author: Orth, J.,

text:
    ROBERT CLARENCE BRYANT v. STATE OF MARYLAND
    [No. 371,
    September Term, 1967.]

      Decided July 24, 1968.

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

      Robert A. Sapero for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney for Baltimore City, and Bred Grant, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty at a court trial in the Criminal Court of Baltimore of assault with intent to rob and sentenced to imprisonment for a term of 4 years.

SRBBDY TRIAL

The appellant was arrested on 4 July 1967 and indicted and arraigned during that month. Counsel, appointed for him on 2 August, filed a motion for discovery which was answered by the State on 16 August. The answer gave the name of the prosecuting witness as Samuel J. Moore but the indictment charged the appellant with robbing Samuel J. Harris. Counsel brought this to the attention of the State and an indictment correctly stating the name of the victim was returned on 21 August. Counsel filed a motion for a speedy trial on the original indictment on 11 September. The appellant was arraigned on the new indictment on 13 September. He filed a motion for a speedy trial on the new indictment on 19 September. Trial commenced on 4 October and was concluded on 5 October. On 4 October, prior to trial, the appellant moved to dismiss the new indictment on the ground that he had been denied a speedy trial and the court denied the motion. He contends the court erred in denying the motion. We do not agree.

“A speedy trial is, in general, one had as soon as the prosecution, with reasonable diligence, can prepare for it; a trial according to fixed rules, free from capricious and oppressive delays, but the time within which it must be had to satisfy the guaranty depends on the circumstances.” State v. Long and Nelson, 1 Md. App. 326, 332, citing Jones v. State, 241 Md. 599, quoting, at 608, 22A C.J.S. Criminal Law, § 467(4).

One of the factors relevant to a consideration of the circumstances in determining whether a delay in trial assumes constitutional proportions is the length of the delay. Stevenson v. State, 4 Md. App. 1, 11. An accused is protected only against unreasonable or unnecessary delay. He is not entitled to an immediate trial as the State is entitled to time to prepare for trial with reasonable diligence and also to any reasonably needed' time to conform with the trial court’s calendar of criminal cases, in the actual trial of the cases. Fabian v. State, 3 Md. App. 270, 286. In the instant case, even assuming that the time from the-arrest of the appellant to his trial was properly computed as chargeable to the State, the period was only three months. We have no difficulty in finding that this was not a delay of constitutional proportion, that it was not capricious or purposeful and that, therefore, it was not unreasonable or unnecessary. Thus, there being no delay in the constitutional sense, the appellant was not denied a speedy trial and the lower court did' not err in denying the motion to dismiss the indictment.

THE SUFFICIENCY OF THE EVIDENCE

Officer John Hawthorne and Officer Francis Miller, both members of the Baltimore City Police Department, and Samuel J. Moore testified on behalf of the State. Hawthorne and Miller were on duty in a radio car on 4 July 1967, and about 2:15-A.M. were cruising in the 600 block of Pitcher Street. Hawthorne saw “two colored men standing over another male which was on the ground, and the two colored males were beating him about the head and one fellow was kicking him”. Miller, who was driving, stopped the car and the two men who had been beating the prone man ran. Hawthorne pursued them and .after a chase of several blocks apprehended the appellant when he fell. The appellant was in sight of Hawthorne during the entire chase and was positively identified by the officer as one of the men participating in the assault. Hawthorne made a “pat-•down search” for weapons and found none. He did not put his hands in his pockets or ask him to empty his pockets but “just felt his body to see if there were any hard objects that might be weapons”. He did not see the appellant throw anything away during the chase. Miller “observed what appeared to be a fight or something going on on the pavement”. He stopped the •car and the men ran, pursued by Hawthorne. He characterized “what appeared to be a fight” as one man on the pavement and two men beating him. The identity of the man being beaten was later determined to be Samuel J. Moore. He had been drinking, his mouth was bleeding and “he had some bruises on him, contusions”. On cross-examination Miller said that he asked the appellant “later on” if he had “taken anything” and the appellant denied “taking anything”. He also said that Moore was intoxicated. Moore testified that on 4 July about 2:15 A.M. '“I was walking down the street and was attacked from behind. I lost a watch, keys, and wallet * * * It was on Pennsylvania Avenue and Pitcher Street, walking down the street, and I was .attacked from behind. That’s all I remember”. He had just come from a bar in the 800 block Pennsylvania Avenue and “hadn’t gone too far” before he was attacked. He did not “remember ■exactly how” he was attacked. He thought two people were involved and although he recalled being knocked down he could recall nothing involving the attack thereafter. The transcript ■then reads:

“Q. All right Now, I believe you testified as to what was taken from you during this attack.
A. Watch, keys and wallet.
Q. Do you recall what the value of the watch was ?
A. No, not offhand.
Q. What kind of watch was it, Mr. Moore? Was it a wristwatch or pocketwatch ?
A. Wristwatch.
Q. Do you recall what the make of the wristwatch was?
A. No, I don’t.
THE COURT: Do you remember what you paid for it ?
A. It was a gift.
THE COURT: Pardon?
A. It was a gift.
THE COURT: It was a gift? All right.
BY MR. GRANT:
Q. And you testified also that — what else, other than the watch, was taken ?
A. Watch, keys, and wallet.
Q. What kind of keys were they?
A. House keys.
Q. Do you recall how many there were?
A. Only one.”

He could not identify either of his attackers and did not remember what happened after the officers arrived. He went to Provident Hospital and thought “I went on my own, I’m not sure”. His only injury was a sore back. The only place the men hit him was on the lower part of his back. On cross-examination he said that he had been in the bar “about an hour or so” and had three bottles of beer. He “had a little bit of whiskey the early part of the day”, but he was not drunk when he was attacked. He denied that he could have lost the wallet some other place saying, “No, 1 had the wallet at the same time they attacked me”. He did not remember the make of the watch, but it was silver and round with a metal band. He said he had “it at the same time the attack came”. The watch, wallet and keys “were taken at the same time I was attacked because I remember having them on”. The court asked him, “Were they taken from you by the people who attacked you or not?” and he replied, “Yes”. The defense did not offer evidence.

The appellant was convicted of assaulting Moore with the intent to rob him. This crime is an aggravated assault requiring a specified intention in addition to the intentional doing of the actus reus itself — an intent specifically required for guilt of the particular offense, in this instance an intent to rob. So the State had to prove: (1) an assault on Moore; (2) made by the appellant; (3) with the intent to rob. It was clear from the testimony of the police officers that an assault was made on Moore and that the appellant was one of two men making it. The question is whether the evidence was sufficient to prove that the assault so made by the appellant was with an intent to rob. There is no presumption of law, either conclusive, or disputable, that an act was done with any specific intent unless a statute so provides and there is no such statutory presumption in Maryland with regard to assault with intent to rob. But the intent with which a harmful act is done is usually not expressed in words, and the trier of facts is permitted to draw such inferences of intent as are warranted under all the circumstances of a particular case. See Perkins, Criminal Law (1957) Ch. 7, § 3, p.674. We feel that the circumstances here warranted the trial court in drawing the inference that the appellant intended to rob Moore when he assaulted him. Moore testified that he had the wallet, watch and key at the time of the assault. There was no evidence of an argument or altercation before the assault, that there was ill-will between the victim and his assailants or in fact that he even knew them, or that the assault was provoked by other than an intent to' rob. That Moore was unable to give the make of the watch or its value and that only one key was taken and that he may have been intoxicated went only to the weight of his testimony, a matter for the consideration of the trial court. See Hutchinson v. State, 1 Md. App. 362. The appellant urges that the trial court stated that the testimony relied on by it in reaching a verdict was only that of the police officers. Therefore the testimony of Moore can not be considered nor can any inference be drawn from it, and as the testimony of the police officers was not sufficient to prove an intent to rob, the evidence did not support the verdict. At the close of all the evidence, defense counsel in argument claimed that there was a variance between the testimony of the officers and Moore. He pointed out that “The officers testified that there were facial abrasions, bruises and blood from the mouth. The man testified that he was beaten in the back and the back alone.” The statement of the trial court, made in arriving at its verdict and relied upon by the appellant for his allegation that the court did not consider the testimony of Moore, was: “The testimony of the victim, due to the condition of the victim, is not pertinent.” We do not take this statement to mean that the court did not consider any of the testimony of Moore or that it was unworthy of belief. Immediately before the statement the court said: “The testimony of the officers is that one of them (the assailants) kicked him.” The statement of the court must be considered within its frame of reference and not out of context. We think it obvious that the statement was made only in answer to defense argument as to the alleged variance between the nature of the assault as described by the officers and as described by the victim and not that the court found the victim’s entire testimony incredible. The court found the testimony of all the witnesses “quite clear in all the material aspects.” We find that there was evidence and rational inferences properly drawable therefrom sufficient for the trial court to find the appellant guilty beyond a reasonable doubt. Therefore the judgment of the trial court on the evidence was not clearly erroneous and we may not set it aside. Md. Rule, 1086.

The appellant also contends that “if the specific intent was present, then the facts indicate that a robbery was consummated, and not an assault with intent to rob.” He claims that “if a robbery was committed, the verdict was improper and cannot stand.” Under the doctrine of merger followed by this Court, on proper factual circumstances in a particular case, assault with intent to rob may merge into robbery. Price v. State, 3 Md. App. 155; Tender v. State, 2 Md. App. 692. But the doctrine is applicable only when there have been convictions on each offense. It has no application where there is one trial on multiple charges, except to preclude multiple convictions on merged offenses. Gee v. State, 2 Md. App. 61. Since the appellant was not convicted of robbery, there was no merger into it of the assault with intent to rob. Under these circumstances the acquittal on the greater offense did not preclude conviction on the lesser. The verdict was not improper.

