. In Cottrell v. State, 1 Md. App. 520, we found that assault and battery did not merge into robbery with a deadly weapon where evidence showed that the victim was physically beaten by the perpetrator, tlie beating not being a direct incident of the robbery.

On the evidence in the instant case we think that the assault and battery was not a necessary part of the assault with intent to murder. In the first trial of the appellant, in which the court rendered a verdict of not guilty on the charge of assault and battery, there was evidence sufficient to show that there was an assault and battery separate and distinct from the assault with intent to murder (charged as assault with intent to kill and murder) . There was testimony of a police officer that he answered “a call of disorderly” at 5307 U Street, Bradbury Heights and that after talking to the complainant, the officer, about to leave, was standing by the stairway that leads to the basement when the appellant said, “Shoot me, you rotten son of a B,” and attacked the officer. They were fighting at the top of the stairs and fell down the stairs to the basement. The appellant had committed an assault and battery on the officer at this point. The battle continued. The appellant grabbed the officer’s revolver from its holster and pointing it at the officer said, “I’ll kill you, you S. B.” By these actions the appellant committed an assault with intent to murder. The officer was able to knock the gun from the grasp of the appellant and ultimately subdued him. We note also that battery is not a necessary ingredient of assault with intent to murder. The assault and battery count charged that the appellant made an assault on the officer and “* * * did beat, bruise, wound and ill-treat to the great damage * * *” of him. None of these allegations with regard to the battery need be shown to prove assault with intent to murder. So the assault and battery was a separate and distinct offense from the greater offense and the proof of the assault and battery was incidental to and not a necessary ingredient of the greater offense. Since the lesser offense of assault and battery was not a necessary part of the larger offense of assault with intent to murder, the acquittal of the lesser crime did not bar a prosecution for the greater. At the first trial, the lower court said, upon finding the appellant guilty under the first count of “assault with intent to kill”, “We would think since the assault and battery is part of the element of assault with intent to kill that the second count should show not guilty as to the second count”. Reasons for the rendering of a verdict are not admissible, whether the verdict be by a jury or a judge, State v. Coblentz, 169 Md. 159, but resort may be had to what a judge said in order to interpret what he did, Johnson, etc. v. State, supra, p. 544, note 3. It is clear, of course, that the lower court found the appellant not guilty of assault and battery, but upon the incorrect assumption that assault and battery are necessarily essential elements of “assault with intent to kill” (or murder).

RBS JUDICATA

The appellant contends that the doctrine of res judicata or collateral estoppel barred the State from trying him again. Assuming that these doctrines are applicable, our holding that the retrial on the offense of assault and battery did not so prejudice the appellant as to compel the reversal of the judgment prevails. The basis of this contention with respect to the retrial on the offense of assault with intent to murder is that “the crime of assault and battery is a necessary part of the larger offense of assault with intent to murder.” We have found on the evidence in the instant case that it was not. There being no sound basis for the contention, it fails;. We find no error in the motion to dismiss the indictment made prior to trial or in the motion in arrest of judgment and to dismiss the indictment made after verdict.

Judgment affirmed.

      . Since in Maryland the double jeopardy rule is a part of the common law, it may be changed by statute. But see Chapter 729, Acts of 1967 (Md. Code [1957], Art. 5, § 30) by which the Legislature took away the right of the State, previously granted, to appeal in a criminal cause from a judgment of a justice of the peace or trial magistrate of a county. Compare Md. Code (1964 Repl. Vol.), Art. 52, § 13 b.

        . We do not reach the question concerning the effect of an acquittal of assault and battery where there is a valid merger into a charge of assault with intent to murder and the latter conviction is set aside.


text:
    BALLARD ROGER BAKER v. STATE OF MARYLAND
    [No. 119,
    September Term, 1967.]

      Decided February 27, 1968.

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

      Richard K. Jacobsen, with whom was Anthony J. Sacco on the brief, for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Primee George’s County, and Robert J. Woods, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellant was convicted of burglary by a jury in the Circuit Court for Prince George’s County on March 17, 1967, and sentenced to twenty years in the Maryland Penitentiary. Immediately following the imposition of this sentence, appellant pleaded guilty to a charge of grand larceny under another indictment, and was sentenced to fifteen years in the Maryland Penitentiary, to run concurrently with the prior sentence for burglary. On this appeal from both convictions, appellant contends, as to the burglary convictions, (a) that the lower court erred in failing to propound certain questions to prospective jurors oil voir dire, (b) that the police line-up was not fairly conducted, (c) that illegally seized evidence was admitted at trial, and (d) that the evidence was insufficient to support the conviction. He further contends, apparently as to both convictions, that the sentencing procedure constituted a denial of due process in that the trial judge relied on matters not in evidence and not proven at trial when imposing sentence.

The evidence adduced at the trial indicated that at about 2:00 a.m. on December 31, 1966, Mrs. Bida Williams, after hearing tiie door in her house open and dose, discovered a man in the basement of her home. Mrs. Williams testified that the door through which the man had entered was unlocked but closed; that she observed him in the light at distances varying between four to twenty-five feet; that he was wearing a tan short waist Eisenhower jacket, light colored pants, and a red plaid hunting hat; that the man kept his back to her at all times and she did not see his face; that he told her in a “hillbilly voice” that he was in the wrong house, and that he left the premises without taking anything and without further incident.

The evidence further showed that following Mrs. Williams’ report of the crime to the police, Detective Joseph Vasco initiated an investigation, as a result of which he placed appellant under surveillance, over a six day period, thereafter arresting him without a warrant on January 13, 1967 in a wooded area in Bladensburg, Maryland.

Appellant was placed in a police line-up after his arrest and was identified by Mrs. Williams as the individual whom she had seen in her basement. She testified that her identification of the appellant was based on the clothing he was then wearing, his stance, voice, height and weight. She identified appellant again at the trial.

Appellant requested the court at the outset of the trial to ask prospective jurors on voir dire whether they were related to any police officer and whether they knew either the State’s or appellant’s attorney. The court declined to propound these questions as phrased, but instead asked the jurors whether they knew either the appellant, Mrs. Williams, or Detective Vasco, and if any of them had been recent clients of either attorney. We see no error in the court’s failure to propound the questions requested by appellant. The purpose of the voir dire examination is to ascertain the existence of cause for disqualification and for no other purpose. Giles v. State, 229 Md. 370. Neither mere acquaintance with an individual or group, nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause. Goldstein v. State, 220 Md. 39. The question as to the connection of any juror with the attorneys did not have to be asked, Brown v. State, 220 Md. 29, 34, nor did the question as to the relationship of the jurors to any police officers, Borman v. State, 1 Md. App. 276, 278-279.

