text:
    BERNARD JENNINGS SWEETING, JR. v. STATE OF MARYLAND
    [No. 132,
    September Term, 1968.]

      Decided January 15, 1969.

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

      Millard S. Rubenstein, with whom was Roland Walker on the brief, for appellant.

      William B. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green,

      Jr., State’s Attorney for Baltimore County, and Gary Huddles, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

Appellant was convicted of burglary by the court sitting without a jury and sentenced to ten years under the jurisdiction of the Department of Correction. He contends on this appeal (1) that the trial court erred in denying his motion to suppress evidence, and (2) that the evidence was insufficient to support his conviction.

I

Appellant’s pretrial motion to suppress was based on the alleged illegal search of his automobile and the police seizure therefrom of a wallet belonging to the victim of the burglary. The evidence adduced at the trial bearing on the legality of the search and seizure was substantially as follows:

Harriet Thompson, the victim of the crime, testified that at 10:30 p.m. on August 28, 1967, she left her locked house at 516 Fifth Avenue to visit a neighbor, leaving her pocketbook containing her wallet on the kitchen table; and that when she returned at approximately 11:00 p.m. she found that her door had been broken and that her wallet containing $25.00 was missing from her pocketbook. She testified that at approximately 11:30 p.m. or 12:00 midnight the police returned her wallet to her.

Officer Vernon Redding testified that he went to the Thompson home at 11:29 p.m. in response to a call and obtained a description of the stolen wallet from Mrs. Thompson; that he then searched the area and sometime between 11:45 p.m. and 12:00 midnight observed an unoccupied automobile parked in a court at the end of the road in the 700 block of Fifth Avenue, this being about one block from where the burglary occurred; that a car “usually doesn’t sit in that location”; that the car was locked; that he immediately obtained a listing on the vehicle from the Department of Motor Vehicles, and learned that it was registered in appellant’s name; that he shone his flashlight into the vehicle’s front window on the driver’s side and observed a wallet “sticking out from under the left side of the front seat right by the floorboard”; and that the wallet fit the description of that stolen from Mrs. Thompson. The officer testified that he had “a feeling that it was the car used in the burglary, and I didn’t know whether it was an accomplice or what, so I sat on it”; that he had waited and observed the car from an adjacent court for about fifteen minutes when a man, later identified as Bernard Lease, came up to the car, unlocked its door and entered the vehicle; that he (Redding) then went over to the car and, in response to his questions, Lease identified himself and explained that he was taking the car at appellant’s request; that he (Redding) told Lease not to move the car, “reached inside the car” and pulled out the wallet which he had earlier observed; and that when he told Lease that he was going to search the vehicle, Lease said “Okay.” Lease gave the officer the keys and went home.

Officer Redding further testified that appellant had been apprehended by another officer on a Peeping Tom charge at approximately 11:15 p.m. on the night of the burglary and was taken to police headquarters; and that the Peeping Tom offense occurred about one block from where appellant’s car was found parked. It is not clear from the evidence whether Redding had knowledge of appellant’s arrest at the time he observed his car and seized the wallet therefrom, or whether he learned after-wards of the arrest.

Bernard Lease testified that he obtained the keys to appellant’s car from the appellant at the police station and was going to move his car for him; that the car was unlocked when he got to it and the window was down; that as he got into the car, Officer Redding approached him, and he told the officer that he was taking the car back to the appellant; that the officer asked him “Do you have any objections if I search the car,” to which he responded “none whatsoever”; and that while the officer never got in the car, he shone his flashlight into it and pulled out a wallet from under the front seat. The witness did not observe whether the wallet had actually been sticking out from under the front seat.

In denying the motion to suppress the wallet from evidence, the lower court ruled in effect that the officer’s action in shining his flashlight into appellant’s car did not constitute a search within the ambit of the Fourth Amendment.

Appellant contends that as the search of his car was not incident to his arrest, and as the officer had no cause to believe that his vehicle was in any way connected with the Thompson burglary when he first looked into it, he was necessarily a trespasser and his action in shining the flashlight into the interior of the car constituted a warrantless search prohibited by the Fourth Amendment. Appellant maintains that the officer did not make a mere casual observation of that which could readily be seen but, on the contrary, “he came up close to the vehicle, crouched over, peered within, and, when that revealed nothing remarkable to him, proceeded to conduct a comprehensive, studied exploration, with the assistance of his flashlight, throughout the entire interior of the vehicle as a result of which he ultimately discovered part of a red wallet protruding from under a seat thereof.”

Even with the gloss placed on the evidence by the appellant with respect to the manner by which Officer Redding made his observation of the stolen wallet, we agree with the lower court that the officer’s action in shining his flashlight into the vehicle, and his ensuing observation of the wallet protruding from under the seat did not, under the circumstances of this case, constitute an unreasonable search proscribed by the Fourth Amendment. Redding had knowledge that a felony had been committed and that a particular wallet had been stolen in that crime. In conducting his investigation in the immediate area of the crime, he observed a motor vehicle parked on a public street under circumstances giving rise to some suspicion in his mind that because of its position, the vehicle was in some way connected with the crime. While his suspicion did not at that time constitute probable cause to make a warrantless search of the vehicle, see Carroll v. United States, 267 U. S. 132, we think the officer was wholly justified in making further investigation by shining his flashlight into and viewing the vehicle’s interior. It is, of course, unquestioned that an automobile comes within the protection of the Fourth Amendment and cannot be subjected to an unreasonable search, but it is equally clear that it is not a search in the constitutional sense to see what is in plain view, either in daylight or artificial light. See Nestor v. State, 243 Md. 438; Kershaw v. State, 199 Md. 135; Reagan v. State, 4 Md. App. 590; Minnick v. State, 4 Md. App. 81. It has been held under circumstances not dissimilar to those involved in the present case that where an officer is in a place where he is lawfully entitled to be (as here, on a public street), the shining of a flashlight at night inside the vehicle while remaining outside does not amount to an illegal search under the Fourth Amendment. See United States v. Lee, 274 U. S. 559; Fagundes v. United States, 340 F. 2d 673 (1st Cir.); Davis v. United States, 327 F. 2d 301 (9th Cir.); Petteway v. United States, 261 F. 2d 53 (App. D.C.) ; United States v. O'Brien, 174 F. 2d 341 (7th Cir.); Smith v. United States, 2 F. 2d 715 (4th Cir.) ; United States v. Callahan, 256 F. Supp. 739 (D. Minn.) ; State v. Haggard, 404 P. 2d 580 (Idaho) ; People v. Carnes, 343 P. 2d 626 (Calif. Dist. Ct. App.).

In Ferguson v. State, 236 Md. 148, it was held that it was not a search to see evidence of crime through a car window in the daytime and that the officer, in looking through the window, was not a trespasser, the vehicle being parked on a public lot. We think it too clear to require discussion that Officer Redding was not a trespasser when he looked into appellant’s vehicle while standing on a public street. See also Griffin v. State, 200 Md. 569 (observation made by a police officer that a crime was being committed within a house by peeking through a side window) ; Minnick v. State, supra (observation made through an open garage door of stolen articles within the garage); Johnson and Magbee v. State, 2 Md. App. 300 (observation of criminal activities by looking through an open window with aid of binoculars); Mullaney v. State, 5 Md. App. 248 (observation of criminal activities within a motel room through an open door). Cf. Dailey v. State, 234 Md. 325; Beale v. State, 230 Md. 182; Dorsey and Gladden v. State, 2 Md. App. 40. In Harris v. United States, 390 U. S. 234, 19 L.Ed.2d 1067— a case where a police officer had lawfully opened the door of an impounded vehicle and noticed an incriminating document which he seized — the Supreme Court held that “objects falling in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be introduced in evidence,” citing Ker v. California, 374 U. S. 23, pp. 42-43; United States v. Lee, supra, and Hester v. United States, 265 U. S. 57.

As Officer Redding’s observations of the stolen wallet involved neither a search within the ambit of the Fourth Amendment nor a trespass, it was proper for him to forthwith seize the fruits of the known crime. In so holding, we recognize the force of the recent Supreme Court decisions which seemingly broaden the scope of the Fourth Amendment guarantee against unreasonable searches and seizures to protect an individual against unreasonable governmental intrusion in any area where he may harbor a reasonable expectation of privacy. See Terry v. Ohio, 389 U. S. 804, 20 L.Ed.2d 889; Mancusi v. Deporte, 390 U. S. 903, 20 L.Ed.2d 1154; Katz v. United States, 389 U. S. 347, 19 L.Ed.2d 576. We do not think, however, that shining a flashlight into an unoccupied vehicle parked on a public street in the nighttime constitutes such an unreasonable arbitrary intrusion upon a constitutionally protected area as would, under the circumstances of this case, require exclusion from evidence of the seized stolen wallet.

In addition to these reasons justifying the seizure of the wallet from appellant’s vehicle, the rule is well established that the search of a motor vehicle, unlike a home, may be made without a warrant or previous arrest when the officer has probable cause in the constitutional context to believe that the vehicle contains that which is subject to seizure, including the fruits or instrumentalities of a crime. See Dyke v. Taylor Implement Mfg. Co. Inc., 389 U. S. 815, 20 L.Ed.2d 538; Brinegar v. United States, 338 U. S. 160; Scher v. United States, 305 U. S. 251; Husty v. United States, 282 U. S. 694; United States v. Lee, supra; Carroll v. United States, supra. The rule which has been afforded recognition by the Court of Appeals in Peal v. State, 232 Md. 329, and by this court in Sedacca v. State, 2 Md. App. 617, is primarily justified on the basis that an automobile is so readily movable as to make impracticable the obtaining of a search warrant. It has been applied to parked vehicles even where no immediate danger exists that the stolen articles will be removed. See United States v. Haley, 321 F. 2d 956 (6th Cir.); Armada v. United States, 319' F. 2d 793 (5th Cir.) ; United States v. Walker, 307 F. 2d 250 (4th Cir.).

