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    RILEY BROOKS v. STATE OF MARYLAND
    [No. 191,
    Initial Term, 1967.]

      Decided April 3, 1968.

      The cause was argued before Anderson, Morton, Orti-i, and Thompson, JJ., and Meevin, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.

      Jerome F. Connell, Sr., for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, Jr., State’s Attorney for Anne Arundel County, and Marvin H. Anderson, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On January 17, 1966, the appellant, Riley Brooks, was convicted by a jury of murder in the first degree, without capital punishment, in the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding. Appellant was sentenced to life imprisonment.

Appellant raises two contentions on appeal:

1. That the jury by which the appellant was convicted was not drawn or impaneled in accordance with the requirements of due process and equal protection of the law.
2. That the lower court erred in refusing to grant the Defendant’s Motion for a Judgment of Acquittal of murder in the first degree.

The evidence adduced at the trial established that one Idus Wimberly was shot several times by the appellant, Riley Brooks, and died as a direct result thereof. There were two divergent explanations of the occurrence. The deceased’s widow, Myrtle Wimberly, testified that after an altercation, arising out of the deceased’s remarks to the appellant, reminding appellant that he and Coretha Thomas were not married, and the deceased’s ordering of the appellant from the deceased’s house, while threatening him with a raised chair, the appellant drew a gun and shot the deceased several times. Appellant’s version was that after Mrs. Wimberly had left the room, the deceased ordered him from the house and produced a pearl handled gun which appellant successfully wrested from him only to be confronted by another gun which the deceased then withdrew from under his mattress, which allegedly was the same gun used earlier in the day by the deceased to shoot at one Dreece Green, thus compelling the appellant to begin firing at the deceased in self-defense. Appellant further testified that as he fled from the deceased’s residence shots were fired at him. Appellant testified that he disposed of his weapon somewhere along Fort Meade Road.

The record before us indicates that on July 5, 1965, a picnic was held at the home of Idus and Myrtle Wimberly, on Elk-ridge Landing Road, Anne Arundel County, Maryland. Riley Brooks, Coretha Annette Thomas, Mrs. Wimberly’s niece, and her six children arrived at the Wimberly residence. Also present were Dreece Roberta Green, William H. Boone, Joe McKen, Beulah McKen, Mr. and Mrs. George M. Davis and their five children. Later, Idus Wimberly, William H. Boone and George M. Davis drove to the Elkridge Liquor Store, where Idus Wimberly purchased two fifths of whiskey and they returned to the picnic. After everyone ate, Idus Wimberly and some of the children were outside, when the children began teasing him, calling him “Mr. Wimpy,” causing him to become very upset. This incident precipitated an altercation between Idus Wimberly and George Davis. Subsequent thereto, Idus Wimberly appeared to have calmed down and entered the house-expressing his intention to lie down. Shortly thereafter, he emerged firing a gun and ordered everyone off his property. He then sought out George Davis and later fired at Dreece Green.

Following the shooting, everyone with the exception of JoeMcKen, Beulah McKen and Mr. and Mrs. Wimberly went to the home of Riley Brooks, the appellant. Appellant then telephoned the Wimberly residence, talked with Mrs. Wimberly and then returned to the Wimberly place. He entered into a conversation with the Wimberlys culminating in an altercation and the subsequent shooting and death of Idus Wimberly.

I

Appellant’s contention that there was an extreme variation between the number of Negro and white jurors, thus raising the presumption of discrimination against the Negro race in the selection of the jury and the consequential violation of the constitutional rights of the appellant, is predicated upon the premise that once this issue is raised, a prima facie case is established and the State assumes the burden of establishing that the selection system used was fairly calculated to produce a true cross section of the community.

In support of this contention, appellant relies entirely upon the cases of Clark v. Allgood, 258 F. Supp. 773 (1966) and Whites v. Georgia, 385 U. S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967).