IMPEACHMENT OP THE PROSECUTING WITNESS

On cross-examination of Moore defense counsel asked: “Mr. Moore, do you remember your whereabouts yesterday?” The State objected on the ground of relevancy. Counsel urged that the question was posed to impeach the witness. The objection was sustained. The court said that objection to a further question as to whether Moore remembered being in court the pre-' •ceding day would be sustained “unless you can show me that it is material or relevant in some fashion”. Counsel said, “I am trying to ascertain if the man can recall properly some ‘things that happened. I think this goes to, as far as credibility for impeachment purposes. If the man doesn’t remember where he was yesterday, I think this is surely significant.” The objection was sustained, the court remarking that “we are not con■cerned with anything that happened yesterday. We are con•cerned with something that happened on the 4th of July.” The appellant contends that the trial court erred in sustaining the •objection.

The appellant claims the questions disallowed were proper to test the credibility of the witness. The general rule is that a witness may be cross-examined on such matters and facts as :are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or cause, his bias or the like. Howard v. State, 234 Md. 410; 415; Kantor v. Ash, 215 Md. 285, 290. But the allowance or disallowance of certain questions on cross-examination is normally left to the sound discretion of the trial judge, Holt v. State, 3 Md. App. 544, and it is when there is an abuse of this discretion to the prejudice of the accused that we must reverse. Shupe v. State, 238 Md. 307, 310-311. Even if the ability or inability of the witness here to recall his whereabouts as posed by the questions could be said to be a test of his memory or to encompass matters relevant and material and not collateral to his testimony with regard to his credibility, we find no abuse of discretion by the trial judge in their disallowance so as to require reversal of the judgment.

Judgment affirmed.

      . The appellant also moved to dismiss the original indictment. The motion was granted “because there has been a superseding indictment filed.”

      . The other factors are the reason for the delay, prejudice to the accused and waiver by the accused. See Hall v. State, 3 Md. App. 680, 686.

      . But see Montgomery v. State, 4 Md. App. 473.

      . This is an adjunct to the basic rule relating to the scope of cross-examination stated in Williams v. Graff, 194 Md. 516 and quoted in Shupe v. State, 238 Md. 307, 311 as applicable in Maryland. The questions were clearly not encompassed within the basic arule.


source: Caselaw Access Project

author: Anderson, J.,

license: Public Domain

text:
    JAMES G. McCLOSKEY v. DIRECTOR, PATUXENT INSTITUTION
    [No. 95,
    September Term, 1967.]

      Decided July 24, 1968.

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

delivered the opinion of the Court.

James G. McCloskey seeks leave to appeal from an order of the Circuit Court for Cecil County (George B. Rasin, Jr., J.) committing him to Patuxent Institution. A jury had redetermined that the applicant was a defective delinquent pursuant to Maryland Code (1967 Repl. Vol.), Art. 31B, § 10.

On September 19, 1958, the applicant was convicted of assault and battery in the Circuit Court for Cecil County, for which he received a term of three years in the Maryland House of Correction. Having been referred to the Patuxent Institution for examination, the applicant was subsequently found to-be a defective delinquent and was committed to Patuxent. This commitment was upheld by the Court of Appeals of Maryland. McCloskey v. Director, 230 Md. 635.

On April 30, 1965, the applicant received a redetermination hearing at which a jury found him to still be a defective delinquent. On appeal to the Court of Appeals the case was remanded for further proceedings, i.e., a new redetermination hearing. McCloskey v. Director, 245 Md. 497. From this new redetermination hearing- — where applicant was again found to still be a defective delinquent — the instant application for leave to appeal was filed.

In support of his application for leave to appeal, the applicant raises nineteen (19) contentions. These contentions, none of which has merit, will be considered in the order in which raised.

1. That his conviction of assault and battery did not warrant his being committed to Patuxent. Reference is made to Art. 31B, § 6, which provides that a person may be examined for possible defective delinquency upon conviction for a crime of violence. Assault and battery clearly falls within the statute. McDonough v. Director, 229 Md. 626.

2. That the redetermination hearing which is the subject of the instant application for leave to appeal, was improper because there is no authority under Art. 31B for the court to grant new trials. If an application for leave to appeal is granted, this Court has authority to affirm, reverse or modify the order appealed, or to remand the case for further proceedings. Maryland Code (1967 Repl. Vol.), Art. 31B, § 10.

3. That upon remand of his case for a new redetermination hearing, he should have been released because his sentence (three years) had expired. It is obvious that remand of the case served only to nullify the then most recent redetermination hearing, leaving the earlier redetermination in full force and effect. Concerning the question of release because a period of time equal to the length of his sentence had elapsed, suffice it to say that Art. 31B, § 9, provides for confinement of a defective delinquent “for an indeterminate period without either maximum or minimum limits.” Gray v. Director, 245 Md. 80.

4. That the lower court erred by refusing to postpone his redetermination hearing until after various writs and appeals therefrom, filed in the Federal Courts, had been decided. It is within the sound discretion of the trial court to grant a postponement in defective delinquent proceedings and the trial court’s ruling in this regard will not be disturbed absent a clear showing of abuse of that discretion. Green v. Director, 3 Md. App. 1. The instant redetermination hearing was conducted pursuant to the mandate of the Court of Appeals, and the conduct of said hearing, despite the pendency of various writs and appeals in the Federal Courts, clearly does not amount to an abuse of discretion.

5. That the lower court denied him a postponement because said court knew that his redetermination as a defective delinquent would nullify his pending rights in the Federal Courts, and thereby violate his rights under the Fourteenth Amendment. This amounts to a bald allegation on the part of the applicant and is not grounds for relief. Kroneburg v. Director, 244 Md. 734.

6. That the lower court erred in refusing to grant him a removal. There is no constitutional or statutory authority for a right of removal in defective delinquent proceedings. Bullock v. State, 230 Md, 280.

7. That his constitutional rights were violated because he was denied bail pending his new redetermination hearing. Again, the applicant overlooks the fact of his adjudication as a defective delinquent, and his commitment to Patuxent for an indeterminate period without either maximum or minimum limits. Accordingly, he was not entitled to release or bail while awaiting his redetermination hearing. Moreover, there is nothing in Art. 3IB which authorizes bail for a person being held at Patuxent. Bullock v. Director, 231 Md. 629.

8. That the lower court erred by denying the applicant’s request for a pretrial conference and by denying his request to “determine” the following questions:

1) What is the State going to attempt to prove at trial. That I am a defective delinquent or that I still am one.

2) Whether the same evidence used to convict me of defective delinquency in September, 1962, will be admissible at this trial.

3) Whether the State will use only evidence which shows-that there has been no change in my status or mental condition since my first trial and conviction for defective delinquency.

4) Whether you intend to give the State and its witnesses free rein to say whatever they please and to use any statement or report they want to.

5) Whether you intend to allow the jury (this time) to hear and consider my plea of “Not to be a Defective Delinquent by Reason of Insanity.”

We find no error in the refusal of the lower court to grant the applicant’s requests for such is within the discretion of the court. Maryland Rule 504.

9. That evidence used against him at his original defective delinquency hearing was improperly admitted in the redetermination hearing of June 5, 1967. Such evidence is admissible against him and his entire record is relevant. Pence v. Director, 235 Md. 651.

10. That the lower court erred in not requiring the State to divulge what “reports and statements” it intended to use as evidence against the applicant at the hearing of June 5, 1967. As stated in allegation No. 9, the entire record of the applicant is relevant and admissible into evidence against him. Pence v. Director, supra. The State, therefore, could use any and all reports contained in the applicant’s record. The applicant, of course, has the right to inspect such records. McCloskey v. Director, 245 Md. 497.

11. That the lower court erred by refusing to require the State to furnish the applicant with information concerning efforts of the State to determine the accuracy of its reports and statements. The question of accuracy goes to the weight of the evidence and in the instant case was a matter for the jury to decide. Gray v. Director, supra. Of course, the applicant had the right to call staff members from Patuxent. Brunson v. Director, 239 Md. 128.

12. That the lower court erred in prohibiting him from cross-examining Dr. Harold M. Boslow, Director of Patuxent Institution, relative to an article written by him. The article in question was not covered in direct testimony. Ordinarily, the scope of cross-examination is a matter within the sound discretion of the trial judge and we cannot say that in this instance the restriction imposed was unsound or prejudicial to McCloskey. Davis and Peterson v. State, 1 Md. App. 581.

13. That the lower court erred in not allowing him to cross-examine State witnesses relative to crimes he did not commit. As in contention No. 12 we cannot say that the restriction imposed was unsound or prejudicial to the applicant.

14. That the State’s witnesses perjured themselves by testifying that he was not mentally ill, i.e., insane. The applicant’s argument is not so much that the doctors perjured themselves, but that their testimony and diagnosis amounted to a showing that he was “mentally ill”, “medically insane”, and “insane.” This is obviously a conclusion of the applicant that at most goes to the weight of the evidence and therefore was properly determined by the jury. Gray v. Director, supra.

15. That the lower court erred in not affording him a sanity hearing. This contention was earlier found to be without merit. McCloskey v. Director, 1 Md. App. 281.

16. That the presiding judge had also presided at the applicant’s prior redetermination hearing which on appeal had been remanded for a new hearing, thereby prejudicing the applicant. This is a bald allegation made by the applicant that is completely without merit. In the absence of constitutional or statutory provisions to the contrary, a judge who presided at a trial of a case which is reversed or appealed and remanded for a new trial is not disqualified to retry the case. Bd. of Med. Examiners v. Steward, 203 Md. 574.