We think it plain that once Officer Redding had lawfully observed the stolen wallet in the car, he had probable cause to search it, particularly so when Lease came on the scene and undertook to drive it away.

In view of our conclusion, we find it unnecessary to consider whether the consent of Lease to the search of appellant’s car would be binding upon the appellant. The question is by no means free of difficulty. See United States v. Eldridge, 302 F. 2d 463 (4th Cir.) ; Hamilton v. North Carolina, 260 F. Supp. 632 (E.D.N.C.). Cf. State v. Bernius, 203 N.E. 2d 241 (Ohio) ; Corngold v. United States, 367 F. 2d 1 (9th Cir.).

II

Appellant contends that the evidence was insufficient to support his conviction since it showed only that a wallet taken during the course of a burglary was found in an automobile owned by the appellant. We find no merit in the contention. The evidence showed that the burglary occurred between 10:30 p.m. and 11:00 p.m.; that appellant was arrested about one block from the scene of the burglary at 11:15 p.m.; that the stolen wallet was found in his car shortly thereafter; that he had the keys to his car when arrested and knew where it was parked since he gave the keys to Lease shortly after his arrest and quite obviously directed him to it. The trial judge found as a fact that the car was locked. Under these circumstances we think that the trial judge was not clearly erroneous when he concluded that appellant had possession of the stolen wallet, and that such possession was sufficient to give rise not only to an inference of fact that appellant was the thief, Ponder v. State, 227 Md. 570, but also that as the possessor, he was the burglar, as well as the thief. See Boggs v. State, 228 Md. 168; Jones v. State, 5 Md. App. 180.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THOMAS WILLIAM JEFFERIES v. STATE OF MARYLAND
    [No. 133,
    September Term, 1968.]

      Decided January 15, 1969.

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

      Solomon Baylor for appellant.

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

Thomas William Jefferies, the appellant, complains of a conviction for petty larceny by the Criminal Court of Baltimore, Judge William J. O’Donnell presiding without a jury. He was sentenced to a term of one year consecutive to an eighteen month term which had been previously imposed in connection with a different crime. On appeal he alleged that the trial court reached inconsistent verdicts on the same evidence, and that the trial court “abused its discretion with officious intermeddling in the prosecution and defense of the appellant.”

The evidence disclosed that a pharmacy was broken into on August 26, 1967 at approximately 2:00 p.m. and that articles in the value of approximately $10,000 were taken. In response to a telephone call that a burglary wras in progress Baltimore police officers discovered Jefferies and a co-defendant carrying a small quantity of the goods away from the store. The co-defendant entered a plea of guilty to receiving stolen goods which was accepted by the trial court prior to the beginning of Jefferies’ trial.

Jefferies alleges that his conviction of petty larceny was invalid because it was inconsistent with that of his co-defendant who was permitted to plead guilty to receiving. Jefferies cites no authority which supports his proposition. In Boone v. State, 3 Md. App. 11, 31, 237 A. 2d 787 it was contended that because a co-defendant had been permitted to plead guilty to murder in the second degree that the appellant could not be convicted of murder in the first degree. We rejected the contention stating: “The fact of the conviction or acquittal of one person charged with a crime is neither relevant nor material to the issue of the guilt or innocence of another person charged with the same crime as a co-perpetrator.” Contrary to the proposition taken by the appellant, the admission of evidence of the conviction or acquittal of a co-defendant at a prior trial would be error. Although there is some authority for the contrary, the majority rule is that even when two or more co-defendants are tried jointly there is no need to demonstrate rational consistency between the verdicts as to all defendants excluding, of course, a crime, such as conspiracy, which requires the participation of more than one person. See 22 ARR 3rd 717. There is, of course, even less necessity that there be a rational consistency between a guilty plea tendered by one co-defendant and accepted, and the conviction of the other defendant of an inconsistent crime after a separate trial on the merits. The fact that the co-defendants were jointly indicted and the case was called for a joint trial does not alter the fact that the co-defendant’s guilty plea severed his trial from Jefferies who entered a not guilty plea.

Jefferies also alleges that the trial judge abused his discretion with “officious intermeddling with the prosecution and defense.” To support his argument he alleges the record showed that the trial court asked 47 questions of the prosecution’s witnesses and 108 questions of the defense’s witnesses. He points to no question as being improper but alleges that the number of such questions shows on its face that the trial was not fair. In Madison v. State, 200 Md. 1, 87 A. 2d 593 the Court of Appeals specifically affirmed the right of the trial judge to intervene into the questioning of witnesses. Although the number of questions asked by the trial judge in this particular case would exceed those normally asked by a trial judge this fact alone does not mean that Jefferies’ trial was in any way unfair; on the contrary it tends to show that the trial judge was being meticulously careful to make sure that the full facts were brought out so that his decision would be absolutely correct. It is noted that although Jefferies was found in the exclusive possession of recently stolen merchandise he was not convicted of storehouse breaking as he might well have been except for a doubt in the trial judge’s mind. See Burkett v. State, 5 Md. App. 211, 245 A. 2d 911.

Judgment affirmed.

      . See Thomas v. State, 2 Md. App. 645, 236 A. 2d 747; Grimes v. State, 4 Md. App. 607, 244 A. 2d 456 for the rule that one person cannot be convicted of both larceny and receiving.


author: Thompson, J.,

text:
    DAVID ERNEST SMITH v. STATE OF MARYLAND
    [No. 137,
    September Term, 1968.]

      Decided January 16, 1969.

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

      Jeffrey R. Schmieler for appellant.

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

delivered the opinion of the Court.

David Ernest Smith, the appellant, pleaded guilty to murder in the second degree in the Circuit Court for Prince George’s County, Judge Perry G. Bowen, Jr., presiding.

Smith initially contends that the plea should not have been accepted by the court. The record discloses that after a general plea of not guilty had been entered to the indictment; after a jury had been empaneled; after opening statements had been made; and after four witnesses had testified on behalf of the prosecution, counsel for the accused announced to the court:

“I would like to at this time withdraw the plea of not guilty on [sic] murder in the first degree. I would like to enter a plea of guilty of murder in the second degree. I would like to add, for the record, that all features on all counts on all charges have been thoroughly explained to the defendant, and who does this of his own choice, voluntarily, with no promises or inducements. I say that in open court. He is sitting here and I am sure he will agree to that. And it is my further understanding that in view of this plea that the State now has certain recommendations or motions to make.”

The trial judge then interrogated the accused as follows:

“THE COURT: Smith, stand up. Did you hear what your attorney said to the Court ?
“THE DEFENDANT: Yes, Your Honor, I did.
“THE COURT: You understand that you are currently in the midst of a trial for murder,—
“THE DEFENDANT: Yes, sir.
“THE COURT: —as to which you have entered a plea of not guilty; you understand that ?
“THE DEFENDANT: Yes, sir.
“THE COURT: You understand this murder indictment charges you with three offenses, murder in the first degree, murder, and manslaughter? You understand that? There are three degrees or levels of this crime of murder; do you understand that ?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: You understand that Mr. Smith [Appellant's attorney below] has offered to the Court that you desire to withdrawn your plea of not guilty generally to this charge and to plead not guilty to murder in the first degree, but guilty of murder? Do you understand that ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that if the Court accepts your plea of guilty to murder that it will not be necessary for the State’s Attorney to prove beyond a reasonable doubt that you are guilty of murder, but rather than presume that you are innocent, as it does now, you will be presumed to be guilty and there will be no further question of your guilt or innocence of murder ? Do you understand that ?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Do you understand that the maximum sentence for this offense is confinement for a period of 32 years in the penitentiary ?
“THE DEFENDANT: Yes, sir.
“THE COURT: You understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that if the Court accepts this plea it could forthwith sentence you to that period of confinement without any further proceedings ?
“THE DEFENDANT: Yes.
“THE COURT: Speak up.
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Are you satisfied with the representation that Mr. Smith and his associate here at the trial table have given you in this case?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Is the reason that you desire to change your plea from not guilty to guilty of murder the fact that you did in fact kill Nellie Veronica Forbes, and murder her, and not for any other reason ?
“THE DEFENDANT: Can you repeat that, please?
“THE COURT: Is the reason that you now offer to plead guilty to murder because you did in fact kill and murder Nellie Veronica Forbes and not for any other reason ?
“THE DEFENDANT: No.
“THE COURT: Very well, you may be seated.
Madam Clerk, you may strike the plea of guilty generally in Case Number 7227, and enter a plea of not guilty to murder in the first degree, but guilty of murder in the second degree.”