Appellant’s contention that the police line-up was unfairly conducted is seemingly based on the fact that he was dressed in the same clothing, except for a different hat, that he was alleged to have worn when observed by Mrs. Williams in her home; and, further, that Mrs. Williams was told by Detective Vasco, prior to viewing the line-up, that he had been tracking “this man” and that “he assumed that he was the one that they were looking for.” While the circumstances under which the line-up was conducted leave much to be desired, we are satisfied from the record before us that Mrs Williams’ identification was predicated on her close observation of appellant’s posture, stance, height and weight, and of his voice which she heard again at the line-up, and not alone or primarily on the basis of the clothing that he was wearing in the line-up. Mrs. Williams identified photographs of the line-up at the trial, and of appellant standing therein. These photographs were introduced into evidence without objection and, additionally, appellant made no objection to the testimony of Mrs. Williams relative to her identification of appellant at the line-up. We, therefore, hold that the line-up was not so conducted as to affront any of appellant’s constitutional rights, and, furthermore, that since the question was not raised below, it is not properly before us on appeal. Maryland Rule 1085.

Appellant further contends that his arrest was illegal and that certain wearing apparel and a flashlight taken from him at the time of his arrest should not have been admitted into evidence at the trial. This contention, however, is not properly before us on appeal, and we decline to consider it, as there was no objection to the introduction of the evidence. To preserve an issue on appeal in regard to the admissibility of evidence, there must be an objection made to the question eliciting the allegedly objectionable answer, Culver v. State, 1 Md. App. 406. The rule is not different where evidence alleged to be illegally seized is involved, since Mapp v. Ohio, 367 U. S. 643, recognized that State procedural requirements to raise or preserve the question may still be respected. See Porter v. State, 230 Md. 535; Gaudio v. State, 1 Md. App. 455; Maryland Rule 1085.

Nor do we think that there is merit to appellant’s contention that the evidence was insufficient to support the burglary conviction. The fact that Mrs. Williams never saw appellant’s face goes to the weight of the evidence to be attached to her identification and was a question for the determination of the jury. That she had ample opportunity to observe the appellant’s height and weight, posture, stance, speech, and clothing, is clearly supported by evidence in the record. That there was legally sufficient evidence of a breaking and entering in the nighttime is likewise clear, and whether it was done with the intent to commit a felony was a matter for the jury’s determination under the facts and circumstances of the case. We think there was sufficient evidence to go to the jury and, therefore, find no error in the court’s denial of appellant’s motion for acquittal made at the end of the entire case

Appellant’s final contention is that he was denied due prcoess of law when the trial judge, after verdict, imposed sentences based, in part at least, upon considerations not in evidence and not proven at trial. The record shows that immediately after appellant was convicted by the jury on the burglary charge, the trial judge, after ascertaining that appellant was ready for sentencing, was informed by the State that appellant had been convicted of burglary in 1942 and sentenced to four years, and was again convicted of burglary in 1960 and sentenced to seven years in the Maryland Penitentiary. The trial judge then proceeded to sentence appellant on the burglary conviction, stating at the outset that he was convinced of appellant’s guilt; that he thought appellant was a professional burglar and that considering the testimony at the trial, “between the lines, and filling in the gaps where objections stopped the testimony,” he thought that appellant “had a concerted plan of going around houses here in Prince George’s County and entering where you could, without forcing anything, and stealing whatever you could carry away.” The trial judge further stated that it was difficult for him to appreciate why anyone would choose such a livelihood but that appellant seemed to have done so; but that in Prince George’s County “We don’t put up with that.” The court expressed the view that appellant could not be rehabilitated and he was sentenced on the burglary conviction to the maximum term of imprisonment for that offense, namely twenty years.

It appears to us that what the trial judge had in mind when he spoke of considering the testimony “between the lines” and “filling in the gaps where objections stopped the testimony” was the testimony of Detective Vasco who indicated that burglaries similar to that of the Williams’ home had occurred on December 31; that he had, through investigation, undertaken to develop a suspect whose modus operandi was the non-forceful entry into homes through unlocked doors; and that as a consequence of his investigation, appellant was placed under surveillance for six days and thereafter arrested, apparently while on his way to commit another burglary. There was also testimony, the substance of which was cut off by an objection, which tended to indicate that Mrs. Williams’ neighbor’s home had also been burglarized on the same night. In addition, there was testimony that Detective Vasco had been “tracking” appellant and that he assumed that appellant was the man for whom they were looking.

It is well settled that imposition of a sentence in a criminal case in this State is a matter peculiarly within the province of ■the trial judge who hears the case and sees the witnesses and the accused. Reid v. State, 200 Md. 89; Gee v. State, 2 Md. App. 61. The length of the sentence is therefore not ordinarily reviewable on appeal, if it is within the statutory limit and not dictated by passion, prejudice, ill will or any other unworthy motive. James v. State, 242 Md. 424; Logan v. State, 1 Md. App. 213. The sentencing judge may, of course, after verdict, inquire into the past criminal record of the defendant and hear evidence and receive reports in aggravation or mitigation of punishment; the inquiry of the judge is not limited by the strict rules of evidence and he is invested with wide discretion in determining the sentence to be imposed. Purnell v. State, 241 Md. 582; Farrell v. State, 213 Md. 348. In other words, 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 sentence that should be imposed, so that he may consider information obtained outside the courtroom and from persons whom the defendant has not been permitted to confront or cross-examine. Scott v. State, 238 Md. 265; Costello v. State, 237 Md. 464; Driver v. State, 201 Md. 25.

But nothing in these rules immunizes the procedure pursuant to which an accused is sentenced after verdict from scrutiny under the due process clause of the Fourteenth Amendment to the Federal Constitution. Williams v. New York, 337 U. S. 241; Townsend v. Burke, 334 U. S. 736. So, in Costello v. State, supra, where it was contended that the procedure in the determination of the sentence violated due process of law, the court held at page 469 that such a contention would be reviewable on appeal “as an exception to the general principle.”

In Walker v. State, 186 Md. 440, it was held that it was not proper for the trial judge, in imposing sentence, to consider charges of which the defendant had been acquitted. And, in Ptirnell v. State, supra, it was held, in effect, that in sentencing a convicted defendant, the trial judge should not consider accusations of crime which the defendant did not admit, although in Scott v. State, supra, a case involving revocation of probation proceedings, which the court found similar to the original sentencing process, it was held that the trial judge, in determining whether to revoke the defendant’s probation, could properly consider clear evidence of defendant’s guilt of a crime of which he had been acquitted, where such evidence had not been presented to the trier of fact. But in Driver v. State, supra, where a pre-sentence report of the chief medical officer contained a statement that the defendant was “rumored” to have raped a woman and approached a child for the same purpose, it was held, in effect, that the sentencing court should not “give consideration to anything based only upon rumor.” And in Costello v. State, supra, at page 475, it was held that besides the general prohibition against considering evidence that is not within the limits fixed by law, there is a specific requirement that any information that might influence the judgment of the sentencing judge, which was not received from the defendant himself or was not given in his presence, should (without necessarily disclosing its source) be called to his attention so as to-afford him an opportunity to refute or discredit it.