17. That his constitutional rights to “due process” and “equal protection” were violated because he is being imprisoned solely on the basis of a mental illness without the benefit of a sanity hearing and without legal safeguards and protections afforded in sanity hearings. This allegation is without foundation for reasons set forth in contention No. 15 and by the Court of Appeals in McCloskey v. Director, 245 Md. 497, 506.

18. That a proceeding under Art. 31B exposes the applicant to “infamous imprisonment” without according him the legal safeguards and protections that are available in criminal prosecutions. The procedural safeguards provided by Art. 31B avail the applicant all of the requirements of basic fairness and do not violate his right to due process. Director v. Daniels, 243 Md. 16. Moreover, commitment proceedings under Art. 3IB afford the person involved extensive protections, and in many respects they are such protections as are afforded the accused in a criminal case. Mastromarino v. Director, 244 Md. 645.

19. That the State’s witnesses based their diagnosis of the applicant as a defective delinquent upon his record — rather than upon psychiatric interviews, personal interviews and psychological tests. The applicant overlooks the fact that at a redetermination hearing there need not be new facts and a new record to show antisocial conduct, but that a redetermination of defective delinquency may be made on the basis that it is not reasonably safe for society to terminate the confinement and treatment. Creswell v. Director, 234 Md. 620. See Simmons v. Director, 231 Md. 618.

Application denied.


author: OrTh, J.,

text:
    WILLIAM FRANCIS REAGAN v. STATE OF MARYLAND
    [No. 282,
    September Term, 1967.]

      Decided July 25, 1968.

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

      Orie Seltzer, with whom were Theodore B. Breaidt and Herbert P. Suskind on the brief, for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince Georgefs County, and John R. Miles, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   OrTh, J.,

delivered the opinion of the Court.

The appellant was found guilty by a jury in the Circuit Court for Prince George’s County of housebreaking and grand larceny, being the first and second counts respectively of the indictment under which he was charged. Concurrent sentences of 10 years on the first count and 15 years on the second count were imposed “to run consecutively with any sentence previously imposed by any Court of competent jurisdiction.”

THE INDICTMENT

The first count of the indictment charged that the appellant “* * * thg dwelling house of one Gaston Paul Jennett and Sheila Jennett * * * feloniously did break with intent to commit a certain felony there and therein, to wit: with intent then and there certain goods and chattels in the said dwelling house then and there being found, then and there feloniously to steal, take and carry away, contrary to the form of the Statute in such case made and provided, and against the peace, government and dignity of the State.” The appellant contends that the lower court erred in denying the motions for judgment of acquittal “with regard to the defect in the first count of the indictment in that the said indictment failed to charge an essential element of the offense of housebreaking, namely, that the breaking was in the daytime”. The question is whether the first count of the indictment sufficiently stated an offense so as to permit the sustaining of the conviction under it.

Under the common law, the felony of burglary was the breaking and entering of a dwelling house of another by night with the intent to commit a felony. Clark and Marshall, Law of Crimes (6th Ed.) § 13.00 p. 870. It is a felony in Maryland, Maryland Declaration of Rights, Art. 5, and although the penalty for its commission is fixed by statute, the crime of burglary is not defined therein, Md. Code, (1967 Repl. Vol.) Art. 27, § 29. See McGrow v. State, 234 Md. 273, 275; Hannah v. State, 3 Md. App. 325. So if the breaking and entering of the dwelling house at night is with the intent to steal personal goods of another under the value of $100 the offense is not common law burglary, for the larceny of goods under the value of $100 is designated a misdemeanor by Code, Art. 27, § 341. But by legislative enactment the felony of burglary includes the breaking and entering of “any dwelling house in the nighttime with the intent to steal, take or carry away the personal goods of another of any value therefrom,” Code, Art. 27, § 30(a), and the maximum penalty of 20 years established by § 29 is for both the statutory burglary and common law burglary. In Maryland neither common law burglary nor statutory burglary encompasses the breaking of a dwelling house in the daytime. This gap was filled by legislative enactment. By Code, Art. 27, § 30(b) there is proscribed the felony “of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom” and a maximum penalty of 10 years therefor is authorized. Thus although not designated as burglary, the offense proscribed by § 30(b) includes the essential elements of both burglary and statutory burglary with two exceptions: (1) the breaking need not be in the nighttime, and (2) merely a breaking is required rather than a breaking and entering. And while a person convicted of common law and statutory burglary must restore the thing taken to the owner thereof or pay him the full value thereof under the provisions of § 29, no such requirement is provided by § 30(b) upon the conviction of daytime housebreaking. It is clear, therefore, that in Maryland there are three separate felonies under which the breaking of a dwelling house is proscribed — common law burglary, statutory burglary and daytime housebreaking. Under the provisions of Code, Art. 27, § 31 in any indictment for the crime of burglary it is sufficient to use a formula substantially to the effect: “that A-B on the......day of ...., 19.., in the County (City) aforesaid feloniously committed burglary of the dwelling of C-D; * * This formula is sufficient to charge both common law burglary and the statutory burglary under § 30(a) but no formula is provided by statute for daytime housebreaking under § 30(b).

“The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so in-artificially drawn that it would have been open to attack in the trial court.” Putnam v. State, 234 Md. 537, 541.

In our view the indictment in the instant case does charge an offense, as it alleges all the elements of the crime proscribed by § 30(a) — the breaking of a dwelling house with intent to steal. We think that the time of the offense, “in the daytime”, is not an essential element of the crime, and is not used in the statute to define or characterize the offense, but merely to distinguish it from burglary which must be committed in the nighttime. We find support in our view in the rationale of St. Clair v. State, 1 Md. App. 605 and Gazaille v. State, 2 Md. App. 462 where we held that lack of sufficient proof that the breaking occurred in the daytime as opposed to the nighttime did not require reversal of a judgment upon conviction of a charge of daytime housebreaking as we felt that when the proof fails to show the time of the offense, then the accused may be punished under the statute providing the lesser penalty. 1 Md. App. 622. As it is not necessary to prove that the offense occurred in the daytime, it is not necessary to allege that fact. And the omission of an allegation that it did so occur is neither a matter of substance, precluding its addition by amendment, Md. Rules, 714a; Corbin v. State, 237 Md. 486; Watkins v. State, 4 Md. App. 47, nor an essential element or fact “constituting the specific offense,” Md. Rules, 712a.

The appellant cites no authorities which support his contention. We find further support for our view in cases in other jurisdictions. In State v. Baker, 92 Utah 567, 70 P. 2d 733, 734 (1937) the court said:

“Certainly, the weight of authority — practically all the authority — is to the effect that an indictment for burglary in the daytime is good without expressly alleging that it was in the daytime.”

In State v. Eubanks, 77 Id. 443, 294 P. 2d 273 (1956) it was held that the state was required to allege and prove the time of day for conviction of nighttime burglary and that a charge which does not allege the time of day charges only daytime burglary. In State v. Newell, 93 Vt. 81, 106 A. 561 (1919) it was held that it was not necessary to include “daytime” in an indictment for a lesser burglary offense, although it was necessary to include “nighttime” in an indictment for the greater offense. State v. Neddo, 92 Me. 71, 42 A. 253 (1898) and Carr v. Lanagan, 50 F. Supp. 41 (Dist. Ct. Mass. 1943) are to like effect. Compare In Re Rhyndress, 317 Mich. 21, 26 N. W. 2d 581 (1947)

Of course, an indictment must be sufficiently definite so as to inform the accused of the charge against him, to enable him to prepare his defense and to protect him against subsequent prosecutions for the same offense. Lynch v. State, 2 Md. App. 546, 562. The indictment here fulfilled these requirements. Under its charge the only offense of which the appellant could have been properly convicted was daytime housebreaking. A conviction of burglary cannot be sustained without proof that the offense occurred in the nighttime, Bright v. State, 4 Md. App. 154, and the charge must so allege. Further the indictment here alleged only a “breaking” in accordance with the provisions of Code, Art. 27, § 30(b), and not an “entering” which is an essential element of both common law and statutory burglary, Art. 27, § 30(a). We find nothing to indicate that the appellant was misled as to the charge against him or that he was actually prejudiced by the form of the indictment. We have found that the indictment did not “completely fail to state an offense.” But even though it alleged “all the elements of the offense intended to be charged” and apprised the appellant “of the nature and cause of the accusation against him”, if the appellant thought it was defective in its allegations or “so inartificially drawn that it would have been open to attack in the trial court,” he could have challenged its sufficiency by an appropriate motion under Maryland Rule, 725b, or if he had wished further details of the charge he could have demanded a bill of particulars under Rule 715a or moved for discovery and inspection under Rule 728. See Putnam v. State, supra, 545-546. He did none of these things but merely contended in furtherance of his motion for judgment of acquittal, that the first count of the indictment failed to charge an offense. We think that the first count of the indictment sufficiently stated an offense so as to permit the sustaining of a conviction under it and therefore that the trial court did not err in refusing to grant the motion for judgment of acquittal.

The appellant filed a motion to suppress and exclude evidence as seized by an “unlawful and illegal search.” The motion was denied at a hearing before the trial on the merits. Objections at the trial to the admission of the evidence seized were overruled and a motion at the conclusion of the testimony to ex-elude the evidence was denied. The appellant claims error in the rulings on the grounds that the arrest of the appellant was illegal, the search incident thereto unreasonable, and the seizure of the evidence unlawful.