Smith’s specific contention is that his answer to the last question indicated the claim that he did not kill and murder the victim and that the trial judge should not have accepted the plea without further inquiry. We think, under the circumstances of this case, the claim is frivolous. The negative response was clearly a reply only to the latter part of the court’s double inquiry, i.e., the appellant was pleading guilty “not for any other reason,” although we do not agree that it would have been better had the trial judge’s question not been so easily susceptible to an ambiguous answer. The Court of Appeals in James v. State, 242 Md. 424, 219 A. 2d 17 and this Court in Gopshes v. State, 1 Md. App. 396, 399, 230 A. 2d 475, Blake v. State, 2 Md. App. 492, 497-98, 235 A. 2d 569, Meadows v. State, 3 Md. App. 441, 443-44, 239 A. 2d 767, State v. Gordon, 4 Md. App. 78, 81, 241 A. 2d 169 and Wayne v. State, 4 Md. App. 424, 429-30, 243 A. 2d 19 have held that it is the obligation of the trial court to satisfy himself that a plea of guilty is voluntarily made and that the accused r:nderstands the nature of the charges against him and the consequences of his plea. We think the inquiries of the court, set forth above, satisfied this test.

Smith further contends that the trial court committed error when it accepted his plea of guilty without specifically entering a verdict of guilty. Smith cites no authority to support his proposition and we have been unable to find any. The authorities available are contrary and hold, as stated by the Court of Appeals of Maryland, in Biles v. State, 230 Md. 537, 187 A. 2d 850:

“Upon a plea of guilty, all that a court is required to do is enter judgment and impose sentence as on a verdict of guilty; and a judgment so entered cannot ordinarily be reviewed on appeal. Lowe v. State, 111 Md. 1, 73 A. 637, 24 E.R.A., N. S. 439.” (Italics added)

To the same effect see People v. Goldstein, 32 Cal. 432 (1867), Griffith v. State, 36 Ind. 406 (1871), Commonwealth v. Lockwood, 109 Mass. 323 (1872), Warner v. State, 143 N. E. 288 (Ind. 1924), State v. Stevens, 139 A. 78 (Del. 1927); see also 24C.J.S. § 1563 (1).

Finally Smith contends that he was prejudiced because the State’s Attorney at the sentencing stage of the trial informed the court as to his prior criminal record. It is elementary that in imposing sentence that the trial judge rely on all information available to him concerning the accused’s past conduct. See Logan v. State, 1 Md. App. 213, 217, 228 A. 2d 837, Miller v. State, 1 Md. App. 653, 656, 232 A. 2d 548, Gee v. State, 2 Md. App. 61, 68, 233 A. 2d 336, Thomas v. State, 2 Md. App. 645, 650, 236 A. 2d 747 and Baker v. State, 3 Md. App. 251, 257, 238 A. 2d 561.

Judgment affirmed.

      . Under Md. Code Article 27 § 412 it was impossible to enter a plea of guilty to a degree of murder. The plea was required to be entered as guilty of murder generally and the obligation was upon the trial judge to hear the evidence and make his own determination as to whether the verdict would be guilty of murder in the first degree or guilty of murder in the second degree. This procedure, however, has been changed by Maryland Rule 724 which permits a plea of guilty to a specific degree of a crime. Under the Constitution of Maryland, Art. 4, §§ 18, 18A and Md. Code Art. 26, § 25 the rule prevails since it was adopted subsequent to the statute. See Hauver v. Dorsey, 228 Md. 499, 180 A. 2d 475 and Bastian v. Watkins, 230 Md. 325, 187 A. 2d 304.

        . The penalty is 30 years, Md. Code Art. 37, Sec. 414.


text:
    CARSON FLOYD COOPER v. STATE OF MARYLAND
    [No. 139,
    September Term, 1968.]

      Decided January 16, 1969.

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

      David S. Greene for appellant.

      Id. Edgar Lentz, Assistant Attorney General, with whom were Brands B. Bu/rch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and John J. Garrity, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Carson Floyd Cooper, the appellant, received a sentence for ten years for robbery after having entered a plea of guilty to the charge in the Circuit Court for Prince George’s County, Judge Robert B. Mathias presiding. The plea was entered on January 17, 1968 and was accepted by the court after a thorough questioning of Cooper, personally, as to the voluntary character of the plea and to his understanding of its nature and effect. While a pre-sentence investigation was pending, the trial judge received a letter on February 23, 1968 stating that Cooper wished to withdraw his guilty plea which he had previously entered. At the time of sentencing on March 25, 1968 the trial judge referred to the letter, but Cooper explained that he was emotionally upset when he wrote the letter; that he still wished to plead guilty and requested that the court should proceed with the sentencing. The trial judge again satisfied himself that the plea was voluntary and that Cooper understood the nature of the charge and the consequences of his plea.

On appeal Cooper concedes that his plea was voluntary but argues in view of his limited seventh grade education that he did not understand the effect of the plea insofar as it may have waived certain constitutional rights pertaining to an alleged illegal search and seizure which may have “strengthened the case for the state.” He alleges that such a waiver could not be knowingly and intelligently made by a person of his lack of education. The Court of Appeals in James v. State, 242 Md. 424, 219 A. 2d 17 and this Court in Wayne v. State, 4 Md. App. 424, 243 A. 2d 19 and the recent case of Duvall v. State, 5 Md. App. 484, have followed the rule that the record must affirmatively show that the plea was voluntary and that the defendant understood the nature and effect of his plea. Neither the Court of Appeals nor this Court has gone so far as to require that the defendant must be in a position to write a treatise on what constitutional rights are waived by a plea of guilty before his plea can be accepted by the trial judge.

This record indicates that Cooper was 33 years of age; attended school through the seventh grade; could read and write; had received a copy of the indictment — understood the charge; was represented by retained counsel; had an opportunity to discuss the case with counsel and was satisfied with the advice of counsel; thought counsel had done all he could in Cooper’s behalf; understood that he was entitled to a jury trial; he was not under the influence of any medication or drugs; had not been offered any rewards or inducements to plead guilty; understood what he was doing; the plea was entered only because he was guilty of the offense of robbery; and he knew that the maximum sentence was ten years. No more is required under any of the decisions of the Court of Appeals of Maryland or this Court; nor have we been referred to the decisions of any other court which require more than this record shows in this case.

Cooper further contends the case should be remanded for the purpose of making a determination as to whether or not an alleged illegal search and seizure induced his guilty plea. He specifically alleges, however, that the alleged illegal search and seizure only “strengthened” the case for the state. Since this issue was not presented to the trial judge there is nothing before us to review under Maryland Rule 1085, but we will point out even if such an illegal search occurred it would not, on the facts as alleged here, entitle the appellant to any relief. See Ogle v. Warden, 236 Md. 425, 426, 204 A. 2d 179 wherein the Court of Appeals said:

“But the short answer is that no evidence was offered for the reason that none was necessary after the pleas of guilty. Mapp v. Ohio, 367 U. S. 643, relied on by the applicant, is simply not applicable to a case where the necessity for a trial is obviated. The mere fact of an illegal arrest is no ground for relief in any event. Jackson v. Warden, 235 Md. 689, 690. Where no ‘fruits’ of an arrest are used against an accused at his trial, the legality of his arrest is immaterial. Bryant v. Warden, 235 Md. 658, 659. See also Cason v. Director, 236 Md. 344. There is no claim that the guilty pleas were not voluntarily made. By pleading guilty, he waived all procedural objections, constitutional or otherwise. Plitt v. Director, 234 Md. 602; McCoy v. Warden, 234 Md. 616.”

See also Cherrix v. Warden, 1 Md. App. 65, 227 A. 2d 50.

Judgment affirmed.


text:
    CLIFTON CHURCH a/k/a BERNARD HOLLAND v. STATE OF MARYLAND
    [No. 141,
    September Term, 1968.]

      Decided January 16, 1969.

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

      John D. Ha-ckett for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Robert S. Fertitta, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Clifton Church, the appellant, was convicted of armed robbery by the Criminal Court of Baltimore, Judge E. McMastcr Duer presiding. He was sentenced to a term of twenty years. On appeal he alleges that his guilty plea was not knowingly-made and that the sentence was cruel and excessive.

The statement of facts by the prosecutor showed that Church and another, both armed with pistols, entered the Colony Credit Corporation office in Baltimore, demanded money from two employees therein and stole more than $2300 in cash. He could have been identified by both employees. The circumstances surrounding the entry of the guilty plea are detailed in the record as follows:

“MR. HARRIS: The plea is guilty to the first count of the indictment. Mr. Church, is your plea of guilty being given voluntarily ?
“MR. CHURCH: Yes, it is.
“MR. HARRIS: Has anybody offered you any promises or inducements in connection with your guilty plea ?
“MR. CHURCH: No.
“MR. HARRIS: You understand when you plead guilty the rules of evidence are suspended and that all and any evidence can come in against you pertaining to those particular events ?
“MR. CHURCH: Yes.
“MR. HARRIS: That you are subject to twenty years imprisonment, the maximum, you understand that?
“MR. CHURCH: Yes.
“MR. HARRIS: Why are you pleading guilty this morning?
“MR. CHURCH: Because I committed the robbery.
“THE COURT: I did not understand you.
“MR. CHURCH: Because I committed the robbery.
“MR. FERTITTA: The plea is acceptable to the State.
“THE COURT: Mr. Church, you understand that your rights have been fully explained to you by Mr. Harris, your counselor.
“MR. CHURCH: Yes, they have, Your Honor.
“THE COURT: That you have a right to come into this court on pleas of innocence.
“MR. CHURCH: I do.
“THE COURT: You know you have a right to enter a plea of not guilty and you have a right to trial by a jury of twelve persons.
“MR. CHURCH: Yes, sir.
“THE COURT: You still plead guilty and elect to be tried by me, the Court ?
“MR. CHURCH: Yes, sir.
“THE COURT: And taking all that into consideration, you still enter a plea of guilty to robbery with a deadly weapon, is that correct ?
“MR. CHURCH: Yes, I do. If I could, I would like to explain why.
“THE COURT: I will take your plea first, then I will hear from you and you can say anything you wish. On the first count of the indictment, the Court finds you guilty. The remaining counts of the indictment I presume are merged in this.
“MR. FERTITTA: Your Honor, they are either merged or are inconsistent with the guilty finding.
“THE COURT: What about the sixth count?
“MR. FERTITTA : The sixth count is larceny?
“THE COURT: Yes.
“MR. FERTITTA: Your Honor, I would assume that was merged.
“MR. HARRIS: It would be my impression, Your Honor, that a robbery is an aggravated larceny.
“THE COURT: All right. I will find him guilty under the first count. All right.”