That a just sentence based on proper considerations is an essential element of a fair trial cannot be questioned. It is by no means clear to us that the sentencing judge did not, in imposing the maximum sentence on the burglary conviction, give prime consideration to the possibility that appellant, though neither charged nor convicted of other similar burglaries in Prince George’s County, was nevertheless guilty of committing them, as implied by Detective Vasco’s testimony. We cannot ascertain with certainty from the record before us whether the trial judge was influenced by such an impermissible consideration in fixing the length of the sentence, both as to the burglary and grand larceny convictions. If he was, and if any part of the sentence is attributable to his consideration of such data, we think the appellant would have been denied due process of law in the sentencing process under the Fourteenth Amendment to the Federal Constitution.

While we think there was legally sufficient evidence from which the jury could properly find appellant guilty of the burglary of Mrs. Williams’ house, and there is no contention that appellant’s guilty plea to the grand larceny count was not voluntarily made, we must nevertheless remand the case for the limited purpose of having the trial judge reconsider the sentences imposed on both convictions in accordance with the views herein expressed, and without consideration of appellant’s possible involvement in other burglaries for which he was neither charged nor convicted, and which he did not admit.

Judgments of conviction of burglary (Criminal Trials No. 6804) and grand larceny (Criminal Trials No. 6805) affirmed; cases remanded for the limited purpose of redetermination of the sentences imposed not inconsistent with the views expressed in this opinion.


author: Per Curiam.

text:
    WAYNE TIMOTHY TROUT v. STATE OF MARYLAND
    [No. 123,
    September Term, 1967.]

      Decided February 27, 1968.

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

      Donald J. Gilmore for appellant.

      Thomas S. Glass, Special Attorney, with whom were Francis B. Burch, Attorney General, Prank H. Newell, III, State’s .Attorney for Baltimore County, and Richard D. Byrd, Assistant Slate’s Attorney for Baltimore County, on the brief, for ■appellee.
   Per Curiam.

The Appellant, Wayne Timothy Trout, was convicted of second degree murder in the Circuit Court for Baltimore County, by Judge John E. Raine, Jr., sitting without a jury, and sentenced to eighteen years in the Maryland Penitentiary.

In this appeal, the sole question is whether the evidence was .'legally sufficient to sustain the conviction.

The record indicates that on March 24, 1966, at approximately 6 :00 P.M., Mrs. Virginia Trout, the wife of the Appellant, was fatally wounded by a .22 caliber bullet that penetrated the cavity of her left eye on an upward trajectory and at an ■angle of about 50 degrees from left to right.

A downstairs neighbor of Mr. and Mrs. Trout, Mr. Joseph Sullivan, testified that on the evening in question he heard a noise and then heard footsteps running across the floor upstairs and down the steps. The Appellant then came to the back ■door of Mr. Sullivan’s apartment and said that his wife had been fooling with a gun and that the gun “went off” and asked Mr. Sullivan to call an ambulance. Having called the ambulance, Mr. Sullivan again met the Appellant coming down the stairs with his four year old daughter and a pistol in his hand. The Appellant’s daughter and the gun were then taken by Mr. Sullivan to his mother’s house. He then returned to the Trout apartment as the ambulance arrived. When the police reached the scene they placed both Mr. Sullivan and the Appellant in the Sullivan apartment where they were kept for approximately an hour and a half before being taken to the Towson Police Station.

The testimony of several witnesses indicated that the Appellant was hysterical, sobbing and completely bewildered. He was so upset that as late as 7:30 P.M. he apparently was not capable of giving his own name. For a period of several hours following Mrs. Trout’s death the Appellant repeatedly stated that his wife was twirling the pistol on her finger and the pistol discharged, causing her accidental death.

Testifying at the trial the Appellant stated that his four year old daughter was playing with the pistol and it was discharged accidentally when he attempted to take the pistol away from her.

Mr. George A. Berley, a weapons expert employed by the Federal Bureau of Investigation, testified concerning the mechanical functioning of the pistol which fired the fatal shot. He stated that the slide on the top of the automatic pistol had to be pulled back to cock the pistol; that the trigger had to be pulled and held in order to discharge the bullet; and that in his opinion, the pistol could not have been discharged by twirling it on a finger.

Dr. Rudiger Breitenecker testified for the State that in examining the body of the victim, he found no evidence of powder or burning on the outside of the bullet wound but found abundant evidence of powder on the inside of the wound. Dr. Breitenecker stated that this fact proved that the pistol was discharged from either a position of direct contact with the victim’s head or from a position within a fraction of an inch thereof.

On the facts presented the trial court rejected the possibility that the Appellant’s four year old daughter could have fired the gun. The Court also rejected as physically impossible the proposition that the victim could have inflicted the wound upon herself by twirling the gun on her finger. The trial court stated, “It therefore left this defendant, by a process of elimination, as being the person who fired the fatal shot. The Defendant spontaneously and as part of the res gestae kept repeating that the wife was fooling with the gun and it went off. Now he takes the stand and says that the little girl had the gun, that when he took the gun away from the child it went off and shot the wife. I do not believe that the shooting could have occurred in the manner that the defendant described.”

Since the instant case was tried by the lower court sitting without a jury, this court may review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless we are convinced that it was clearly erroneous, and due regard will be given to the ■opportunity of the lower court to judge the credibility of the witnesses. Md. Rule 1086. Spencer v. State, 1 Md. App. 264; Carwell v. State, 2 Md. App. 45.

The function of this Court is not to determine whether the ■defendant, in our opinion, was guilty beyond a reasonable doubt, but rather our function is to determine from the evidence and the proper inferences drawable therefrom, whether there was •sufficient evidence to warrant the finding of the lower court that the defendant was guilty beyond a reasonable doubt. Abney v. State, 244 Md. 444, and Spencer v. State, supra. Clearly the trial judge was under no obligation to believe the statements of the accused. Weaver v. State, 226 Md. 431; Tingler and Wright v. State, 1 Md. App. 389.

Applying the above principles of law to the facts as revealed by the record here, we find that the trial judge was not clearly in error in finding the Appellant guilty of second degree murder.

Judgment affirmed.


text:
    WILLIS C. GULLION v. WARDEN, MARYLAND PENITENTIARY
    [No. 56,
    September Term, 1967.]

      Decided February 28, 1968.

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

This is an application for leave to appeal from an order filed on May 12, 1967, by Judge John E. Raine, Jr., presiding in the Circuit Court for Harford County, denying relief sought under the Uniform Post Conviction Procedure Act.

Applicant set forth five grounds for relief in his original petition :

(1) He was denied the assistance of counsel at the time his confession was made.
(2) The admission of the confession against him violated the Fifth Amendment.
(3) His counsel was incompetent.
(4) The evidence at his trial was insufficient to support the verdict.
(5) His indictment and trial were unconstitutional under the rationale of Schowgurow v. State, 240 Md. 121.

(1)

The case of Escobedo v. Illinois, 378 U. S. 478 (1964) is not to be applied retroactively. Johnson v. New Jersey, 384 U. S. 719, (1966); Johnson v. Warden, 244 Md. 695. Since applicant’s conviction became final in 1960, long before the Escobedo decision, this will afford him no relief.