THE ARREST

Evidence adduced at the hearing on the motion showed that Sarah Jean Moskel, while in her apartment on the second floor at s' Deer Park Drive, Gaithersburg, Maryland on 15 February 1967, heard a noise in the next apartment. She knew the resident of that apartment was working and looking out the window did not see his car. She went into the hall and again heard noises in the adjoining apartment. She looked out the window and saw two men- — “one was carrying rifles and the other man was carrying something covered with a sheet.” The appellant was one of the men. The men were both wearing gloves although it was an unusually warm day. She saw the men put the articles in the back of a station wagon. They then re-entered the building and went ro the third floor. The men carried a television-set from the building and put it in the “green Falcon station wagon,” which “had other things in it.” She had resided in the apartment house for four and a half years, knew that the twrn men did not reside there and had not seen their car before. She called the police. An officer came to her apartment and she related the facts to him. She “went around to different apartments” and “saw that they were broken into” and told the officer about them.

Corporal Ralph Cooley of the Montgomery County Police received a radio call in his cruiser about 2:30 P.M. on 15 February to go to 9 Deer Park Drive. He did not “remember the exact wording of the call. Something to the effect that two men were carrying property from the apartment building, placing it in a car to the rear of the building.” The only description of the men given that he could recall was that they were “two-white males.” The description of the car was that it was “a green or blue, light colored green or blue Falcon station wagon.” Upon arriving at the apartment building he saw “a ’63 Falcon, light blue in color, bearing Maryland tags parked in the rear of No. 9 Deer Park Drive. It was occupied by two-white males, one under the steering wheel and one on the opposite side in the front seat. I pulled in front of the vehicle. As I was getting out of the police cruiser, the operator, the one under the steering wheel, got out of the car and met me near the front of my car and near the front of his car. At this point I asked him for some identification, which he produced.” He told them they could not leave. He asked the appellant if that was his property he was moving. The appellant said it belonged to his girl friend whose name was “Keeney”, that she lived on the second floor and that he thought she was at work at GEICO but he did not know the phone number and was not sure she was there at the time. The officer could see that the station wagon contained a console model television lying face down. “The back seat was turned flat to make the entire back of the station wagon on a flat cargo space. It had several cases which appeared to be gun cases on the right side of the vehicle inside, and several pillow cases with articles in them * * *. The whole floor space was filled with what appeared to be pillow cases with articles in them, bedspreads, weapons in cases, other small numerous items from houses such as radios, et cetera.” There was no other vehicle “near this description” given on the lookout and the two men were the only ones to the rear of the building.

Officer Michael J. Keller of the Montgomery County Police received a radio call in his police cruiser on 15 February “to respond to No. 9 Deer Park Drive * * * The call came out stating that there was persons going into apartments, knocking on doors and seeing if the persons that lived in the apartments were at home. If not they were going into the apartments and taking things out.” The call included a license tag number of the car involved — EA 9792. He also received information on the radio while going to the scene that the car was registered in the name of the appellant and that the appellant was a known housebreaker. When he arrived at the scene Cooley was present. The appellant, identified by his drivers permit, was seated on the driver’s side in a Falcon station wagon bearing the license tag given in the lookout. Keller gave the information he had received to Cooley who went into the building and “checked the apartment.” Cooley ascertained that an individual by the name of Keeney lived on the second floor of the apartment house, but the individual was a male. He talked to Mrs. Moskel and went to the third floor and observed several apartment doors ajar. He placed the appellant and his companion under arrest.

The appellant urges that he was arrested by Corporal Cooley when that officer first arrived on the scene and that at that time Cooley did not have probable cause for the arrest nor is the record sufficient to show that any member of the police team had, at that time, probable cause for his arrest. But we need not decide the question raised by this argument for we think, assuming that an arrest was made as the appellant claims and that it was illegal, that there was a subsequent arrest of the appellant which was legal. When Cooley came out of the apartment building and placed the appellant under arrest he was in receipt of the information received on the radio by Keller, the information given him by Mrs. Moskel and had observed the broken apartments and the articles in the station wagon. We have no difficulty in determining that he then had probable cause to believe that the felony of daytime housebreaking, Code, Art. 27, § 30(b) or larceny, Code, Art. 27, § 340 had been committed and that the appellant was the one who committed it. Ervin v. State, 4 Md. App. 42, 45. Even if the initial arrest was deemed to be illegal, this did not vitiate the subsequent legal arrest in the circumstances here. Hewitt v. State, 242 Md. 111. And that this legal arrest may have been made for “possible housebreaking”, a crime which does not exist, is immaterial. “We think untenable the proposition that an arrest based on probable cause becomes unconstitutional because the crime is inaccurately described by an officer * * Simms v. State, 4 Md. App. 160, 167.

THE SEARCH

After the arrest of the appellant, which we have determined to be legal, other police officers arrived on the scene. One of them drove the appellant’s car to the police station. It was searched upon its arrival, about 3 :15 P.M., and an inventory made of the contents. The car was turned over to a Mrs. Reagan several days later. By the testimony of the officers on the subject, the car was taken to the station to search it for evidence of crime and to inventory its contents pursuant to an alleged regulation of the police department pertaining to impounded cars. Although a regulation was discussed, it was not otherwise identified or proffered. The lower court, after finding that the arrest was legal, held that the search of the car was not incident to the arrest as “too far remote in time and place.” However, it found that the search was reasonable under St. Clair v. State, 1 Md. App. 605. We think the instant case is clearly distinguishable from St. Clair, where at the time the inventory was initiated, the police had no reason to suspect that the goods in the car did not belong to the arrestee and the sole purpose in removing the goods from the car was to inventory them in order to protect the presumed owner and the police from charge of loss. We recognized in our holding “* * * the difficulty likely to be encountered in distinguishing a bona fide inventory from a mere subterfuge to search.” In the circumstances of the instant case, we cannot say that the search of the appellant’s car was a bona fide inventory and therefore reasonable under the holding in St. Clair. But we do think that the search was lawful as incident to the legal arrest. It is established that the arrest being legal, the police could, as an incident thereto, search the vehicle in which the appellant was seated at the time of his arrest. Barton v. State, 2 Md. App. 52; Gaudio v. State, 1 Md. App. 455. “And while ordinarily a search of a motor vehicle can be incident to an arrest only if it is substantially contemporaneous therewith and is confined to the immediate vicinity of the arrest, Preston v. United States, 376 U. S. 364, Wilson v. State, 2 Md. App. 210, in some circumstances a search may be deemed incident to an arrest, although not conducted at the scene of the arrest, when it is made with reasonable promptness at a police station to which the vehicle was towed immediately following the arrest.” Anthony v. State, 3 Md. App. 129, 133. For the ultimate test governing the validity of a search and seizure without a warrant is whether under the facts and circumstances present, the search was reasonable under the Fourth Amendment. At the time of the legal arrest of the appellant the police had probable cause to believe that a felony had been committed, that the appellant committed it and that the goods in his car, in plain view, were the fruits of the crime. To say, under these circumstances, that a search of the car on the street at the time of the arrest would be lawful but that the search would be rendered unlawful merely because the car was first taken to the police station would serve no purpose other than to substantiate Mr. Bumble’s opinion of the law. We hold — on the facts and circumstances of this case — that the search of the appellant’s car without a warrant, undertaken approximately one hour after his legal arrest and immediately upon its arrival at the police station, for the purpose of discovering evidence connected with a crime of which the appellant had been arrested, was valid on the ground that it was made incident to and substantially contemporaneous with his arrest. And we find further support for our holding in the language of the Supreme Court in Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216, 88 Sup. Ct. 1472, 20 L. Ed. 2d 538 (1968):

“Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. * * * The cases so holding, have, however, always insisted that the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.”

The record before us is clear that the officers who assisted in the search had reasonable or probable cause to believe that evidence would be found in the appellant’s car.

THE ADMISSIBILITY OF THE EVIDENCE

The crimes for which the appellant was tried and convicted and which are the subject of this appeal did not arise from the events on 15 February at 9 Deer Park Drive but from the breaking of the dwelling of Gaston Paul Jennett and Sheila Jennett at 6419 Livingston Road, Apartment 102, Oxon Hill, Maryland. Commander Jennett testified that he and his wife left their apartment on 9 February 1967 and returned about 5 :30 P.M. on 14 February. When they left the apartment the door was locked and “it had a chain on it on the inside.” When they returned and unlocked the door, he observed that the chain “was cut in the middle. It was attached to the door on one side and the door frame on the other.” The door had a lock in the handle and there was a separate lock on the chain. He went in the bedroom and saw that his jewelry box had the lid open. Two pistols were missing from drawers in a night stand and a portable television set was missing. He called the police. He subsequently ascertained that goods of the total value of over $450 had been taken. Among the articles taken were a cap and ball pistol, serial No. 123258, valued at $100-$125, a Walther pistol, model 5, .25 caliber, serial No. 620234, valued at $56, a clip for the Walther and a man’s topaz ring, valued at $25. At the trial these articles were identified by Jennett as belonging to him. The two pistols and the clip were found in the appellant’s car when it was searched and admitted in evidence over objection. A pair of bolt cutters were also found in the car. A special agent of the F. B. I., qualified as an expert in tool mark identification, testified that it was his opinion, based on examination with a comparison microscope, that the chain on Jennett’s door had been cut with the bolt cutters found in the car. The cutters were admitted in evidence over obj ection.

The appellant’s contention that the lower court erred in admitting the pistols, clip and cutters in evidence is based on his allegation that the warrantless search by which they were seized was unreasonable as not incident to a legal arrest. We have •found, even assuming that the appellant was first illegally arrested, that his subsequent arrest was legal and that the search of the car, made after the legal arrest, was reasonable as incident thereto. Therefore the challenged articles were properly admissible, Hewitt v. State, supra, page 114-115, and the contention fails.