Church seems to concede that his plea of guilty under the circumstances set out above would comply with the standards set down by the Court of Appeals in the case of James v. Siaic, 242 Md. 424, 219 A. 2d 17 and followed by this Court in Duvall v. State, 5 Md. App. 484, 248 A. 2d 401 and in other cases such as Wayne v. State, 4 Md. App. 424, 429-30, 243 A. 2d 19; but he alleges that this Court should lay down detailed standards as to the questions that should be asked by the tidal judge as was done by the Michigan Court of Appeals in State v. Taylor, 2 CrL 2366 (1968) or as proposed by the American Bar Association project on minimum standards for criminal justice in its tentative draft on Pleas of Guilty or at least as required by Rule No. 11 of the P'ederal Rules of Criminal Procedure as amended. We think that an accused’s rig] its are adequately protected by the rule we have followed which, while requiring no specific ritual, does require the record to show that the trial judge has satisfied himself of the voluntary character of the guilty plea and that the accused understand its nature and effect. If experience should dictate that an accused’s rights should be further protected we think those standards should be established by statute or by rule of court so that trial judges would know in advance precisely what was required of them. Church, age thirty, does contend, however, that since the record shows that he went only to the seventh grade in vocational school he could not thoroughly understand the law as to all rights he was waiving by his guilty plea; therefore, he could not have given a valid guilty plea. Such sophistication is not required even by the proposals made by the American Bar Association or by the Court of Appeals of Michigan in State v. Taylor, supra or by Federal Rule No. 11; and we know of no authority that requires that the accused must have such sophisticated knowledge in order to make a valid guilty plea.

Finally, Church complains of the fact that the judge imposed a maximum sentence permitted by the statute. His argument is, first, that the trial judge did not secure a presentencing report before imposing sentence, and secondly, that his record would indicate that he should not have received the maximum. The record as presented to the trial court showed that in 1954 Church was convicted of petty larceny; in 1955, of burglary; in 1966, of five separate larceny charges. On appeal, he alleges that one of the car thefts in 1966 was reversed on appeal, but he gives no citation and the conviction was not challenged before the trial judge.

In Washington v. State, 2 Md. App. 633, 634, 236 A. 2d 32 this Court stated:

“It is well settled that imposition of sentence in a criminal case in this State is a matter peculiarly within the province of the trial judge, Reid v. State, 200 Md. 89, 88 A. 2d 478, 89 A. 2d 227, Gee v. State, 2 Md. App. 61, 233 A. 2d 336; and that a sentence will be reviewed on appeal only where grossly and inordinately disproportionate to the offense to such an extent that the sentence was evidently dictated not by a sense of public duty, but by passion, prejudice, ill will, or other unworthy motive, James v. State, 242 Md. 424, 219 A. 2d 17, Fisher v. State, 1 Md. App. 505, 231 A. 2d 720.”

There is nothing in the present record that would bring this case within the rule set out in Washington v. State, supra. There is no requirement under Maryland Rule 761 c that the trial judge is required to make use of a presentence report, and we see nothing improper in the fact that the trial judge imposed a maximum sentence.

Judgment affirmed.


text:
    LAWRENCE JAMES v. STATE OF MARYLAND
    [No. 153,
    September Term, 1968.]

      Decided January 16, 1969.

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

      Leonard S. Freedman for appellant.

      John J. Garrity, Assistant, Attorney General, with whom were Francis B. Burch, Attorney General, Charles F. Moylan, Jr., State’s Attorney for Baltimore City, and Fred K. Grant, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Appellant was convicted by the court sitting without a jury of assault on a minor child in violation of Maryland Code, Ar-tide 27, Section llA(a) and sentenced to one year under the jurisdiction of the Department of Correction. He contends on this appeal that the State failed to prove the corpus delicti and that the evidence was insufficient to support his conviction.

The pertinent facts disclosed by the record are these: Beverly James, appellant’s wife and the mother of twenty-two month old Tracey James, the infant victim, was called as a witness on behalf of the State and compelled to testify against her husband. She testified that she had been married to appellant for seven months and that they had been living together with Tracey and their three other children, ages 3, 4, and 5; that on January 25, 1968, appellant had returned home from work at approximately 4:30 p.m.; that Tracey was playing with their other children when, at about 7:00 p.m., she left the children in her husband’s care so that she could go to the doctor; that when she left home Tracey’s body was free of any bruises; that when she returned at about 11:00 p.m. Tracey “was standing up like she had been crying” and “she had wet and she had vomit in the bed”; that she did not examine Tracey that night but the following day she noticed some “fingernail marks” on both Tracey’s arms which she treated with vaseline; and that on the following day, January 27, Tracey would not eat, and when she went to hold her hands in order to feed her, “she started crying like they [her hands] were hurting, and she had these bruises on her arms,” so she took Tracey to Maryland University Hospital to be examined. Mrs. James further testified that between January 25 and January 27, 1968, all her children had remained at home and that neither she nor any of her children had struck Tracey. On cross-examination she admitted that several months previous to that January her oldest child had opened a locked cellar door, and their four-year old child fell down the cellar stairway.

The University Hospital records were received in evidence and showed that Tracey James was examined on January 27, 1968; that the physicians’ findings, as set forth in the hospital record, indicated that Tracey had “multiple abrasions and contusions over her entire body”; that she had “obvious gross injuries of physical trauma * * * with multiple abrasions, old and new on forehead * * *, abrasions over lower thorax posterior, and multiple areas of point tenderness of arm and forearm”; that the roentgen examination revealed “[e]vidence of a complete transverse fracture of the distal end of the right radius * * * [and] questionable fracture of the ossified, capitellum of the right elbow,” and “[e]vidence of a complete transverse fracture of the distal end of the left radius * * * and a Greenstick fracture of the distal end of the left radius * * The hospital report noted that “Mother has stated that pt. [patient] has been beaten on numerous occasions by her father.” The examining physician, in his diagnosis, characterized Tracey’s injuries as those of a “Battered Child.”

Appellant contends that the State failed to prove the corpus delicti “as it is quite conceivable that Tracey James was accidentally injured in her home between January 25, 1968 and January 27, 1968” and that it is “also possible that one of the said child’s brothers or sisters caused her injury, either deliberately or accidentally, or that Tracey accidentally fell down the aforementioned steps, as one of her sisters had previously done.” He also maintains that even if there was sufficient proof of the corpus delicti, there was no evidence that he inflicted the injuries upon Tracey, since there was no proof that he was at home when Tracey was injured; but that even if he had then been at home, his mere presence would not suffice as proof that he was criminally responsible for Tracey’s condition.

The State contends, on the other hand, that the evidence showed that Tracey was maliciously beaten to such a degree as to require medical treatment; that the medical report indicated that Tracey was a. “Battered Child”; that this is a term of art used by the medical profession to describe a specific condition or syndrome relating to a child who has been the victim of malicious assault by parental beating; that in other words the “battered child” syndrome is a clinical condition in infants who have received serious physical abuse; and that among the indices of suspicion which are designed to aid an examining physician in diagnosing a “battered child,” and which are pertinent in the present case are (1) age usually under three years; (2) characteristic distribution of fractures; (3) disproportionate amount of soft tissue injury; (4) evidence that injuries occurred at different times and are in different stages of repair; (5) cause of recent trauma doubtful; (6) suspicious family history, and (7) previous similar episodes. The State cites several text authorities in support of its contention that the evidence satisfactorily established the corpus delicti.

The State also contends that the evidence showed that appellant was the person criminally responsible for Tracey’s injuries in that his wife’s testimony established that Tracey was free of injuries when left in his care on January 25 between 7:00 p.m. and 11:00 p.m.; that during this time “something of an abnormal nature occurred to the body of Tracey James”; that appellant was present during this critical period; and that there was evidence that neither the child’s mother or brothers or sisters struck her between January 25 and January 27.

While the corpus delicti must be proved beyond a reasonable doubt, Sizemore v. State, 5 Md. App. 507, it may be established by circumstantial evidence, Gamble v. State, 2 Md. App. 271. As the record indicates, there was evidence showing that Tracey was free of bruises on January 25 when placed in appellant’s care. There was evidence showing that she was not struck by either her mother or brothers and sisters between January 25 and January 27, and there was no evidence showing that she was involved in any accident between those dates. We think it plain that Tracey’s extensive injuries were neither accidental nor innocent but as indicated by the physicians’ diagnosis of a “Battered Child” had been deliberately and criminally inflicted upon her. In this connection, the mother’s statement as set forth in the hospital record that appellant had beaten Tracey on numerous occasions may have assisted in that diagnosis. In any event, we think the corpus delicti was satisfactorily established, and that there was legally sufficient evidence that, as specified in Section llA(a), some person did “maliciously" beat, strike or otherwise mistreat a minor child to such degree as to require medical treatment.