(2)

A voluntary confession may properly be admitted into evidence as it violates no constitutional rights. Thompson v. Warden, 233 Md. 643; Ferrell v. Warden, 241 Md. 432. The lower court found that the confession involved here was freely given without any compulsion, and we affirm this finding.

(3)

The contention that applicant’s trial counsel was incompetent was the principal contention advanced at the hearing and is the principal contention urged in the application for leave to appeal. In a thorough eight page application, the applicant’s attorneys set forth numerous points of error that they claim trial counsel committed during the trial. On the basis of this they urge that the entire record shows that applicant’s trial representation was poorly prepared and so inadequate as to deny the applicant due process of law.

The lower court delved thoroughly into the trial transcript and discussed the various allegations of error. It summarized its decision as :

“I conclude that the defense of this case may have been inept, uninspired, and it might not be speaking too harshly of the dead to say that in this Court’s opinion it was professionally inferior and it may well be that that stems from insufficient preparation. However, looking at the whole case I am not prepared to state that the representation by these two very well-known lawyers here in their home county was so inadequate as to amount to a denial of the constitutional right to counsel. I believe that there may have been errors in their defense, but, the test laid down by the Federal Court in the Smallwood case, and I had no direct citation for that before me, the test having been restated in several cases at 235 Maryland 662, 236 Maryland at 637 is that, was the representation so inadequate that the trial was a farce, and I do not believe that this trial was farcical.”

In Slater v. Warden, 241 Md. 668, the Maryland Court of Appeals held that “a Ending of fact on all questions dealing with competency of counsel properly presented in a petition for post conviction relief, is required.” The Court in stating that “the Maryland case law has been broadened,” saw the federal test as being whether “under all the circumstances of the particular case has the petitioner been afforded a genuine and effective representation,” as laid down in the cases of Turner v. State, 303 F. 2d 507 (4th Cir. 19621 and Turner v. State, 318 F. 2d 852 (4th Cir. 1963). This is the test now followed in this State and the so-called “farcical test” has been discarded. See Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700; Pressley v. Warden, 242 Md. 405; Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65.

When applying the standard of “genuine and effective representation” to the case at hand, we cannot say, as the lower court could not under the standard of farce, that counsel “was so inadequate as to amount to a denial of the constitutional right to counsel.” As the lower court stated, many of the errors claimed can be explained on the basis of trial tactics. These are not a grounds for relief. Tucker v. Warden, 243 Md. 331; Walls v. Warden, 242 Md. 401; Slater v. Warden, 241 Md. 668; McCoy v. Warden, 1 Md. App. 108; Norris v. Warden, 1 Md. App. 69. Thus we find the contention to be without merit.

(4)

Sufficiency of the evidence is not a proper subject for relief under the Uniform Post Conviction Procedure Act. Johnson v. Director, 243 Md. 708; Nixon v. Director, 1 Md. App. 14; Ross v. Warden, 1 Md. App. 46. This should have been raised on direct appeal.

(5)

The decision in Schowgurow v. State, 240 Md. 121 (1965) is not to be applied retroactively to cases that have become final before that decision. Since applicant’s conviction became final in 1960, this will afford him no relief. Young v. Warden, 245 Md. 76; Ross v. Warden, supra.

Application denied.


text:
    MELVIN HENRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 102,
    September Term, 1967.]

      Decided February 28, 1968.

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

This is an application for leave to appeal from an order filed on July 21, 1967, by Judge Robert I. H. Hammerman, sitting in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

As stated by Judge Hammerman in his memorandum opinion, the applicant raised the following contentions:

1. That petitioner was the subject of an illegal arrest for the reasons that:
a. He was not a resident of the house in which he was arrested,
b. The police had no probable cause to arrest him,
c. That the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession.
2. That the police gave perjured testimony at the time of trial.
3. That he was not properly represented by his court appointed lawyer.

Judge Hammerman stated that:

“Petitioner’s counsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time.”

The mere fact of an illegal arrest is not grounds for relief under the Uniform Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized as a result of the illegal arrest, this constitutes an allegation of an illegal search and seizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, we note that the lower court found that there was nothing in the testimony of the applicant to indicate that his arrest was illegal. Since applicant did not carry his burden of proof, the arrest must be considered as legal. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered.

Judge Hammerman states that the rule as to incompetence of counsel is “that it is only when the representation is so deficient as to make a farce out of the trial that an accused is entitled to a new trial.” Although this was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. Warden, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded “a genuine and effective representation.” Turner v. State, 303 F. 2d 507 (4th Cir. 1962); Turner v. State, 318 F. 2d 852 (4th Cir. 1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65.

However, even under this more comprehensive rule, the trial counsel for applicant was not incompetent. Judge Hammerman found that “the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. Quite the contrary in the case. The court feels that (counsel) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates.”

As to the second contention, we accept the lower court’s finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108.

Application denied.


text:
    CHARLES RICHARD FABIAN v. STATE OF MARYLAND
    [No. 131,
    September Term, 1967.]

      Decided February 29, 1968.

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

      Gerard Wm. Wittstadt for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Robert A. DiCicco, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

On March 13, 1967 the appellant was convicted in the Circuit Court for Baltimore County by the court without a jury under a criminal information charging that on January 17, 1966 he “* * * then and there being legally detained and confined in a place of confinement, to wit: the Baltimore County Jail, did escape, in violation of Article 27, Section 139 of the Annotated Code of Maryland, 1957 Ed. * * He was sentenced to imprisonment for a term of 2 years to run conseculively with a 4 year sentence previously imposed. He had been convicted of housebreaking and offenses relating to forgery in October 1965, elected to have the convictions invalidated under the decision in Schowgurow v. State, 240 Md. 121, and was returned to the Baltimore County Jail to await retrial. It was while he was awaiting the retrial that he allegedly escaped. Valid indictments being returned against him, he was again tried in March of 1966, convicted of uttering and received the sentence of 4 years.