Thomas B. Bever, who was with the appellant during the events at 9 Deer Park Drive on 15 February and arrested with the appellant, was taken to the police station. The topaz ring identified by Jennett as taken from his apartment was found on Bever’s person. It was admitted in evidence over objection. 'The appellant claims error, alleging that the ring was not in the possession of the appellant and that it was not shown that the appellant took it or ever had custody of it. He cites Matthews v. State, 237 Md. 384. But the finding in Matthews was that “[gjuilt inferred only from the fact of unexplained possession of recently stolen goods * * * ordinarily cannot be imputed to a companion of the possessor without other supporting evidence; even though both may be observed committing a similar crime at a different time or place.” (emphasis added) The Court held that motions for judgment of acquittal on the grounds that there was no legally sufficient evidence to sustain the convictions should have been granted. Unlike Matthews, the question here is not whether the fact alone of the possession of the ring by Bever would be sufficient to sustain a conviction of the appellant, but whether the ring was properly admissible against the appellant. The general rule is that the trial court is vested with sound discretion relating to the reception or rejection of evidence. Koprivich v. State, 1 Md. App. 147. And only a probability that the fruits of a crime are connected with an accused is required to be shown in order to render them admissible in evidence. Broadway v. State, 3 Md. App. 164; St. Clair v. State, supra. The appellant and Bever were together in a car containing both other fruits of the crime charged and an instrument of that crime and we cannot say that the stolen ring was not relevant evidence. See Wharton, Criminal Evidence, 12th Ed., Vol. II, p. 204. The fact that it was found in the possession of the companion of the appellant goes to its weight and not to its admissibility. We find no abuse of discretion by the trial court in admitting the ring in evidence and no error in regard thereto requiring reversal of the judgments.

Having found that there was a legal arrest and a lawful search and that the challenged evidence was properly admissible, there was no error in the rulings of the lower court denying the motions to suppress and exclude the evidence and overruling the objections to the evidence. As the further contention that the court erred in denying the motions for judgment of acquittal is predicated on error in denying the motions to suppress, the contention fails.

THU INSTRUCTIONS TO THE JURY

The instructions to the jury included the following:

“With respect to the line of testimony, which you will recall for yourselves, which shows that items which were in the Jennett dwelling later showed up in a car which this defendant was operating and apparently, to all intents and purposes, in control of, if you find this set of facts occurred you may then from those facts consider whether or not you will draw the presumption that this defendant was, in fact, the person who broke and entered and stole this property.
The law, you are advised, is that you may infer from the fact that the Defendant was in possession or control of recently stolen property, you may infer that he was the thief or one of the thieves. This applies to the property which was found in the station wagon under his control as well as to the property that was found on his companion who was seated next to him in the station wagon. Whether you draw this inference or not is your decision to make. The Court advises you that in its opinion the law permits you to draw this inference from the possession or immediate proximity of the defendant to this property which was recently stolen.”

Objection was made to that part of instruction pertaining to the ring, defense counsel urging that the court should instruct that the ring could raise an inference of Bever’s guilt but not the guilt of the appellant. As there was other supporting evidence in the instant case — the unexplained possession by the appellant of other recently stolen goods, the pistols and clip, and an instrument of the crime, the bolt cutters — the ring was clearly within the exception stated in Matthews v. State, supra. We think the challenged instruction was proper.

In his brief the appellant urges that the use of the word “presumption” rather than “inference” by the lower court in connection with the possession of the recently stolen goods was improper. But the objection made by defense counsel at the trial was not to this point. He said:

“In addition, counsel would also need an exception to the Court’s advisory instruction on the possession of recently stolen property. In fairness to the Court I think the Court put everything in the affirmative but neglected to give the alternative, which would be the negative. The Court indicated that an inference may be drawn, and emphasized that inference, but did not emphasize, although it did mention, I believe, that it was not necessary that the inference be followed. But I think in giving this type of instruction the Court should with equal vigor indicate that there is one avenue open to the jury to accept, and by the same alternative there is another equal avenue where they may reject this inference depending upon the facts of the case.”

As the particular portion of the instructions now challenged was not “distinctly objected to” below on the grounds now urged, the alleged error of which the appellant complains may not be assigned as a right of error. Md. Rules, 756f and g. Nor do we find plain error material to the rights of the accused. Although the lower court used the word “presumption” once, it used “infer” or “inference” four times immediately thereafter. We note that in his objection counsel considered the instruction as permitting an “inference” to be drawn and so referred to the instructions four times.

Judgments affirmed; costs ta be paid by the appellant.

      . At the trial below the appellant raised the question in argument on the motions for judgment of acquittal. Defenses and objections based on defects in the indictment, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion before trial and failure to do so shall constitute a waiver. However, lack of jurisdiction or the failure of the indictment to charge an offense shall be noticed by the lower court at anytime during the proceedings. Md. Rules, 735b. Also it is at least open to question whether a court exercising criminal jurisdiction has power to make a finding of guilt or to impose a sentence under an indictment which charges no offense. See Putnam v. State, 234 Md. 537, note 1 at 540-541. We shall consider the question as properly before us.
      The question whether, by the failure to charge the breaking was in the daytime, there was omitted in the indictment an essential element of the offense intended to be charged, thus rendering the indictment defective, was before the Court of Appeals in Kares v. State, 215 Md. 396, but not reached as not tried and decided below. The question was noted by this Court in Reagan v. State, 2 Md. App. 262, note 4, 269, but, as it was not raised, it was not decided.

      . Prior to the amendment of 1965 the offense was included in § 32 and was a misdemeanor.

      . For a discussion of what is daytime and what is nighttime see Wiggins v. State, 4 Md. App. 95, footnote 9.

      . We note that in Kares v. State, 215 Md. 396, although the question was not reached, the Court said, page 397, “The appellant concedes that according to ‘the weight of authority * * * an indictment for burglary in the daytime is good without expressly alleging that it was in the daytime’ ”.

      . A charge that the accused “feloniously committed burglary” as authorized by Code, Art. 27, § 31, is sufficient because it incorporates the definition of both common law burglary and statutory burglary, each of which includes a breaking and entering of a dwelling house in the nighttime.

      . Bever was also charged in the indictment under which the appellant was convicted.


author: Thompson, J.,

text:
    CLAUDE GRIMES v. STATE OF MARYLAND
    [No. 321,
    September Term, 1967.]

      Decided July 25, 1968.

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

      Jerome Piven for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. JFJoylan, Jr., State’s Attorney for Baltimore City, and Joseph R. Raymond, Assistant State’s Attorney for Baltimore City, ■on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Claude Grimes, the appellant, was convicted of grand larceny by the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury. He was sentenced to a term of ten years. On appeal he complains (1) that his conviction was based solely on the uncorroborated testimony of an accomplice; (2) that he should not have been convicted of larceny based upon the recent possession of stolen goods when he was, at the same trial, acquitted of the charge of receiving the goods; (3) that since there was a choice the trial judge should have convicted him of the lesser crime of receiving rather than the greater crime of larceny; and (4) that possession of recently stolen goods is not sufficient to support a conviction for larceny.

Herbert Henderson, an officer of M. Kovens Company, a Maryland Corporation, testified that on December 1, 1966, at about 6:30 P.M. he learned that one of the company’s vans was missing, containing furniture valued at One Thousand Three Hundred and Seventy-Four Dollars ($1,374); and that all but five of the missing items were recovered at 2016 N. Payson Street, the home of one Jesse L. Wise. Henderson was prompted to go there by a telephone call received at about 9:00 A.M. the next morning. In that call he was informed by a man, who gave the name of Philip Dorsey, but who is otherwise unknown, that the “Kovens stuff” was at that address and that he should ask for “Buck”. He went there with two police «officers, arriving about 10:30 A.M. They were freely admitted by Wise (“Buck”) who showed them the merchandise in the basement and on the second floor. Some of the merchandise was still in brown packing.

Wise told Henderson that Claude Grimes, the appellant, brought the furniture there and asked if he could store it in his house.

Wise testified that he lived at 2016 N. Payson Street, and on December 1, 1966, just before dark, Grimes came to his home and asked if he could leave some things. Wise replied that he could and resumed playing a card game with his wife and children in the kitchen. He stated he didn’t pay much attention to how much was brought in by Grimes and two other men and didn’t know what was brought into the house.

Grimes denied participation, claiming he didn’t leave his house at all on December 1, 1966. He claimed he had three visitors on that date but none of them testified. He admitted having previously been employed by Kovens and admitted familiarity with the Kovens’ truck operations. The lower court carefully summarized the evidence indicating that he was impressed with Wise and believed his testimony and that he did not believe Grimes’ alibi, and stated further that he thought some of the alibi witnesses had committed perjury.

I Was Wise an Accomplice ?

The test to determine whether or not a witness is an accomplice is whether he himself could have been indicted and convicted for the offense either as a principal or as an accessory before the fact, Watson v. State, 208 Md. 210, 117 A. 2d 549, 2 Wharton, Criminal Evidence § 448 (Anderson’s 12th Ed.). Grimes contends that since the evidence showed that Wise was in possession of the stolen merchandise he could also have been convicted as being the thief. This argument overlooks that portion of the rule which holds that an accused can be convicted only in the absence of a reasonable explanation, Anglin v. State, 1 Md. App. 85, 227 A. 2d 364. In the present case the trial court stated that he believed Wise’s story; therefore we must hold that his explanation was reasonable. Maryland Rule 1086.