And we think it equally clear from the summary of evidence herein related that the facts establishing the corpus delicti also tend to establish that appellant was the criminal agent. Even assuming that the statement in the hospital record to the effect that appellant had beaten Tracey on numerous occasions would not have been properly admissible as part of the hospital record had objection been made to it, there was no objection to such statement so that, although hearsay, it may be afforded the same probative force as if competent, the weight thereof being for the trier of fact. Hyman v. State, 4 Md. App. 636, and cases cited at page 642. See also Fabian v. State, 235 Md. 306, a case involving assault and battery upon an infant child, where it was held that testimony of a witness who was not present when the crime was committed that the accused beat the infant “all the time” was admissible as evidence of other offenses which “has a natural tendency to establish, or offers a reasonable presumption or inference as to, a principal fact at issue or matter in dispute.” It is our opinion that the evidence, in totality, mounts up to more than appellant’s mere presence at the scene of the crime and we cannot, on the record before us, conclude that the judgment of the trial court, in finding appellant guilty, was clearly erroneous under Maryland Rule 1086.

Judgment affirmed.

      . Section 11A (a).

        "Penalty.- — -Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of sixteen years who maliciously beats, strikes or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the penitentiary.”

      . See Maryland Code, Article 35, Section 4.

      . According to the Hospital Report, there was “a small amount of callus formation” at the site of each radius fracture.

      . The Battered Child, London Hospital Med. Sci. Law (1966); Parker G.E.M.D., The Battered Child Syndrome Problem in the United States, Dept, of Law, Vanderbilt University, Tenn. Med. Sci. Law 1965, and The Radiologic Diagnosis in Infants and Children by Armand E. Brodeur, M.D., The C.V. Mosby Co., St. Louis. Mo., 1965, Section 5, The Mistreated Child.


author: Orth, J., Thompson, J.,

text:
    ROBERT KING, SR. v. STATE OF MARYLAND
    [No. 135,
    September 'Term, 1968.]

      Decided January 20, 1969.

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

      Sidney S. Campen for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William B. Yates, II, State’s Attorney for Dorchester County, on the brief, for appellee.
   Orth, J.,

delivered the majority opinion of the Court. Anderson and Thompson, JJ., dissent. Dissenting opinion by Thompson, J., in which Anderson, J., concurs, at page 674 infra.

The appellant was found guilty by a jury in the Circuit Court for Dorchester County of the following offenses and sentences were imposed as designated:

Indictment No. 2183 — Storehouse breaking with intent to steal goods of the value of $100 and upwards; 5 years.
Indictment No. 2184 — Storehouse breaking with intent to steal goods of the value of $100 and upwards (1st count); grand larceny (2nd count); 5 years on each count to run concurrently on each count but consecutively with the sentence in No. 2183.
Indictment No. 2185 — Storehouse breaking with intent to steal goods of the value of $100 and upwards; 5 years to run consecutively with the sentences in No. 2183 and No. 2184.

On appeal from the judgments he contends:

I He was denied a speedy trial.
II The testimony of an accomplice was not corroborated.
III An oral statement made by him was improperly admitted in evidence.
IV The trial court erred in refusing to grant his request, made during the course of the trial, that his court appointed attorney be dismissed and new counsel be appointed to represent him.

I

SPEEDY TRIAL

Every accused within the ambit of the Constitution of the United States is guaranteed a speedy trial by its sixth amendment. Klopfer v. North Carolina, 386 U. S. 213; State v. Long and Nelson, 1 Md. App. 326. Every accused under the jurisdiction of this State is also guaranteed a speedy trial by Article 21 of the Maryland Declaration of Rights and, in addition to these federal and State constitutional rights, has a statutory right, under certain circumstances, to a trial within a specified time by the provisions of Md. Code, Art. 27, §§ 616A-616R pertaining to interstate detainers and § 616S pertaining to intrastate detainers. And by Md. Rule 709 an accused not indicted may seek an immediate trial upon petition waiving his right to action by the grand jury, § a, whereupon the State’s Attorney shall immediately file an information against him (except in a case originating before a trial magistrate which is to be tried upon warrant) § b; when such petition has been filed the accused “shall be tried, without regard to term of court, within such reasonable time as to accord him a speedy trial.” § c. We have considered the constitutional rights to a speedy trial and discussed the rules of law relating thereto in a number of cases from Allen v. State, 1 Md. App. 249 to Frazier v. State, 5 Md. App. 88. In State v. Long amd Nelson, 1 Md. App. 326, we stated that the time within which trial must be had by the provisions of Art. 27, §§ 616A-S applied only to prisoners serving a sentence and against whom a detainer had been filed and held that there was no statutory direction, either directly or by implication, that all those accused of a crime must be tried within a specified time. But we have had no occasion to consider fully the provisions of §§ 616A-S or Md. Rule 709. The instant case, however, brings Art. 27, § 616S before us, as the appellant claims that he was not only denied his constitutional rights to a speedy trial but that a detainer was lodged against him for the crimes which are the subject of this appeal while he was a prisoner serving a sentence in a correctional institution under the jurisdiction of the Department of Correction, that he requested that he be tried and that he was not tried within the time prescribed by the statute.

The Intrastate Detainer Act

Chapter 628, Acts 1965, effective 1 June 1965, codified as Art. 27, § 616S, applicable at the time of the appellant’s trial on 7 March 1968, provided in relevant part:

“(a) Request by prisoner; statement from warden having custody. — Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department, any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State’s attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 30 days of the prisoner’s notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.
(b) Duty to inform prisoner. — The warden or superintendent having custody of the prisoner shall inform the prisoner within 15 days in writing of the source and contents of any untried indictment, information, or complain against said prisoner concerning which the warden or superintendent has knowledge, and of the prisoner’s right to make a request for final disposition thereof.
(c) Dismissal when action not commenced. — If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.”

Obviously the objective of the Act was to assure a prisoner incarcerated in the designated institutions of this State against whom a detainer was filed on a charge to be prosecuted in this State, a trial on such charge within the time limitation upon delivery to the State’s attorney and court of the prisoner’s request. While the Act may be praised for its objective, it may be more damned for its provisions establishing the procedure to attain the objective. The provisions are vague, obscure and with one exception, lack sanctions to compel compliance with them. In our discussion of the Act hereinafter “indictment” means “any untried indictment, information or complaint against a prisoner”; “warden” means “warden, superintendent or county or city law enforcement officer having custody of the prisoner”; “statement” means the statement from the warden specified in § 616S (a) ; and “request” means the request of the prisoner for final disposition of the indictment.

The Act first refers to the request of the prisoner in that part of subsection (a) providing that when a detainer has been received by the Department of Correction (and by amendment by any county or city jail) the prisoner shall be brought to trial within the time limitation after the request of the prisoner has been delivered to the appropriate State’s attorney and court. It then provides that the request “shall be filed” within 30 days of the prisoner’s notification of the indictment. It does not say who is to file the request or where it is to be filed. The Attorney General has interpreted the filing provision to mean that the request of the prisoner must be made by him within 30 days of his notification of the indictment. 50 Opinions of the Attorney General 108. Although the opinion of the Attorney General does not expressly so state, the implication is that the request is to be filed by the prisoner with the warden. But the Act also provides that the request so filed shall be accompanied by a statement from the warden and “shall be delivered by certified mail.” It would seem more logical not to require a time limitation for the making of the request by the prisoner but to require, when the request is made to the warden, that the warden file it within 30 days thereafter, accompanied by the statement, with the appropriate State’s attorney and court. However the Act does not say that the filing should be within 30 days of the receipt of the request by the warden but within 30 days of the prisoner’s notification of the indictment and it would be impossible for the warden to file the request if none had been made. But it would be impractical to require that the request filed with the warden be accompanied, as the Act provides, by a statement which must be made by the warden. On the other hand it would be equally impractical to require that it is the prisoner’s obligation to obtain the statement from the warden and then to file it, within 30 days of his notification, with the State’s attorney and court with delivery to them by certified mail. The prisoner may be without funds for the mailing and it would properly, by normal prison routine, have to pass through the hands of the prison officials in any event. We can only determine the legislative intent to have been that the prisoner file the request (no particular form is necessary) with the warden within 30 days of the prisoner’s notification of the indictment and that it is the warden’s obligation to prepare the statement and to deliver it by certified mail to the appropriate State’s attorney and court. We recognize that by this construction there is no time limitation within which the warden is to so deliver the request and statement and that the time limitation within which the prisoner must be brought to trial dates from the time his request is delivered to the State’s attorney and court. Thus the prisoner may be precluded from invoking the Act by the failure of the warden to deliver the request as required for no sanction is provided by the statute for such failure. While we may construe statutes within the legislative intent, we cannot enact legislation and we may not presume a sanction when none is provided.