At the trial on the escape charge there was evidence before the court that a bench warrant was issued for the appellant on December 14, 1965 directing the Sheriff to pick him up and bring him to court to answer a presentment for housebreaking. It showed on its face “Cepit Jail (the Baltimore County Jail), December 20, 1965.” The appellant was confined in Section B-8 of the Baltimore County Jail in “maximum security.” Section B-8 was an area consisting of a day room, where prisoners exercise and shower, and four separate cells, two containing four bunks each and two containing two bunks each. The area was secured by bars on three sides, with the cells on the fourth side. The doors to the separate cells were usually left open until about 9:30 P.M., at which time they were locked to confine the prisoners in the cells to which they were assigned. Prior to 9:30 P.M. all the prisoners assigned to the cells had access to the day room. The bars on one side of the day room were about four feet from a wall of the jail building, leaving a catwalk between the day room and the wall. In the wall were windows leading to the outside of the building. The windows were about three feet by five feet in size and each was covered with ordinary screening. A guard on duty at the jail on January 17, 1966 testified that about 7:10 P.M. all the prisoners assigned to B-8 were within that area and all the bars enclosing the area were intact. About 7:30 P.M. an alarm rang and he went to B-8 and saw that some of the bars along the catwalk were “bent and sawed.” He observed two prisoners “in the catwalk standing over the window.” He called to them to return inside B-8 and “two or three more men came up.” He got them all in the cells and locked the cell doors. He then made a check and found that the appellant and another prisoner were missing. The window screen had been removed and was lying in the catwalk. Sheets were tied to the window rod and were hanging out the window down the wall to the ground. One sheet had torn off and was on the ground. Another guard was “outside working in the greenhouse” about 7:30 P.M. when he heard “this awful noise.” He heard it again, looked out and saw sheets hanging from the window of the jail. He saw a “fellow coming down the sheet, and he was hanging on the window sill, and I hollered at him and he went back in.” This guard sounded the alarm. He went to B-8 and the appellant and one other prisoner were missing.

THE SUFFICIENCY OF THE EVIDENCE

The appellant contends that the evidence was not sufficient to sustain the conviction. He alleges that the evidence at best proved him guilty of prison breach and not escape, that the physical act of escape was not proved and that he was illegally detained or confined.

Prison Breach or Escape

The appellant urges that since the evidence “definitely showed that force was used, that is the cutting of the bars,” in effecting his departure, he was guilty of prison breach and not escape as charged. This argument is predicated upon the common law distinction between a prison breach and escape. In support of his argument the appellant refers, without discussion, to “Wharton’s Criminal Law, Vol. 2, Chapter XLIX” and Wharton’s Criminal Law and Procedure, Vol. 3, Chapter 51,” but to resolve the question presented by the contention it is necessary that we examine the common law, trace the history of the Maryland statute and review the decisions of the Court of Appeals on the subject.

Although minor offenses were punished under the ancient criminal law, the emphasis was on treason and felonies, punishable by forfeiture of life and lands and goods. Therefore, when escape was first considered as an offense, it was the custodian whose wilfullness or negligence made it possible, and not the prisoner, who was deemed to have incurred criminal guilt. The name of the crime committed by the jailer was “escape.” As developed in the common law, escape was of three kinds:

“1. By the person that hath the felon in his custody, and this is properly an escape; and 2. When the escape is caused by a stranger, and this is ordinarily called a rescue of a felon. 3. By the party himself, which is of two kinds, vis. 1. Without any act of force, and this is a simple escape. 2. With an act of force, vis. by breach of prison.” 1 Hale P. C. 590 as quoted in Perkins, Criminal Law (1957) Ch. 5, p. 428.

Today the term “escape” is usually used only with reference to the escaper. It is noted, however, that by statute it is a crime to aid or assist in an escape. Md. Code, supra, Art. 27, § 139. Considering escape only with relation to the escaper himself, at common law it meant the unauthorized departure of a prisoner from legal custody without the use of force. Prison breach was the unauthorized departure of a prisoner from legal custody accomplished by the use of force. Wharton, Criminal Law and Procedure (Anderson) Vol. 3, § 1367-1368. The statute de fragentibus prisonam, 1 Edw. II, Stat. 2, A. D. 1307, provided :

“Concerning Prisoners which break Prison, our Lord the King willeth and commandeth, that none from henceforth that breaketh of Prison shall have Judgment of Life or Member for breaking of Prison only, except the Cause for which he was taken and imprisoned did require such Judgment, if he had been convict thereupon according to the Law and Custom of the Realm, albeit in times past it hath been used otherwise.”

According to Lord Coke, having “Judgment of Life or Member” meant “being attained of felony” but the felony was within benefit of clergy. See 1 Hale, 612. The grade of prison breach, therefore, was a felony or misdemeanor according to the grade of offense for which the party was detained. Hochheimer, Law of Crimes and Criminal Procedure, 1st Ed. § 770, p. 475. Hochheimer refers to “force” as an actual breaking, although it may be of the slightest kind “such as accidentally displacing loose bricks while getting over prison walls.” Any place where a person was detained on a criminal charge was a “prison,” whether “the common gaol, the street, the house of the constable or of a private person.” It was immaterial whether the prisoner detained was under accusation or conviction and whether he was guilty or innocent. Alexander's Br. St., Vol. 1, p. 215; Hochheimer, supra, p. 475. On January 6, 1810, the General Assembly of Maryland passed Chapter 138 of the Acts of 1809, entitled, “An Act Concerning Crimes and Punishments.” The preamble read as follows:

“Whereas it frequently happens, that men resigning themselves to the dominion of inordinate passion, commit great violations upon the lives, liberties or property of others, which it is the great business of the laws to protect and secure, and experience evinces that the surest way of preventing the perpetration of crimes, and of reforming offenders, is by a mild and justly proportioned scale of punishments; therefore BE IT ENACTED * * * that the offenses herein after mentioned against the government and the supremacy of the laws, shall be punished in manner following * *

Section 32 provided :

“That if any such offender, sentenced to undergo a confinement in the penitentiary, shall escape, he or she shall, on conviction thereof, suffer such additional confinement and hard labour, agreeable to the directions of this act, and shall also suffer such corporal punishment, not extending to life or limb, as the court of oyer and terminer and gaol delivery for Baltimore County shall adjudge and direct.”

It is obvious that the statute, limited to those sentenced to undergo confinement in the penitentiary, did not encompass all the circumstances under which a person committed common law escape or prison breach by departure from lawful custody. So Chancellor Kilty, stating that the statute de fragentibus prisonam was not mentioned in the Act of 1809, “although there is a provision in the 32d section, as to escapes from the penitentiary, and in the 7th section as to fugitive felons—i. e. persons who had been convicted and condemned to serve and labour as criminals,” considered that the statute de fragentibus prisonam was proper to be incorporated into the common law of Maryland, “subject however to the direction contained in the 11th section of the act aforesaid (Act of 1809, ch. 138), in place of the benefit of clergy.” Kilty, Report of English Statutes (1811). The Acts of 1837, ch. 320, § 18 retained the limitation of escape to “any offender sentenced to undergo a confinement in the Penitentiary” and provided for “such additional confinement and hard labour, agreeably to the laws of this State, as Baltimore City Court shall adjudge and direct.” The Acts of 1927, however, made a material change. Chapter 374 repealed the former statute and re-enacted it to read as follows:

“If any offender or person legally detained and confined in the Penitentiary, or Jail, or House of Correction, or Reformatory, or Station House, or any other place of confinement, in this State, shall escape * * * he shall, on conviction thereof * * * be sentenced to such confinement * * * as the Court may adjudge, for not more than ten years.”

The Acts of 1943, ch. 25 clarified the provisions by specifying that the escaper shall, on conviction of escape, be sentenced, to confinement “for such additional period, not exceeding ten years, as the Court may adjudge.” The Acts of 1963, ch. 157 reduced the sentence for escaping from the Reformatory for Males, if the escape did not involve an assault, to confinement not to exceed three years. The Acts of 1966, ch. 628 made the crime a felony effective June 1, 1966.