II Acquittal of Possessing and Receiving

Grimes next contends that since he was acquitted of possessing and receiving stolen goods he could not, at the same trial, be convicted of larceny based upon the possession of recently stolen goods, alleging that the acquittal of the receiving was res judicata as to the larceny on these facts. This Court and the Court of Appeals have held several times that an accused cannot be convicted of both receiving and larceny in that the thief does not receive and the receiver is not the thief, e.g. see Fletcher v. State, 231 Md. 190, 189 A. 2d 641, Thomas v. State, 2 Md. App. 645, 236 A. 2d 747. Obviously then an acquittal as to one charge would not bar a prosecution as to the second charge. Grimes’ reliance on United States v. Maybury, 274 F. 2d 899 (2nd Cir.) distinguished by the Court of Appeals of Maryland in the case of Johnson v. State, 238 Md. 528, 209 A. 2d 765 is misplaced because the verdicts in the present case were consistent.

Ill The Less Serious Crime

Grimes next contends that since under the evidence he could have been convicted of either larceny or .of receiving stolen goods, that he should have been convicted only of the less serious crime. He relies on Jordan v. State, 219 Md. 36, 148 A. 2d 292 wherein the Court of Appeals approved a conviction for receiving under evidence that could possibly have supported a conviction for larceny. The evidence in that case showed that several persons were involved in the larceny and there were other facts indicating that the accused was as likely to have been the receiver as the thief. Grimes’ argument was made to the Court of Appeals in the subsequent case of Anglin v. State, 244 Md. 652, 224 A. 2d 668. The Court rejected the argument stating there was no evidence that any person other than the accused was involved in the larceny. In Anglin the Court pointed out that in Jordan the defendant’s hands and clothing were clean soon after the stolen car had been dismantled which made the inference that he was the receiver just as reasonable as that he was the thief or “one of the several thieves.” There is no fact in the present case which would point to the fact that Grimes was a receiver rather than one of several thieves. The very short interval between the time of the crime and the time when he was shown to be in possession would tend to indicate that he was not the receiver but one of the thieves. Although the possession of stolen goods to support a conviction for larceny must be exclusive this does not mean that the possession cannot be a joint possession of several persons. See Bury v. State, 2 Md. App. 674, 236 A. 2d 751 and cases therein cited. We cannot say that the trial judge was clearly erroneous in his verdict. Maryland Rule 1086.

IV Evidence

Appellant argues that the evidence was insufficient to support the verdict, (a) He argues first that the court should have accepted his testimony, but we have repeatedly ruled that there is no obligation on the court to believe the testimony of the accused. (b) He argues further that the bare possession of stolen goods is not sufficient to support a conviction for larceny. This argument was answered constitutionally as well as factually by the Court of Appeals in Anglin v. State, supra, citing many prior cases, and has been passed upon by this Court in several recent cases, two of which are Bury v. State, supra, and Anglin v. State, supra.

Judgment affirmed.

      . For examples see: Wilson v. State, 2 Md. App. 210, 233 A. 2d 817, Chittum v. State, 1 Md. App. 205, 228 A. 2d 628.


author: Per Curiam.

text:
    COLUMBUS JOSEPH BROWN v. STATE OF MARYLAND
    [No. 328,
    September Term, 1967.]

      Decided July 25, 1968.

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

      Calvin B. Johnson, with whom was Andrew J. Graham on the brief, for appellant.

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

Columbus Joseph Brown, the appellant, was convicted under two separate indictments for robbery with a deadly weapon, in a trial in the Criminal Court of Baltimore, Judge Thomas J. Kenney presiding without a jury. He was given two concurrent sentences of fifteen years. Brown was also convicted of some collateral charges but there is no complaint as to merger. Although the two cases were tried jointly, they were entirely separate crimes and will be so treated in this opinion.

The testimony with regard to the first Indictment, No. 1963, can be summarized as follows: William J. Watson, while driving a cab in the City of Baltimore, picked up two men and two women at or about 1:00 A.M. on July 18, 1966. When he arrived at their destination, the male sitting on the left rear placed a hard piece of metal on the back of his head and told him he was being held up. The second male, who was sitting on the front seat with the driver, took his money, as directed by the first male. After they ran away, the driver jumped out of his cab, sought assistance from another cabdriver and soon thereafter, discovered a police car cruising in the area. He stopped the police car and as he entered it, he saw a woman who resembled one of his passengers, running across a park, near the scene of the hold up. The police gave chase and eventually caught her. She was Rebecca Johnson, one of the State’s witnesses. The driver was unable to identify the two males.

Rebecca Johnson and Juanita Husband, both testified that Brown came to their house with one James L. Sadler, and requested that they accompany them to Brown’s house for the evening to listen to records. All four people were in their twenties and were previously acquainted. They agreed to go and Brown called a cab. Before they arrived at their destination, Brown requested the driver to stop because he did not have enough money to proceed farther, and informed them they would have to walk. As they were getting out of the cab, Brown pulled a pistol and held up the driver. Both women denied taking any part in the hold up and both denied having knowledge of the crime prior to its commission. Neither woman was charged with the offense.

The accomplice, James L. Sadler, implicated Brown as a co-perpetrator of this offense. He also stated that the women knew of the crime before it was committed. Brown claimed to have been in Chicago at the time of the robbery.

On appeal Brown contends the evidence was insufficient to support his conviction for the reason that all three persons who identified him as one of the criminals were his accomplices; and that there was no corroboration of their testimony. We do not agree. The test as to whether or not a person is an accomplice depends upon whether or not he can be tried and convicted for the same offense. 2 Wharton, Criminal Evidence, § 448 (Anderson’s 12th Ed.). The trial judge, in his opinion, stated that he accepted the testimony of the two women as accurate and we cannot say that his finding was clearly erroneous, Maryland Rule 1086. If that testimony be accepted there is no question but that the two women were not accomplices in the crime. In Watson v. State, 208 Md. 210, 117 A. 2d 549, 553 the Court of Appeals said:

“Polly admitted that she made no objection when appellant placed the baby in the tub of water, and that she did not notify the police. But the fact that a person witnesses a crime and makes no objection to its commission and does not notify the police does not make him an accomplice. To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime.”

An accessory after the fact is not an accomplice, Watson v. State, supra.

The testimony with respect to Indictment No. 1964 can be summarized as follows: On July 16, 1966, a cabdriver, Johnathan Hilton, was robbed and shot through the neck in the area of Amity and Schroeder Streets in the City of Baltimore. Several months after the crime the police department showed him several pictures. He immediately identified Brown as well as his accomplice as the two who robbed him. At the trial he identified Brown as one of his assailants.

On appeal Brown contends there was insufficient evidence to convict him. He concedes, as he must, the testimony of the victim is ordinarily sufficient to support a conviction, but alleges that the identification was tainted because a police officer stated, after the victim picked Brown and his accomplice from the group of pictures, that the police also thought that those iden-

tified were the persons involved, citing United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. While we have held that police officers can taint an identification by the method in which pictures are shown to the victim, that principle has no application to the present case because the witness unhesitatingly and immediately picked the suspects from the group of pictures which he was shown without any hint or indication from the police officers that they were the two persons involved in the crime. See Rath v. State, 3 Md. App. 721, 240 A. 2d 777. See also Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). While we think it would have been better practice for the police officers not to have concurred in the identification, on these facts, we cannot hold that the victim’s testimony was so tainted as not to be admissible in the trial or insufficient to support the conviction.

Brown next contends there was an error in permitting Police Officer Barry Fee to testify. Prior to trial, under Maryland Rule 728, Brown had requested the names of the witnesses whom the state intended to call to prove the case in chief. Through typographical error the officer’s name was stated as. Officer Barry Lee instead of Barry Fee. Although private investigators had been employed to make investigation of the case, no inquiry was made of the State’s Attorney’s office to check the name of the officer who was listed as a witness. The indictment shows that the officer’s name was correctly listed thereon in compliance with Maryland Rule 717. We do not think the trial judge’s action was reversible error. Compare Cropper v. State, 233 Md. 384, 197 A. 2d 112.

Judgments affirmed.

      . Hilton testified that they showed him six or more pictures. A police officer testified that he was shown approximately twelve pictures.


text:
    ROBERT AUGUSTUS JONES v. STATE OF MARYLAND
    [No. 333,
    September Term, 1967.]

      Decided July 25, 1968.

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

      Tucker R. Hearing for appellant.

      Alfred J. O’Perrall, III, Assistant Attorney General, with whom were Brands B. Bur di, Attorney General, and Joseph D. Weiner, State’s Attorney for St. Mary’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Robert Augustus Jones, the appellant, was convicted of assault and battery in the Circuit Court for St. Mary’s County, Judge Perry G. Bowen, Jr. presiding with a jury. The court granted a motion to acquit as to a charge of assault with intent to murder, and the jury acquitted as to a charge of larceny. The court imposed an indeterminate sentence of four to six years.

On appeal Jones alleges that the trial .court erred in denying his motion for judgment of acquittal as to assault and battery, in permitting Trooper Moore to be called as a witness in violation of an exclusion of witnesses order, and in refusing to strike the jury panel or to remove the case because the jury had been prejudiced.