Subsection (b) requires the warden to inform the prisoner within 15 days in writing of the source and contents of the indictment, concerning which the warden has knowledge, and of the prisoner’s right to make a request for final disposition thereof. It does not specify when the 15 days start to run. We think the 15 day period would commence when the warden received knowledge of the indictment. As the Act contemplates that the detainer would be received by the Department of Correction, it assumes that the proper officials would then notify the warden; the warden would then have knowledge. However, the Act does not provide for such notification. As the time within which the prisoner shall be brought to trial runs from the time his request is delivered to the State’s attorney and court, as he cannot make the request until he is notified of the indictment, as he need not be notified of the indictment until the warden has knowledge of it, as the warden would not have the requisite knowledge of it until he was informed about the detainer, and as there is no requirement that the warden be notified of the detainer, the prisoner would be precluded from invoking the Act or the invoking of the Act by the prisoner could be indefinitely delayed by the mere failure or delay of the proper officials to notify the warden that the detainer had been received. We do not feel that the knowledge of the Department of Correction as to an indictment, obtained by receipt of a detainer, is knowledge of the warden. The Act specifically px’ovides that the infoxunation as to the indictment is that concerning which the warden has knowledge. We can only take this to mean actxxal knowledge, for the warden could not inform the prisoner of that which he had only constructive knowledge. And, in axxy event, even if the warden had actual knowledge of the indictmexxt and failed to give the prisoner the information required, the prisoner would not be entitled to relief under the provisions of the statute; again there is no sanction provided for such failure.

Subsection (c) of the Act provides that if “action is not commenced” on the matter for which request is made within the time limitation set forth in subsection (a) the court no longer shall have jurisdiction, the indictment shall have no further force or effect and the court shall order its dismissal with prejudice. We interpret “action” to mean trial. The time limitation set forth in subsection (a) specifically refers to the trial of the prisoner. We do not think that any other “action” than the trial was intended by the legislature. The Act does not define “action” and we believe that any other interpretation would render the Act so impotent as to substantially affect the attainment of its objective.

As we construe Md. Code, Art. 27, § 616S, applicable at the time of the appellant’s trial, it provides :

1) a warden having knowledge of an indictment pending in this State against a prisoner in his custody, such knowledge having been obtained by notice to the warden of a detainer received by the Department of Correction, shall inform the prisoner in writing, within 15 days of the obtaining of such knowledge, of the source and contents of the indictment and of the prisoner's right to make a request for final disposition of it.
2) the prisoner may, within 30 days of the receipt of such information, make a request, in writing, for final disposition of the indictment and deliver it to the warden.
3) upon receipt of such request the warden shall prepare a statement as to the matters specified in subsection (a) and deliver a copy of the request and statement to each of the State’s attorneys and the appropriate court in the jurisdiction where the indictment is pending.
4) the indictment shall be brought to trial within 120 days of the receipt of the request and statement by the State’s attorney and court; except that for good cause shown in open court, in the presence of the prisoner or his counsel, the court may grant any reasonable or necessary continuance; if trial is not commenced within such time limitation the court shall no longer have jurisdiction, the indictment shall have no further force or effect and the court shall order it dismissed with prejudice.

Thus the Act assumes that all parties concerned will do what its provisions call upon them to do but it provides a sanction for failure to do so in only one instance, i.e., when the prisoner is not brought to trial within the time limitation after his request and the warden’s statement have been delivered to the appropriate State’s attorney and court. But the court does not lose jurisdiction and the indictment still has force and effect and shall not he dismissed with prejudice for any other failure to comply with the provisions, not only on the part of the prisoner but also on the part of the State’s authorities. So the Act is not invoked if the warden fails to inform the prisoner as required either because he has not received knowledge of a detainer from the Department of Correction or having received such knowledge he fails to inform the prisoner. Nor is it invoked when the warden, having knowledge of the detainer, informs the prisoner and the prisoner files his request, but the warden fails to deliver the request, accompanied by the statement, to the appropriate State’s attorney and court. In other words, the Act is invoked only when there is full compliance with its provisions, short of bringing the prisoner to trial within the time limitation.

We now turn to the instant case. Prior to trial the appellant filed a motion to dismiss the indictment. At a hearing on the motion preliminary to trial he testified and offered evidence. He said that while he was incarcerated in the Maryland House of Correction he was delivered, in June or July of 1967, a slip of paper by an inmate — “They put it in the mail and your mail goes to the jail and your inmate gives out your mail and I was given this piece of paper * * * I have never been officially notified.” The slip said, “You have a detainer against you by the Maryland State Police.” On 15 September 1967 he was in the Maryland Penitentiary and he wrote “The Chief Judge for Dorchester County” that he had a detainer filed against him from Dorchester County. He asked that certain evidence be suppressed and for “a speedy trial, before the case and evidence gets too old.” He said he also had detainers against him in Frederick County and Caroline County. On 2 October he wrote the State’s Attorney for Dorchester County that he had been “advised by the authorities here” that charges of breaking and entering and larceny had been placed against him, that he was serving a 5 year sentence imposed by the Circuit Court of Washington County, that his wife had just given birth to their first child, and asked that the State “consider the possibility of Nolle Prosse” of the pending charges. On 12 October he received a reply from the State’s Attorney for Dorchester County that his letter was being referred to Judge C. Burnham Mace and “we are taking into consideration the matters therein contained. You wfill hear from us at a later date.” He said that before he wrote the letter of 2 October he went to the classification officer of the penitentiary and asked about the detainer. The officer told him he had a charge pending in Dorchester County “but I have got nothing to do with this, it happened while you w^as at the Plouse of Corrections.” The officer suggested he write the State’s Attorney. After further discussion the officer “carried it to the warden and the warden told him at that time that he was supposed to have filled out some kind of form or something. He said he didn’t — it wasn’t his responsibility, that they was supposed to have done it at the House of Corrections. Since they didn’t do it at the House of Corrections it wasn’t his job to do it. We had a big argument about that and everything.” On 26 December he received a letter from the State’s Attorney for Dorchester County. It stated that the detainers were still pending, that he would be tried on the charges of breaking, entering and larceny, that “your friends Franklin Eugene Safrit and William Crouse Happel have been tried and both pleaded guilty,” that “we recovered all evidence including the safe in Marshy Hope Creek and you will be tried on these charges.” It asked, “In view of the information contained above, do you still want a speedy trial? If you do please advise us and we will have a preliminary hearing immediately.” On 3 January 1968 the appellant replied to the letter. He said he was serving a 5 y2 year sentence, that he had been convicted of breaking and entering in Frederick and was awaiting sentencing, that “in view of the time already given and with what I will get from Frederick I was hoping your office would see fit to drop your detainers.” However, if he was to be tried he wanted a speedy trial and an attorney. Copies of the letters were admitted in evidence. He testified that when he first heard about the detainers the warden or superintendent did not inform him of “anything.” He had never seen the detainer and specifically had not been told of his “right to a speedy trial and what you had to do.” As to the slip he received, “the inmates get hold of slips given out the same way, and they have a habit of typing on typewriters and putting different charges, and actually, I didn’t know if this was official or not.” On cross-examination it was elicited that an attorney had been appointed to represent him on 5 January 1968 apparently as a- result of his letter of 3 January 1968 and that the attorney had conferred with him at the penitentiary. On redirect examination he said he was prejudiced by the delay in trial “because of the time that was involved.” He wanted certain witnesses and “these witnesses scattered.” The witnesses could have testified that after the commission of one of the crimes of which the appellant was charged one of the co-defendants told in their presence how he and the other co-defendant went to the back and “all the other stuff that is supposed to have happened” and that the appellant laughed and said “this is one he got that I didn’t get, and all of that stuff.” Another witness would testify that Happel (at the time of the trial Happel had pled guilty to the crime) thought the appellant “had snitched on him * * * and he would get even with me even if he had to come down here and plead guilty and say I was with him and implicate me and everything else.” Two of the witnesses — the appellant’s mother-in-law and Happel’s girl friend — had “disappeared.” He said he was also prejudiced by the detainers because he came up for parole in February 1968 and the Board asked him about the detainers. He felt it “hindered” his parole. The State did not offer evidence. With regard to the Intrastate Detainer Act, defense counsel argued that the indictments should be dismissed because the warden had not given the appellant the required information concerning them and that he was prejudiced. The court said it was of the opinion “when we consider all of these circumstances * * * that there has been no unreasonable delay which would prejudice the defendant and, that it would appear that the matter proceeded normally.” It denied the motion to dismiss.

The evidence did not establish that the appellant made request for final disposition of the untried complaints within 30 days of notification of them. The Act was not available to the appellant for that reason. Even on an assumption that the letter of 15 September 1967 was such request, and that it was filed on time, it was not accompanied by a statement from the warden containing the information required by the Act. The Act was not available to the appellant for that reason. And even if the evidence before the court be considered as showing that the appellant was precluded from filing the request as required because the warden, although he had knowledge, did not inform the appellant of the source and contents of the untried complaints and of the appellant’s right to request final disposition thereof, no relief was available to the appellant under the Act. And even had the evidence proved that the appellant made request as required but that the warden failed to deliver it, accompanied by the statement, to the appropriate State’s attorney and the court, no relief was available to the appellant under the Act. In short, for reasons we have herein before stated, since it was not established that the appellant and the prison officials did all that they were called upon to do by the provisions of the Act, the Act was not invoked, no matter where the fault lay.

On the issue that the appellant was not brought to trial within the time required by Md. Code, Art. 27, § 616S, we find no error in the denial of the motion to dismiss the indictments.