We think it clear that the General Assembly in proscribing escape from lawful confinement, as now codified in Md. Code (1967 Repl. Vol.), Art. 27, § 139, did not intend a distinction between departure by force and a departure without, force. None of the acts establishing the law as now codified specified the use of force and we deem it significant that chapter 157 of the Acts of 1963 reduced the punishment for escape-from the Reformatory for Males if the escape did not involve-an assault, leaving the implication that other escapes involving-an assault are within the statute. Sufficient force may be shown by the assault of a guard even though no part of the prison building or enclosure is severed or broken. Wharton’s Criminal Law and Procedure, (Anderson) Vol. 3, § 1368, p. 760. Thus we feel that “escape” as used in Art. 27, § 139 encompasses departure from lawful custody from any place of confinement, by the use of force or without the use of force as known in the common law, and so includes the common law crime of prison breach. Words do not always retain their common law meaning when incorporated in a statute, Glickfield v. State, 203 Md. 400, and we do not feel that “escape” in the statute here considered means only the common law “simple escape.” The decisions of the Court of Appeals support this view. In Baker v. State, 205 Md. 42, the Court rejected the contention that “escape” must be construed in the light of its common law definition, holding in effect that the legislative intent shown was “to create a new crime analogous to an old one.” On at least two occasions convictions under the statute were upheld where the offense would have been prison breach at common law. In Ford v. State, 237 Md. 266 the prisoner “broke away from his guard and ran out of the courtroom.” In Slagle v. State, 243 Md. 435, departure from the Clifton T. Perkins State Hospital was effected by the cutting and removal of steel window bars from the room in which the appellant was detained. There is no merit to the contention that the evidence was not sufficient to show that the appellant was guilty of escape as charged on the ground that he was guilty only of prison breach.

The Physical Act of Escape

The allegation that the physical act of escape was not proved is based on the appellant’s claims, first, that the evidence showed merely that he had departed from the maximum security area and did not show that he left the jail building, and, second, that under the statute the escape must be “from those places so enunciated in the statute and not from any place within the enunciated institutions.” We do not agree with either premise.

First, it was clear that the appellant was not within the maximum security area after he was found to be missing and it appears that the only way he could leave that area and be missing was through the sawed and bent bars to the catwalk and from there out the window and down the sheets to the ground outside the jail proper. The evidence neither directly nor by inference, supports the argument that he still may have been in the jail building. There was testimony that the appellant had “got out,” that he was “brought * * * back” to the jail after-wards, and that “the police said about three hours later they picked both of them up, (the appellant and the other missing prisoner), and * * * kept them over at Headquarters,” returning them to Jail the next day “but he (the appellant) wasn’t back there that night.” We think that the evidence and proper inferences therefrom were sufficient for the trial court to find that the appellant departed from the jail proper.

Second, we think it immaterial whether or not the appellant departed from the jail proper in the face of the evidence clearly showing his departure from the maximum security area and the manner in which it was effected. In discussing the physical act of escape, Perkins, in his Criminal Law (1957), Ch. 5, p. 432, said:

“[A] prisoner may be guilty of an escape from his cell although unable to get beyond the prison walls. In other words the limits within which a prisoner may be required by law to remain, at a certain time, may be the walls of his cell, the walls of his prison, the boundaries of the prison farm, the immediate presence of his guard on the street or elsewhere, the general area of a project on which he is working, such as a road job, or some other. Whatever the limits may be for him at the time a departure therefrom is the physical part of an escape.”

We do not find the provisions of the statute under which the appellant was charged to be inconsistent with this statement. The crime proscribed is committed when “* * * any * * * person legally detained and confined in * * * jail * * * or any other place of confinement * * * shall escape * * *.” Md. Code, (1967 Repl. Vol.), Art. 27, § 139. Although the appellant was in the jail, he was required to remain within the maximum security area within the jail at the time of his departure. It was a place of confinement and he was confined in that area. By escaping therefrom he violated the statute, whether or not he left the jail building.

We think that the evidence was sufficient for the trial court to find the appellant committed the physical act of escape.

Legal Detention

By the terms of the statute, to commit the crime of escape the escaper must depart from legal detention or confinement. The appellant alleges that the setting of bail at $10,000 was excessive, being in violation of Article 25 of the Declaration of Rights of the Constitution of Maryland and that upon denial of his motion to reduce the amount of bail he was thereafter illegally detained. The allegation was not raised at the trial below nor in the appellant’s brief. It is raised in a “Supplemental Brief” submitted to this Court but there is no provision in the Maryland Rules of Procedure for the filing of a supplemental brief. The point is not properly before us and we need not decide it. Md. Rules, 1085. In any event the record is silent as to the proceedings with respect to the setting of bail and the denial of the motion for reduction as claimed. Although an accused who is charged with an offense, the maximum punishment for which is other than capital, shall be entitled to be admitted to bail, Md. Rules, 777a, we do not find, under the circumstances shown by the record, that bail in the amount of SI0,000 was excessive or that the appellant was illegally detained for that reason. We think that the appellant was legally detained at the time of his escape.

Having found that there was evidence legally sufficient to prove that the appellant committed the physical act of escape while legally detained, within the purview of Art. 27, § 139, the judgment of the lower court on the evidence was not clearly erroneous and we may not set it aside. Md. Rules, 1086.

THE RIGHT TO A PRELIMINARY HEARING

The appellant alleges that he was not afforded a preliminary hearing and contends that he has an “absolute right” to such a hearing. We do not agree. A preliminary hearing, relating as it does to the legality of an accused’s detention before his indictment, is not a necessary proceeding in obtaining a valid conviction. Ferrell v. Warden, 241 Md. 432, 436. We think it clear that an accused has no “absolute right” to a preliminary hearing whether he be indicted or charged under a criminal information. See Timbers v. State, 2 Md. App. 672; White v. Warden, 1 Md. App. 670, 673.