Jones, while operating his 1956 Chevrolet, was stopped by Trooper Hugh T. Moore of the Maryland State Police at about 11:40 P.M. on May 20, 1967. In the words of the trooper the following occurred:

“A. I stopped the ’56 Chevrolet in the southbound lane of State Route 5, approximately a half mile north of the Half-Way-House on the dual highway. I never approached the car. Mr. Jones got out of his car as I got out of mine and approached me. I asked for his driver’s license and registration card and told him that he had been stopped for exceeding 55 miles per hour. I started — Mr. Jones handed me his driver’s license and registration card, and I commenced to issue a warning for the offense of exceeding 55 miles per hour. While I was writing the warning, Mr. Jones claimed that he had done nothing. Then a white ’55 or ’56 Mercury stopped behind my police car. My police car was behind Mr. Jones’ vehicle. I said — I excused myself from Mr. Jones and then approached the operator of the Mercury, and asked if there was anything I could do to help him or offer assistance. And he told me he was waiting for his friend whom I assumed was Mr. Jones. I went back to the right front portion of my police car and continued to write the warning.
This time the man in the Mercury got out and approached. As he approached, Mr. Jones became quite loud, started waiving his arms and shouting at the top of his voice he had done nothing. I asked him to keep quiet and to cease waiving his arms and acting in this manner.
“Q. Officer, you said he was shouting on the top of his voice. Was it loud enough to be heard by the people passing by ?
“A. Yes, sir; it was.
“Q. Now, what was the [sic] saying when he was — -
“A. At this time, he was continuing to state that he had done nothing wrong. After his friend approached, he got quite loud and appeared to me to be almost violent in his manner—
“MR. DEARING: I object to what he appeared. “THE COURT: Overruled.
“BY MR. WEINER:
“Q. Go ahead.
“A. At any rate, he was again asked to stop shouting and to calm down. At this time, he was right next to my right side and yelling in my ear at such intensity that I could not understand what he was saying. His arms were waiving in the air, and I cannot testify as to the exact words he said as I did not understand him due to the loudness of his voice and the booming effect.
“I then placed my hand on Mr. Jones’ shoulder and placed him under arrest for disorderly conduct. This time, Mr. Jones pulled away from me and said I needed a warrant to arrest him. I told Mr. Jones a warrant would be issued when we arrived in Leonard-town, and again placed my hand on his shoulder and attempted to place him against the police car for a quick search and placing him in the vehicle and transporting him to Leonardtown. At this time, as I was attempting to pull him toward me to pull him around, his shirt ripped. This action threw me backwards a little bit. Mr. Jones then attacked me. He hit me in the stomach with his shoulder and drove me the length of my police car which is approximately 17 feet. As we were falling to the ground I hit Mr. Jones with my 5-cell flashlight. I was on the bottom and Mr. Jones was on top when we landed on the ground.
“After a struggle for a very short period of time, Mr. Jones managed to remove my revolver from the holster — ”
íjí * *
“Q. What happened after you and Mr. Jones went down on the ground ?
“A. As I stated, after a struggle Mr. Jones managed to remove my weapon from the holster. This was the first time that any movement toward the weapon was made was when Mr. Jones made it. He then placed the weapon under my chin and cocked it. After a struggle, I managed to free the weapon by grabbing the barrel and throwing it clear of both Mr. Jones and myself. This time, Mr. Jones grabbed my flashlight and struck me across the forehead.
“Q. Is this the same flashlight that you referred to?
“A. Yes, sir. It apparently fell to the ground near where we were struggling. When I rose from the ground, Mr. Jones was standing I would imagine approximate distance between me and the State Attorney. The weapon pointed at me and cocked, I heard the click as it was cocked, and I saw it with the hammer back. At this time, he was standing between my car and the ’56 Mercury and the lights on the Mercury were on and he was in plain sight. At this time, he took the weapon and started toward me and then swung it with his right hand and struck me across the left side of the head, left temple. The gun went off at this time, hie then struck me again with it. He started to leave, grabbed my flashlight and threw it at me. Stating as he was leaving, waiving the gun in the air T think I’ll keep this for a while,’ and then proceeded south in State Route 5 in his car.”

As a result of the affray the trooper received a mild concussion, a wound in the forehead which required six stitches to close and numerous scrapes over his body.

Jones testified that as the trooper was writing the warning ticket he said he mumbled to himself “A man can’t ride down the road in peace nowadays”, and the trooper grabbed him and ripped his sleeve off his shirt, told him to shut up, and when he inquired what he had done wrong the trooper tore his shirt and placed him under arrest for disturbing the peace and hit him in the mouth with the flashlight and that he took the gun from the trooper only after the trooper had drawn it. His story was supported by his friend who was riding in the second car.

Jones contends that the evidence was insufficient to support his conviction because his words of protest against being stopped by the trooper were not sufficient to constitute disorderly conduct and that his arrest was illegal. If we accept the argument that the arrest was illegal the appellant is not helped. The applicable rule was stated in Sugarman v. State, 173 Md. 52, 57, 195 A. 2d 324 as follows:

“The authorities seem in accord that one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary.”

The trooper’s testimony, which obviously was accepted by the jury as factual, shows that after the trooper was disarmed and Jones had ample opportunity to escape, he returned and struck the officer twice with the pistol. Even where the use of force is authorized the force employed may not be more than is reasonably demanded by the situation, Tipton v. State, 1 Md. App. 556, 232 A. 2d 289. The evidence was clearly sufficient to support the conviction.

Jones next contends that reversible error was committed when Trooper Moore was recalled to the stand to identify his revolver which Jones had taken from him. Jones’ position is that Trooper Taylor was permitted to testify in violation of Maryland Rule 753. Under the rule and under Bulluck v. State, 219 Md. 67, 148 A. 2d 433 when the exclusion of witnesses is requested, it is mandatory that the trial court comply with the request. In Swift v. State, 224 Md. 300, 167 A. 2d 762 the Court found harmless error on that factual situation, and declined to reverse on that ground. In the present appeal Trooper Moore was permitted to stay in the courtroom after he had completed his original testimony. It later appeared that it was necessary for him to identify his revolver before it could be offered into evidence. It seems most unlikely that this testimony was affected in any way by the testimony of the other witnesses which he heard. We, therefore, decline to reverse; the error was harmless. In fact, the officer had already identified the weapon as his when previously on the witness stand •and his recall was unnecessary.

Jones made a motion prior to trial that the jury panel be stricken and a subsequent motion that his case be removed to another jurisdiction, both of which were based on the same factual situation. The record shows that during the night prior to the trial someone painted a black swastika on a pillar of the courthouse, had written on the courthouse steps “Shit on you, Nigger”. Based on these facts Jones testified that he could not get a fair trial and argued the effect of these actions was to charge the atmosphere with racially impacted prejudices and •create an atmosphere of hostility thereby denying him a fair trial. The court examined the jurors on voir dire. Each juror admitted that he saw the markings but each juror also stated that he would not be influenced thereby in the disposition of the case. The sheriff testified the markings had been placed there during the night and that it was his opinion that the vandalism had no connection with the case under trial, since there had been no publicity that the case was to be tried on that particular day and he had reason to believe the markings related to another proceeding. Both motions are matters of discretion in the trial judge and the burden is upon the moving party to show facts which will give rise to the actual prejudice. Bristow v. State, 242 Md. 283, 219 A. 2d 33, Borman v. State, 1 Md. App. 276, 229 A. 2d 440, Jones v. State, 2 Md. App. 429, 234 A. 2d 900. The trial court was satisfied that the jurors could render a fair verdict and we cannot say, on this record, that he abused his discretion, Dubs v. State, 2 Md. App. 524, 235 A. 2d 764, Benton v. State, 1 Md. App. 647, 232 A. 2d 541. Compare Jones v. State, 185 Md. 481, 45 A. 2d 350.

Judgment affirmed; appellant to pay costs.

        . Cert. granted by the Supreme Court of the United States on other grounds, 392 U. S. 925, 88 Sup. Ct. 2297, 20 L. Ed. 2d 1384 (1968).


author: Murphy, C. J.,

text:
    GLORIA BROWN v. STATE OF MARYLAND
    [No. 351,
    September Term, 1967.]

      Decided July 25, 1968.

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

      G. Denmead LeViness, with whom was Nelson R. Kandel on the brief, for appellant.

      Alfred J. O’Perrall, III, Assistant Attorney General, with whom were Pramcis B. Burch, Attorney General, and Charles

      B. Moylan, Jr., State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellant was found guilty of assault with intent to murder in the Criminal Court of Baltimore on February 16, 1965 and was sentenced to five years imprisonment. The sentence was, however, suspended and she was placed on probation for a period of five years.

On May 1, 1967, in the same court, the appellant was convicted of violating the narcotic laws and was sentenced to two years imprisonment. The sentence was suspended and she was placed on probation until February 15, 1970.

On October 19, 1967, the appellant pleaded guilty to a charge of shoplifting before Judge George Taylor in the People’s Court of Anne Arundel County and was sentenced to eighteen months imprisonment.

Thereafter appellant was charged with two counts of violation of probation granted by the Criminal Court of Baltimore. By agreement, both cases were heard on December 6, 1967 by Judge Charles D. Harris, at which time the appellant’s probation officer testified that because of the shoplifting conviction in Anne Arundel County, and for no other reason, a warrant for appellant was obtained for violation of probation; and that had it not been for this conviction, appellant would have been continued on probation. Appellant entered a timely objection and moved to strike all testimony relating to the shoplifting conviction on the ground that as she was an indigent accused not represented by counsel at that trial, such conviction could not constitutionally provide the basis for revocation of her probation. The court overruled appellant’s objection and motion, stating that as it did not have before it the records of the shoplifting conviction in Anne Arundel County, it did not know whether appellant was adequately warned of or waived her right to counsel.

Appellant then testified that after she was arrested on the shoplifting charge, she endeavored unsuccessfully through her family to obtain the services of a lawyer; that she asked the “man who arrested her did I need a lawyer” and was told by him that she did not; that she went to trial without an attorney to represent her; that the judge did not tell her the meaning or consequences of a guilty plea or the maximum sentence for the offense; and that she pleaded guilty “because I believed in a way I was guilty and in a way I wasn’t guilty.” Appellant admitted that Judge Taylor told her that he could appoint a lawyer for her, but she testified that in response to this statement of the judge, that “I didn’t tell him nothing.”