The Constitutional Aspects of the Delay in Trial

The appellant was indicted on 16 January 1968 and went to trial on 7 March 1968. We think it obvious that the period between 16 January 1968 and 7 March 1968 was not a delay in the constitutional sense. See Stevenson v. State, 4 Md. App. 1. The offenses alleged were committed on 12 November 1966. The Court of Appeals and this Court have held in cases where the contention of denial of a speedy trial stemmed from delay in indictment that the answer was that until the Grand Jury acted there was no case to be tried. Montgomery v. State, 4 Md. App. 473, 479, and cases cited therein; Falcon v. State, 4 Md. App. 467. The Grand Jury may act within the applicable period of limitations. Osborne v. State, 3 Md. App. 161, 163. We said in Montgomery, at 480, that adhering to the rule that until a grand jury acts there is no case to be tried and thus there could be no denial of a speedy trial prior thereto, does not stand a defendant defenseless against unreasonable, oppressive and capricious delay on the part of the State in obtaining an indictment. We noted that a defendant, in appropriate circumstances, could invoke Md. Rule 709 and that a delay in obtaining an indictment may constitute denial of due process of law. In the circumstances of this case, we see no denial of due process of law by delay in indicting the appellant. Nor do we believe that any delay in the circumstances here was a constitutional denial of a speedy trial in any event. The essential ingredient of a speedy trial is not mere speed but orderly expedition. Bryant v. State, 4 Md. App. 572; Tillery v. State, 3 Md. App. 142; Kelly v. State, 2 Md. App. 730. We cannot find from the evidence that the delay was purposeful or oppressive on the part of the State or that the appellant, having made demand for a speedy trial, but the delay being less than substantial, showed such strong possibility of prejudice as to compel dismissal of the indictments. Stevenson v. State, supra. See Frazier v. State, 5 Md. App. 88; Johnson v. State, 4 Md. App. 648.

On the issue that the appellant was not brought to trial within the constitutional guarantees of a speedy trial, we find no error in the motion to dismiss the indictments.

II

CORROBORATION OF THE ACCOMPLICE'S TESTIMONY

The appellant was convicted of breaking with intent to steal goods of the value of $100 and upwards, from the storehouse of Parker’s Inc., the storehouse of Fleetwood & Wilson Company and the storehouse of Maryland National Bank, each located in Hurlock, Maryland. He was also convicted of grand larceny of goods of the Maryland National Bank. All the offenses were alleged to have been committed on 12 November 1966. On appeal the appellant does not contest the proof of the corpus delicti of the crimes and he concedes that the testimony of the accomplice, William Crause Happel, as to his criminal agency was corroborated as to the breaking of the Maryland National Bank and the larceny of its goods. But he claims that there was no corroboration of Happel’s testimony as to his participation in the other two storehoitse breakings. Happel testified that for several weeks prior to 12 November the appellant rented a room in Happel’s mother’s house in Baltimore. The appellant made two telephone calls to Dorchester County “in an effort to locate Mr. Eugene Safrit,” the last one on 10 or 11 November. Happel and the appellant went to Safrit’s home, arriving about 9:00 or 10:00 P.M. on 11 November. The next night Safrit drove them to the Maryland National Bank in Hurlock and Happel and the appellant broke into the bank and stole a small safe which they put in the car driven by Safrit. They drove to “somebody’s chicken house,” broke open the safe, took money out of it, put the money “into a suitcase like bag,” put the safe back in the car, drove to a bridge, threw the safe over the side and drove back to Safrit’s house. (The safe was subsequently recovered by the police. Over $300 was taken from it.) “We drove around a couple of times and we went to the oil company and to another company — some kind of Western Union, and then we went back to Eugene’s house.” He said the appellant went back to Baltimore that night. Asked further about the other places they went, Happel said, “We went to some sort of a small company. I don’t know what it was. It had a Western Union sign hanging in front of it. I believe it was a hardware. * * * We went into there, and after-wards — there was nothing in there, it was a disappointment because nothing was gotten there. We went to an oil company and tried to open the safe in the oil company which was unsuccessful also.” The safe in the “other place was open * * * it had a note on there, said the safe was open.” Safrit gave them their share of the loot from the bank at his house — it was a change safe but Safrit gave them their share in bills “instead of having us carry the change because of this money was in change.” Happel did not further identify the “oil company” or the other company they broke into. The testimony of Safrit’s wife placed the appellant in the company of Happel and her husband immediately before the commission of the crimes and immediately after. Her diary, placed in evidence, showed under date of 10 November 1966 that “Nigro King,” identified by her as the appellant, called. Under 11 November the diary read, “company here.” She indicated the “company” was King and Happel. “They stayed all day and up until about 4:00 or 5 o’clock the next morning.” She identified as hers a bottle in which Happel said Safrit put the change from the bank safe. She identified a picture of the Safrit car and said that “the safe they had broke the upholstery on the door.” On cross-examination she said about 3:00 or 4:00 A.M. she heard “this rumble in the driveway and I looked out the window and I seen Mr. King — that man there (indicating the appellant) take a weird looking suitcase out of the back of our car and transfer it into his, which he had was an old jalopy which had temporary tags on it.”

This testimony of Mrs. Safrit tended to show that the appellant was identified with the perpetrators of the crimes and corroborated the accomplice’s testimony within the meaning of the rule requiring corroboration. Boone v. State, 3 Md. App. 11, 19-20. The corpus delicti of each of the crimes was proved and Happel’s corroborated testimony clearly showed the criminal agency of each of Happel, the appellant and Safrit as to the breaking of the Maryland National Bank and the larceny of its safe containing more than $100. The question as to the breaking of Parker’s Inc. and Fleetwood & Wilson Company, however, is not as the appellant presents it. It is not a question of whether Happel’s testimony was corroborated (we think that it was by the testimony of Mrs. Safrit) but a question of whether Happel’s testimony or other evidence proved that the appellant committed the breaking of the storehouse of Parker’s Inc. and Fleetwood & Wilson Company even though there was evidence that those storehouses had been broken on 12 November. Happel testified that after stealing the safe from the bank they went to “the oil company” and to “another company — some kind of Western Union * * * we went to some sort of a small company. I don’t know what it was. It had a Western Union sign hanging in front of it. I believe it was a hardware.” He said we “tried to open the safe in the oil company which was unsuccessful.” The safe in “the other place” was open— “it had a note on there, said the safe was open.” There is nothing in this testimony to establish that “the oil company” and the other company was Fleetwood & Wilson and Parker’s. Sergeant Emil Meyers of the Maryland State Police, testifying for the State, gave the substance of an oral statement made by the appellant, which the lower court, after receiving evidence out of the presence of the jury, determined preliminarily to have been freely and voluntarily made. The appellant told the police about the breaking of the Maryland National Bank and the larceny of the safe. The sergeant then said, “He also mentioned that they had pulled two other jobs right in the same town. One of them he knew and, I think it was at my naming of the Pure Oil Company. The other building he didn’t know what it was, but it was a building within the area of Hurlock.” The sergeant further testified that he was “in on the investigation” of the “Parker Implement Company” job and “in on the one on Fleetwood and Wilson” job. He said, “The Parker Implement Company was broken into through a side rear door. The side rear door would be facing the center of Hurlock and this is the method of entry in that establishment.” It was a “forceful entry.” As to Fleetwood & Wilson, “entry was made through a front door * * * It was forced and there were markings on the door.” The sheriff of Dorchester County (he was chief deputy sheriff on 12 November 1966) said he knew of the breaking that occurred at “Parker Implement Company.” Asked what type of business that company operated, he said, “It’s International Harvester, farm implements.” He also knew of the breaking in the “Fleetwood and Wilson Oil Company in Hurlock.” Eugene Safrit was a witness on behalf of the defense. He testified as to the Maryland National Bank breaking and larceny but did not mention the other two crimes on direct examination and was not asked about them on cross-examination. We think that the lower court erred in denying motions for judgment of acquittal, made at the close of all the evidence, as to the indictments charging the breaking of the storehouse of Parker’s Inc. and the storehouse of Fleetwood & Wilson Company. We feel that the evidence before the court did not show directly nor did it support a rational inference of the fact that it was the storehouse of Parker’s Inc. and the storehouse of Fleetwood and Wilson Company that were broken from which the jury could fairly be convinced beyond a reasonable doubt of the appellant’s guilt as charged. See Williams v. State, 5 Md. App. 450. There was nothing in Happel’s testimony to show that Fleetwood & Wilson was the “oil company,” the storehouse of which he said the appellant broke or that the other storehouse was that of Parker’s Inc. Although the appellant told the police sergeant they had pulled two other jobs in addition to the bank, and knew one building, “The Pure Oil Company,” he did not know the other building. There was no evidence .to show that “The Pure Oil Company” referred to “at the naming” hy the sergeant was Fleet-wood & Wilson and even though the sheriff referred to the “Fleetwood and Wilson Oil Company” there is no showing that this was the oil company designated by Happel or the appellant. There was no evidence that Parker’s Inc. had a Western Union sign in the front or that it was a hardware store as described by Happel. The sheriff described it as “International Harvester — farm implements” which did not identify it as the building referred to by Happel or the appellant. Neither Happel nor the appellant described how the storehouses they entered were broken and the testimony by the sergeant and the sheriff as to how entry was gained to the storehouses of Fleet-wood & Wilson and Parker’s did not identify them as the buildings referred to by Happel and the appellant. There was no evidence that it was the safe in Fleetwood & Wilson’s storehouse which had been left open with a note therein so stating or that the safe in Parker’s showed that an unsuccessful attempt had been made to force it open so as to identify those establishments as the ones to which the accomplice and the appellant referred. Other than being in Hurlock, the location of the storehouses was not determined. Safrit did not mention the “other jobs” and no official or employer of Fleetwood & Wilson or Parker’s testified. It may well be that the breakings of the storehouses of Fleetwood & Wilson Company and Parker’s Inc. were committed by the appellant, but we do not believe that the evidence was sufficient for the jury to be so fairly convinced beyond a reasonable doubt. We find that the lower court erred in denying the motions for judgment of acquittal as to indictments Nos. 2183 and 2185.