THE RIGHT TO INDICTMENT

The appellant was prosecuted for the crime of escaping from a place of legal confinement upon a criminal information filed against him. He contends that he had “the absolute right to be indicted by a grand jury.” A person charged with the commission of a misdemeanor, before indictment by the grand jury, may be prosecuted upon an information filed by the State’s Attorney. If he is charged with the commission of a felony he may not be prosecuted upon an information except upon petition signed by him whereby he waives his right to action by the grand jury. Md. Rules, 708, 709. “An accused need not agree to be tried upon an information when charged with a misdemeanor.” Landaker v. State, 234 Md. 489. We have found that the offense committed by the appellant was proscribed by the provisions of Code, Art. 27, § 139. The amendment making it a felony did not apply to crimes committed before June 1, 1966 (Acts of 1966, ch. 628, § 2) and the appellant was alleged to have escaped on January 17, 1966. Prior to the Acts of 1966 the grade of the offense was not designated by the legislature and in this State “only those (crimes) are felonies which were such at common law, or have been so declared by statute.” Bowser v. State, 136 Md. 342, 345, quoting Dutton v. State, 123 Md. 373, 378. We have found that the crime of escape as it existed in Maryland on January 17, 1966 was a statutory crime, although analogous to both common law prison breach and escape. Thus the grade of either prison breach or escape at common law did not control whether the statutory offense was a felony or a misdemeanor and not being then declared a felony by the statute, it was a misdemeanor. Being a misdemeanor the appellant could be prosecuted therefore upon an information unless such procedure was prohibited by the Constitution of this State or the federal constitution. “[T]here is no provision of the Maryland Constitution requiring an indictment in any case. Article 21 of the Declaration of Rights merely requires that an accused ‘hath a right to be informed of the accusation against him; to have a copy of the Indictment, or Charge in due time (if required) to prepare for his ■defense.’ ” State, ex rel Butler v. Warden, 195 Md. 713, 714. Although the Fifth Amendment to the Constitution of the United States provides in part that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on ■a presentment or indictment of a grand jury * * this provision has not as yet been held to flow to the states through the Fourteenth Amendment. Heath v. State, 198 Md. 455; United States, ex rel. Morford v. Hocker, 268 F. Supp. 864 (1967); State v. Linehan, 150 N. W. 2d 203 (Minn. 1967); State v. Crump, 412 S. W. 2d 490 (Mo. 1967); Goyer v. State, 131 N. W. 2d 888 (Wis. 1965). There is no merit to the contention that the appellant was denied a constitutional right to indictment.

SPEEDY TRIAL

At the trial the appellant moved to dismiss the information on the ground that he had been denied a speedy trial on the charge of escape. In support of the motion there was presented to the court that upon conviction of the appellant of uttering in March 1966 there was “some conversation” between counsel for the appellant at that trial and the assistant State’s attorney “that the escape count was not going to be tried, being that Mr. Fabian had been found guilty of the previous charge.” There was introduced into evidence a letter dated April 6, 1966 from the appellant’s counsel at the previous trial to the appellant relating “that the State’s Attorney’s Office advised (counsel) that the State does intend to prosecute all the parties that participated in the escape, and that a criminal trial will be held just as soon as the State’s Attorney’s office can conclude the necessary arrangements.” In denying the motion the lower court, noting that the “present State’s Attorney has elected to try this case as he has a perfect right to do,” said:

“The Court rules there was no undue delay of trial because the accused was not prejudiced in any way, shape or form by setting the case in for trial at this time. Fie was confined under a four-year sentence, which even with time off for good behavior or other benefits he would have to serve approximately one-third of his time, which would mean he would have to serve time past the present date of this trial under that conviction; and there has been no undue delay, and that’s the reason I’m overruling your motion.”

The appellant urges that the lower court erred in its reasons for denying the motion, claiming that it is not necessary that he show prejudice because “prejudice is presumed or necessarily follows from long delays.” He makes no claim that he was otherwise prejudiced.

The criminal information was filed against the appellant on January 25, 1966 and he was tried on the charge on March 13, 1967. During that period, in March 1966, he was tried and convicted on the uttering charge and was sentenced to. imprisonment for a term of four years. In his brief the appellant states that “his former attorney requested an immediate trial for him in April 1966, but that he was led to believe that the State would not prosecute all the parties involved in the ‘escape,’ particularly him, but that some would be prosecuted when the State could make necessary arrangements.” The record before us does not show a proper request for an immediate trial in April 1966 or thereafter or any other effort by the appellant to obtain a trial until the oral motion to dismiss the information on March 13, 1967. Further, the letter of April 6, 1966, introduced in evidence, stated, contrary to the allegation the appellant now makes, that “the State does intend to. prosecute all the parties that participated in the escape.” It makes no mention of a request for a speedy trial. Also on February 23, 1967 the appellant filed a motion for removal, which after hearing, was denied on March 1, 1967. There is no mention in the motion of a desire for a speedy trial. We cannot find from the record that the appellant made a proper demand for a speedy trial.

The term “speedy trial” is not defined in either the State or federal constitution and the provision in the constitutions has. not been implemented by State or federal statute. So the term is a relative one, leaving the determination as to whether or not an accused has been denied a speedy trial dependent upon the facts of each particular case, recognizing that the varied circumstances surrounding particular cases are innumerable, and, for the main part, unforeseeable. Jones v. State, 241 Md. 599.

In Jones, at p. 608, the Court of Appeals quoted 22 A. C.J.S. ■Criminal Law § 467 (4) :

“A speedy trial is, in general, one had as soon as the prosecution, with reasonable diligence, can prepare for it; a trial according to fixed rules, free from capricious and oppressive delays, but the time within which it must be had to satisfy the guaranty depends on the circumstances.”

It is established in this State that the right to a speedy trial guaranteed by Article 21 of the Maryland Declaration of Rights and Amendment VI to the Constitution of the United States may be waived by the accused. State v. Long and Nelson, 1 Md. App. 326. He may waive it by failing to demand a speedy trial, Harris v. State, 194 Md. 288, or having demanded such a trial he may waive it by his conduct thereafter, State v. Murdock, 235 Md. 116. Thus, as the appellant made no proper demand for a speedy trial, he waived the right to it. We think it apparent that the question of waiver becomes an issue only when there has been a delay in trial in the constitutional sense.. An accused is protected only against unreasonable or unnecessary delay. He is not entitled to an immediate trial as the State-is entitled to time to prepare for trial with reasonable diligence- and also to any reasonably needed time to conform with the trial! court’s calendar of criminal cases in the actual trial of the cases. Jones v. State, 241 Md. 599, 610. Whether the delay is capricious or purposeful and therefore unreasonable or unnecessary compels an evaluation of all the circumstances. We have noted that, exclusive of an express waiver, the accused may waive-his right to a speedy trial by failing to demand it or by his. conduct, even after a demand. The two must be distinguished, for if the delay is caused by his conduct, rather than a mere failure to assert the right, there may be no delay at all in the-constitutional sense, as we feel that only that delay should be computed which may reasonably be charged against the State. But we cannot accept that an accused’s inaction in failing-promptly to assert his right to a speedy trial conclusively waives his right to it, as it is our opinion that the constitutional, guarantees are not thus satisfied. We hold, therefore, that when-an accused does not make a demand for a speedy trial, he must, show that he has suffered actual prejudice caused by the undue delaying tactics of the State. Absent such showing, the-right to a speedy trial has not been denied him. See Bond v. United States, 233 A. 2d 506, 513 (D. C. App. 1967).

Both the Court of Appeals and this Court in holding that the right to a speedy trial had been waived by the accused have noted in some cases that no prejudice to him had been shown. And both Courts so holding in other cases have not discussed the matter of prejudice specifically, in all probability, because it had not been raised. In Dougherty v. State, No. 120, Initial Term, unreported, filed December 14, 1967, this Court, after finding that “the delay (in trial), if any, lies with the appellant,” said:

“Also, the appellant failed to present any evidence showing that he had been prejudiced, which is necessary where he seeks to invoke the constitutional doctrine of speedy trial.”