After appellant testified, her counsel suggested that a continuance of the case be granted in order to clarify the issue of whether counsel had been afforded to the appellant since the only evidence in the case was appellant’s testimony that counsel had not been afforded to her. The court declined to grant a continuance, stating:

“* * * I am going to act now, but without prejudice to your right to seek to reopen the proceedings if you can show, through Judge Taylor or some other reliable witness, that she was not fully apprised of her rights at that trial. I would guess or assume it is not a court of record, and it might be somewhat difficult to show, but one thing you can do would be to get a copy of the docket entries there, which usually show whether there is a warning as to the rights. That record might very well show that after being informed of her right, she waived it. If it doesn’t show that, why the action I take will be without prejudice to your right to seek to reopen and to have the action I am going to take stricken.”

Following these remarks by the court, appellant again requested a continuance “to allow me to issue a subpoena for the records and Judge Taylor to clarify this issue because I think it is a vital constitutional question.” The court again declined to grant a continuance, and after stating that it did not believe appellant’s testimony that she had not been advised of her rights, revoked her probation in both cases, concluding that:

“* * * this action will be without prejudice to your right to bring in a certified copy of the docket records of her conviction before Judge Taylor in Anne Arundel County on October 19th, 1967, or any other evidence you may wish to bring in. If it can be shown she was not advised of her rights, then you may move to have the two actions I have taken today stricken.”

On these facts, appellant contends that the lower court abused its discretion in revoking her probation because the questions of whether her guilty plea to the shoplifting charge was intelligently made, and whether she was denied her constitutional right to counsel were never resolved.

As we recently observed in Wayne v. State, 4 Md. App. 424, an indigent accused in a serious state criminal prosecution, as here, has an absolute constitutional right to have counsel appointed for his defense. That such an accused has a right to proceed without counsel following a knowing and intelligent waiver of his right to counsel is likewise well settled. See Cummings v. Warden, 243 Md. 702; Ware v. State, 235 Md. 131. The classic definition of waiver of a federal constitutional right is that contained in Johnson v. Zerbst, 304 U. S. 458, i.e., “an intentional relinquishment or abandonment of a known right or privilege.” In Manning v. State, 237 Md. 349, the Maryland Court of Appeals gave explicit recognition to the holding of the Supreme Court in Carnley v. Cochran, 369 U. S. 506, 516, viz.:

“Presuming waiver [of the right to counsel] from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and under standingly rejected the offer. Anything less is not waiver.”

Where a constitutionally effective waiver of counsel has been made, a plea of guilty may be entered by an unrepresented accused where the circumstances show a voluntary desire on his part to so plead, with an intelligent understanding of the nature of the offense to which he is pleading guilty and the possible consequences of such a plea; and the acceptance of a guilty plea entered under such circumstances is, of course, entirely proper. James v. State, 242 Md. 424; Gleaton v. State, 235 Md. 271; Blake v. State, 2 Md. App. 492.

In Burgett v. Texas, 389 U. S. 109, 19 L. Ed. 2d 319, decided November 13, 1967, the question before the Supreme Court was whether, for purposes of applying an enhanced punishment under a Texas recidivist statute, the defendant’s prior felony conviction could be constitutionally considered where it was not shown that he had been afforded the right to or waived counsel. After noting that the record of that prior conviction did not disclose that the right to counsel had been waived, and that it appeared on the face of such record that the defendant had not been represented by counsel, the court held that such conviction was void and could not be utilized to enhance defendant’s punishment. The court held, under such circumstances, that there was a presumption that the defendant had been denied his right to counsel, that presuming waiver of counsel from a silent record is impermissible, and that to permit a conviction obtained in violation of Gideon v. Wainwright, 372 U. S. 335, to be used against a person either to support guilt or enhance punishment for another offense would be to erode the principle of that case.

In light of these principles, and in view of the failure of the record before us, or the evidence before the trial court, to disclose what occurred at appellant’s trial on the shoplifting charge, we think it desirable to remand the case to the lower court under Maryland Rule 1071 without affirming, reversing or modifying the judgment from which the appeal was taken, so that additional evidence may be secured to permit a determination of the constitutional questions involved.

It is well settled that the demands of due process at a probation revocation hearing are generally satisfied if the probationer is extended a reasonable opportunity to defend himself against a charge that he has violated the conditions of his probation. See Finnegan v. State, 4 Md. App. 396. We think the principle of Burgett is such that if appellant’s shoplifting conviction were unconstitutionally obtained, and the sole reason for the revocation of her probation was the fact of that conviction, then the conviction cannot of itself provide a proper basis upon which to revoke the previous grant of probation. Without question, appellant should have been prepared at the hearing before Judge Harris to prove by the most competent available evidence that she was not afforded counsel or, if counsel were offered to her, that she did not intelligently and knowingly waive her right thereto when she pleaded guilty. On the remand, appellant will be afforded the opportunity to produce that evidence in support of her constitutional argument which she desired to present had her request for a continuance been granted by the lower court. We do not believe, however, that the naked docket entries of the People’s Court proceeding, whatever they disclose, will be sufficient proof standing alone that appellant’s constitutional right to counsel was waived or not waived within the meaning of Johnson v. Zerbst, supra, and Carnley v. Cochran, supra, where other evidence is available upon which the issue may be more definitely adjudicated. See Montgomery v. Warden, 1 Md. App. 30, at pages 37-38.

Case remanded for further proceedings in accordance with this opinion.


text:
    DAVID JENKINS v. WARDEN, MARYLAND PENITENTIARY
    [No. 152,
    September Term, 1967.]

      Decided July 26, 1968.

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

delivered the opinion of the Court.

This is an application for leave to appeal from a denial by Judge Shirley B. Jones, sitting in the Criminal Court of Baltimore, of relief sought by the applicant in his petition under the Uniform Post Conviction Procedure Act. On 22 February 1964 the applicant was found guilty of murder in the first degree and robbery with a deadly weapon. On 6 April 1964 he was sentenced to death on the murder conviction and to twenty years on the robbery conviction, to run concurrently with the death sentence. He appealed the judgments but the case was eventually remanded under the rulings of Schowgurow v. State, 240 Md. 121 and Smith v. State, 240 Md. 464. He elected to void the indictments. He was reindicted and a new trial was held before Judge J. Harold Grady under a charge of murder. On 31 March 1967 Judge Grady, sitting without a jury, found the applicant guilty of murder in the second degree and imposed the maximum sentence of eighteen years, dating from 31 March 1967.

In his petition for Post Conviction Relief, the applicant’s sole allegation was that he should have been given credit for all time served in jail from the date of his initial arrest, 4 February-1963, to the date on which the sentence which he is presently serving was imposed, 31 March 1967, and that failure to give such credit resulted in a sentence exceeding the statutory limitation of eighteen years for second degree murder. He was denied relief on 5 December 1967 by Judge Jones on the ground that there was no requirement that the applicant be given credit for any time served prior to his second trial on 31 March 1967, and that it was discretionary with the trial judge as to whether or not he would give credit for jail time served.

In Reeves v. State, 3 Md. App. 195, Reeves had been convicted of rape and sentenced to life imprisonment. The conviction was vitiated as a result of Habeas Corpus proceedings in the United States Fourth Circuit Court of Appeals, Reeves v. Warden, 346 F. 2d 915. He was retried and the maximum sentence of 20 years allowed by statute under the jury’s verdict was imposed, but with no credit given for the prison time served under the first sentence. We held that Reeves was entitled to credit on his second sentence for the time served since the imposition of his original sentence, as otherwise the second sentence would exceed the maximum permitted by law. We felt that to say that the second sentence was proper because it, per se, did not exceed the maximum, was to take “a myopic view of its results, which we cannot accept if fundamental fairness is to prevail”, p. 204. We think Reeves is controlling when the lower court, on retrial, after sentence was imposed at a first trial “hears the case as if it were being tried for the first time, and considers the entire matters of verdict, judgment and sentence as if there had been no prior trial”, whether because of a defective indictment or because of error in a first trial. Compare Moon v. State, 1 Md. App. 569, 250 Md. 468. So in the instant case, by giving no credit for the time served under the first sentences, the lower court, in effect, imposed a sentence which exceeded the maximum of 18 years permitted. But with regard to the time the applicant spent in jail from the date of his arrest, 4 February 1963, to the date of his first sentence, 6 April 1964, as we stated in Williams v. State, 2 Md. App. 170, 177, we know of no authority requiring a sentencing judge in this State to give credit for time spent in jail pending a trial and prior to sentencing.

We hold that the 18 year sentence imposed must date from 6 April 1964.

Application for leave to appeal granted; case remanded for amendment of sentence in accordance with this opinion.

      . Court of Appeals No. 276, September Term, 1964.

      . Indictment charging the applicant with robbery with a deadly weapon was stetted.

      . Art. 27, § 414, prior to the 1966 amendment, provided that punishment shall be for not less than five nor more than eighteen years. Ch. 339, Acts 1966 designated the sentence for murder in the second degree to be “for not more than 30 years” but § 2 of the Act provided that it shall not apply to convictions for murder committed before 1 June 1966.

      . We note that a portion of the time the applicant spent in jail prior to the sentences first imposed was attributable to his filing motions for a bill of particulars and discovery, to his plea of insanity requiring his examination at Clifton T. Perkins State Hospital, to a motion for change of venue which resulted in the first trial being transferred to Caroline County and to a pre-sentence investigation made after verdict.