Ill

THE STATEMENT

The appellant contends that the oral statement made by him was improperly admitted in evidence. He does not claim that the statement was obtained by threat, promise or inducement but that there was not complete compliance with the procedural requirements of Miranda v. Arizona, 384 U. S. 436, and in particular that he was not advised that he had a right to have counsel present at all times during the questioning and that the State did not show that he waived his rights. This contention assumes that the challenged statement was obtained by a custodial interrogation within the meaning of Miranda; we do not think that it was so obtained.

Sergeant Meyers testified that shortly before 16 June 1967 he received an order from the Waterloo Barracks of the Maryland State Police to go to the House of Correction. A prisoner named Robert King “requested to talk to a trooper from the eastern shore.” On 16 June he went to the institution and saw the appellant. They were escorted to a private room, the Sergeant identified himself and told the appellant he was there in response to his request to see a trooper. The Sergeant did not know who the appellant was and did not know what the appellant wanted to talk about. The appellant told him “he wanted to clear up what cases he was involved in on the eastern shore and that he was willing to tell me all about them.” The Sergeant thought it was his duty to inform the appellant of his constitutional rights at this point and gave him the Miranda warnings. The appellant “smiled and indicated he knew all this.” He “then proceeded in narrative form to tell about the storehouse breakings in Hurlock on 12 November 1966.” The appellant testified that Meyers told him he had received word that the appellant wanted to talk to the Maryland State Police. “And when he introduced himself he said he was from down here (the eastern shore), and I went ahead and told him I was talking about the Maryland State Police that could handle all these charges pending in all the counties.” The Sergeant said that he could not help him “about all the counties.” The “constitutional rights came up” and the Sergeant said, “You know all that stuff * * * You know what your constitutional rights are * * * No need of me going into all of that.” The appellant then “had a conversation” with the Sergeant about the charges on the eastern shore. In rebuttal the Sergeant denied the appellant’s version regarding the constitutional rights and said that he “went over each of these points (the Miranda warnings) precisely” and repeated in detail the warnings given.

The Sergeant, out of an abundance of caution, followed the Miranda procedures, but we do not think it was necessary in the circumstances. Even though the appellant was “in custody” by reason of his incarceration for an unrelated offense we do not believe that the challenged statement was obtained under circumstances likely to affect substantially the appellant’s will to resist and compelled him to speak where he would not otherwise have done so freely. See People v. Rodney P., 233 N.E.2d 255, 286 N.Y.S.2d 225. The dangers Miranda intended to guard against were here not present. We do not think that the appellant was “swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to * * * techniques of persuasion.” (Miranda at p. 461). Rather the lower court here could have properly found from the evidence that the appellant was confronted by the police at his request, that he talked without being subjected to questioning and that he made the statement willingly and without persuasion. Thus the statement was not obtained by a “custodial interrogation” within the Miranda concept. See Gaudio and Bucci v. State, 1 Md. App. 455. The statement being otherwise free and voluntary, it was admissible. The giving of the Miranda warnings was more than that to which the appellant was entitled, and any defect in them, if there was any defect, was immaterial. We find no error in the admission of the statement.

IV

THE REQUEST TO DISMISS COUNSEL

On the morning of the second day of trial the appellant requested a conference, out of the presence of the jury, with the judge, defense counsel and the State’s Attorney. Those persons conferred in the judge’s chambers in the presence of the sheriff. The appellant wanted his appointed counsel dismissed because “I don’t feel that I am being represented by the rights.” He complained that counsel had not cross-examined Mrs. Safrit “the way he should” although he also said, “I don’t want to tell the truth about the things — I’m afraid of getting Mrs. Safrit in trouble.” He suggested that Franklin Eugene Safrit, a co-defendant, already convicted and serving a sentence, and who was to testify for the State, had been represented by his counsel, but counsel made clear that he had brought this to the appellant’s attention about the middle of January and had asked the appellant “if you were satisfied that I could handle your case even though you knew that I had represented Safrit at his guilty plea” and had received no indication from the appellant that he did not desire counsel to continue to represent him. He said that the motion to dismiss the indictments had not included as a ground that copies had not been given him but the docket entries read, “Copies issued in duplicate, with copy of Indictment and True Bill for the Defendant.” And the court said that it would “entertain it now as a separate ground as a motion to dismiss” and overruled it. The appellant raised other matters with regard to the conduct of the proceedings which he alleged denied him a fair trial which the court deemed to be without substance and we agree. It was the opinion of the court that the appellant’s counsel was “entirely competent and has represented you adequately so far.” We see nothing in the record’ to indicate otherwise and find no error in the denial of the request to dismiss defense counsel in the middle of the trial.

As to No. 2184 criminal law: judgments affirmed; as to each of No. 2183 and No. 2185 criminal law: judgment reversed and remanded for a new trial.

Thompson, J.,

dissenting:

I cannot agree that the trial judge erred when he denied the motion for judgment of acquittal as to indictments nos. 2183 and 2185. Since the evidence to support these indictments is fully set out in the majority opinion I shall not repeat it except to point out that the evidence showed that three separate breaking and enterings occurred within the town of Hurlock during the night of November 12, 1966. The town of Hurlock, according to the 1960 census, had a population of only 1,035 people. I think it most unlikely that more than three such crimes occurred within such a small community on the same night and that this inference, together with the other testimony, clearly tied in the accomplice’s testimony to the two indictments in question and to the testimony of the other witnesses. I point out first: that a motion to acquit should be denied if there are rational inferences or credible evidence to support the verdict, see Williams v. State, supra (majority opinion) and secondly: that it is unnecessary for the state to prove guilt to a mathematical certainty; a moral certainty is sufficient. Pettis v. State, 2 Md. App. 651, 236 A. 2d 429, Johnson v. State, 227 Md. 159, 175 A. 2d 580. Judge Anderson joins in this dissent.

      . Chapter 628 designated the section as 616A but since §§ 616A-R had been previously added by Chapter 627, Acts 1965 (Interstate Detainers) it was designated as § 616 S.

      . Chapter 303, Acts 1968, effective 1 July 1968, amended the statute to make it applicable also to prisoners serving a sentence in any county or city jail.

      . The deficiencies are emphasized by comparison of the Maryland Act with the Uniform Mandatory Disposition of Detainer Act, 9B U.L.A. 365-368, the Kansas “Uniform Mandatory Disposition of Detainers Act”, G.S. 1959 Supp. § 63-2901 through § 62-2905, and the Missouri “Uniform Mandatory Disposition of Detainers Law”, V.A.M.S., §§ 222.080-222.150. Whether these deficiencies in the Maryland Act render it unconstitutional were not raised below. As the point was not tried and decided by the lower court, it is not properly before us and we do not consider it. Md. Rule 1085.

      . The Uniform Act and the Missouri and Kansas Acts provide that the custodial official shall send the request and certificate (statement) “forthwith” to the court and presecuting official by registered or certified mail, return receipt requested. U.U.A. 9B, § 2; V.A.M.S., § 222.090 (Missouri); G.S. 1959 Supp. 62-2902.

      . The Uniform Act and the Missouri and Kansas Acts provide that the prisoner be “promptly” informed of the indictment and of his right to make the request and that if he is not so informed within one year the prisoner is entitled to a final dismissal of the indictment. U.L.A. !)B, § 1(c); V.A.M.S., § 222.080-3 (Missouri); G. S. 1959 Supp. 62-2901 [c] (Kansas).

      . The Uniform Act and the Missouri and Kansas Acts provide specifically that if the indictment is not brought to “trial” within the time limitation specified the sanction is invoked. The time limitation suggested in the Uniform Act is 90 days from the receipt of the request and certificate by the court and prosecuting official. In the Missouri and Kansas Acts it is 180 days. In each Act the time limitation is subject to extension as in the Maryland Act. U.L.A. 9B, § 3; V.A.M.S., § 222.100 (Missouri); G. S. 1959 Supp. § 62-2903 (Kansas).

      . The testimony of the appellant was to this effect and it was uncontradicted. We also assume that it was uncontroverted and undisputed. However, we note that there is a distinction between uncontradicted evidence which a trier of fact might disbelieve and uncontroverted or undisputed facts which present only a question of law. Facts may be uncontradicted and at the same time be disputed or controverted. Edwards v. State, Memorandum on Motion for Reargument, 198 Md. 132, 158.

      . This statement also corroborated the accomplice’s testimony as to the offenses with respect to the Maryland National Bank.

      . The instant case is thus factually distinguishable from Hunt v. State, 3 Md. App. 443.

      . Franklin Eugene Safrit was not called by the State but by the defense and testified in behalf of the appellant.

      . At the time of sentencing the lower court told the appellant, “[I]n my opinion your attorney had ably defended you with what he had to work on. I think that you didn’t have a great deal to work with. In the opinion of this court you have been ably defended. Your record is terrible.. There is not a break in it. It starts in ’48 when you were quite young; but there is little break in it since then.”

      . This is a matter of which the court could take judicial notice. See Line v. Line, 119 Md. 403, 407, 86 A. 1033 (the calendar); Dean v. State, 205 Md. 274, 107 A. 2d 88, 91 (That certain streets are located in Baltimore City) and 1 Jones: Hvidence § 142, n.7 (5th Ed.) (the census).