We think that the rule we have herein enunciated is in no way inconsistent with these cases.

In the instant case the lower court found that the appellant “was not prejudiced in any way, shape or form” by the failure to bring his case to trial until March 13, 1967. We agree. The appellant neither alleged nor showed any prejudice other than that which he claimed “is presumed or necessarily follows from long delays.” From the record before us we do not think that there was prejudice to the person of the appellant by reason of his detention while awaiting trial for he was detained in any event under his conviction. The additional anxiety of waiting for trial on the escape charge may be fairly taken as unconsequential, particularly in the absence of a showing to the contrary. Certainly his anxiety, if any he had, did not cause him to request that his trial be expedited. Nor do we feel that there was any prejudice to his defense. He made no claim that the delay impaired his ability to answer the charge in any way. We do not agree, as the appellant contends, that “prejudice is presumed or necessarily follows from long delays.” See United States v. Ewell, 383 U. S. 116; Smith v. United States, 118 U. S. App. D. C. 38, 331 F. 2d 784. In any event, the lower court found that there was “no undue delay.” We find nothing in the record to compel a finding to the contrary. But even assuming that the delay was undue, the appellant waived the right to a speedy trial by not making a proper demand for it and showed no prejudice accruing to him as a result of such delay. We find no error in the denial of the motion to dismiss the indictment.

Judgment affirmed.

      . The other prisoner, on trial with the appellant, changed his plea to guilty during the trial, was found guilty by the court and sentenced to imprisonment for a term of 2 years to run consecutively with a sentence he was then serving.

      . Article 5 of the Declaration of Rights of the Constitution of Maryland provides in relevant part “that the Inhabitants of Maryland are entitled to the Common Raw of England * * * and to the benefit of such of the English statutes as existed on the Fourth of July, seventeen hundred and seventy-six; and which, by experience have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity * *
      Kilty found that “there are in the provincial records, several cases of prosecutions under this statute, in some of which it is particularly named in the indictments. They were in the years 1706, 1720, 1722, 1723, 1724 and 1725; and it appears that in some of them the offenders were sentenced to death.” By the 11th section “all claims to dispensation from punishment, by benefit of clergy, shall be and are hereby for ever abolished.”

      . Escape or attempt to escape from a convict road force was proscribed by the Acts of 1916, ch. 311, § 3. Codified as Art. 37, § 714, Md. Code (1967 Repl. Vol.),' the crime was designated a misdemeanor and the sentence established was not less than 3 months nor more than one half of the entire term for which the escaper or attempted escaper had been previously sentenced.

      . The catwalk was apparently closed off. The first guard to arrive on the scene at the sounding of the alarm said, “I opened up the catwalk.”

        . Nor is this rationale inconsistent with the decisions of the Court of Appeals. There is no distinction between an escape from within prison walls and one effected when the prisoner, in legal custody, was physically outside the prison area, Ford v. State, 237 Md. 266. An escape from a hospital, Best v. Warden, 235 Md. 633, from a reformatory farm, Johnson v. Warden, 196 Md. 672, and from the Sandy Point Correctional Camp, Taylor v. State, 229 Md. 128, were held to violate the statute. See also Slagle v. State, 243 Md. 435.

      . See also Kirby v. State, 222 Md. 421, 425, in which it is stated that the right to a speedy trial “ * * * may be waived and that it is waived by failing to assert the right in the trial court. Unless that question was raised below, it is not before the appellate court for review—that is it may not be raised for the first time on appeal because, among other reasons, a defendant cannot participate in a trial and save an objection with which to challenge an adverse verdict.”
      As a rule it is only after a prosecution has been initiated that the issue of a speedy trial can be raised by the defendant. Price v. State, 235 Md. 295; Keyes v. State, 236 Md. 74; Reddick v. State, 219 Md. 95. For a case involving circumstances excepting it from the application of this rule see Petition of Provo, 17 F. R. D. 183 (D. C. Md. 1955), aff'd, 350 U. S. 857.
      We note that written demand by the accused is required to compel trial within the time specified by the inter-state and intrastate detainer acts Md. Code (1967 Repl. Vol.), Art. 27, § 616A-616S, which are applicable only to prisoners who are serving a sentence and against whom a detainer on a pending charge has been filed. And an accused seeking an immediate trial under the provisions of Md. Rule 709 must file a petition to that effect to invoke the rights thereunder to a trial “* * * within such reasonable time as to accord him a speedy trial.”

      . As we have found that the appellant in the instant case did’ not make proper demand for a speedy trial we do not reach the question of the necessity to show prejudice when demand has been made. But see United States v. Banks, 370 F. 2d 141 (4th Cir. 1966), in which, although there was no basis of a claim of waiver, the-Court said, p. 144-145:
      “While we cannot justify the District Attorney’s inactivity during the ten-month interval between the indictment and Bank’s release from state confinement, in appraising the right to a speedy trial we are required to look at the possible prejudice the defendant has suffered as well as to the length of the delay and the reason for it. The delay was not so long as to make a prima facie showing of prejudice. During that interval Banks was not confined on the federal charge. There was no loss of witnesses. He suffered no detriment from it.”
      It held that the District Court properly concluded after the hearing on the motion to dismiss that there had been no deprivation of the defendant’s constitutional right to a speedy trial. Compare Jones v. State, 241 Md. 599.

      . See: Keyes v. State, 236 Md. 74, “* * * nor does the record show any prejudice to him by the delay;” State v. Murdock, 235 Md. 116, cert. den. 379 U. S. 914—“And we are not persuaded by appellee’s affidavit * * * that he has suffered any substantial prejudice by the delay;” Swift v. State, 224 Md. 300—•“ * * * there was no showing that these delays were unreasonable or that he had been prejudiced thereby;” Dubs v. State, 2 Md. App. 524—“he was in no wise prejudiced thereby.”

      . See: Bonner v. Director, 237 Md. 445; Price v. State, 235 Md. 295; Reddick v. State, 219 Md. 95; Harris v. State, 194 Md. 288; State v. Long and Nelson, 1 Md. App. 326; Allen v. State, 1 Md. App. 249.

      . It has been held many times that no constitutional right to a speedy trial is denied, when the delay in trial is because the accused is in a federal prison. Kirby v. State, 222 Md. 421, 424 and cases therein cited. It has also been held that imprisonment in a state institution is an acceptable reason, with qualifications, for delay in bringing an accused to trial on federal charges. United States v. Banks, 370 F. 2d 141 (4th Cir. 1966). In Harris v. State, 194 Md. 288, the defendant was confined in a Maryland institution under process from a Maryland Court with no resulting denial of his right to a speedy trial because he had not demanded it, although there was a lapse of nearly 5 years between indictment and trial. See also Bonner v. Director, 237 Md. 445.