In Clark v. Allgood, supra, at page 776, the District Court, relying upon the Fifth Circuit Court of Appeals’ decision in Brooks v. Beto, 366 F. 2d 1 (CA 5, 1966), stated:

“When the statistics show what appears to be a uniform, systematic inclusion of a token number or of a uniform number of Negroes on a jury panel, a prima facie case of discrimination is established. It is then up to the State to rebut the presumption by showing that the system used was fairly calculated to produce a cross section of the community, and that the lack of a cross section on a particular list or panel just happened to be the fortuitous result of chance.”

However, the statistics upon which that Court based its findings in Clark consisted of evidence that from 1951 until 1961, a time span encompassing the ten years prior to the petitioner’s conviction, twenty consecutive grand juries had been impaneled and of those, nineteen of them, as finally impaneled, contained the name of one Negro, and one contained the names of two Negroes. It was also noted that the happenstance of mere chance, producing that outcome if the above had been drawn by lot, “would be less than one in ten thousand.” The evidence presented clearly showed that “the commissioners intentionally placed a limited number of Negroes’ names thereon in order that the Negroes would not be entirely excluded from the venire list.”

In Whitus v. Georgia, supra, the Supreme Court found sufficient proof that Georgia had employed the same procedures which had concededly resulted in discrimination in the first trial of the petitioners and thus “constituted a prima facie case of purposeful discrimination” in the selection of the grand and petit juries involved in the second trial of the petitioners.

The Supreme Court noted at page 550 that:

“The burden is, of course, on the petitioners to prove the existence of purposeful discrimination, Tarrance v. Florida, 188 U. S. 519 (1903). However, once a prima facie case is made out the burden shifts to the prosecution.”

The proof relied upon by the Supreme Court in Whitus developed from the following facts at pages 550-551:

“It is undisputed that the 'revised’ jury list was made up from the 1964 tax digest, the old jury list and the personal acquaintance of the commissioners with persons in their respective communities. It is admitted that the old jury list had been condemned as illegal by the Court of Appeals when it reversed petitioners’ first convictions. It is conceded that 27.1% of the taxpayers in the county are Negroes; that the county had a population in 1960 of 10,206 people over the age of 21 years, of whom 4,706 were male, with 2,004, or 42.6% of this latter number being Negroes; that 33 prospective jurors were drawn for grand jury service for the term of court during which petitioners were indicted, three being Negroes, of whom one actually served on the grand jury of 19 persons; that a venire of 90 persons was used for the selection of the petit jury which tried petitioners, of which number at least seven were Negroes; and, that no Negro was accepted on the petit jury.
“Furthermore, it is obvious that the 1964 tax digest was required to be made under the same segregated system as were the previous digests, and suffered the same deficiency. Indeed, the State employed the same procedure which it concedes resulted in discrimination in the petitioners’ first trial.”

The constitutional principle enunciated in Whitus had a long somewhat staccato evolution but is possessed of deep roots in our juridical heritage. Our careful review of the authorities evidences a clearly delineated tracing of the original pronouncement regarding the intent and ambit of the Fourteenth Amendment in the historic Slaughter-House Cases to the current body of law surrounding the instant issue. This distinct, tenacious fibre has interwoven itself into each subsequent opinion until through the careful process of stare decisis one is currently appraised of the ruling in Whitus and the subsequent decisions hereinafter noted.

In tracing this evolutionary process, in an attempt to establish a historical precedent interpretable as a guide to the current posture of the law governing the issue of jury discrimination and the prerequisite prima facie evidence of same, a careful review of the origins of this doctrine produced the following cases of note.

In The Slaughter-House Cases, 83 U. S. (16 Wall.) 36, 21 L. Ed. 394 (1872), the Supreme Court considered the proposition : “Can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State?” Therein, the Court was initially defining the true spirit and meaning of the Thirteenth, Fourteenth and Fifteenth Amendments of the Constitution of the United States stating at page 67:

“We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members.”

The Court went oil to express its opinion of the spirit and purpose, and to some extent the meaning of the above amendments. It observed that of the first twelve amendments eleven were “practically contemporaneous” with the adoption of the Federal Constitution and the adoption of the twelfth in 1803 made it with the others “historical and of another age.” The Court then noted that the history surrounding the then recently adopted Thirteenth, Fourteenth and Fifteenth Amendments “is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.” There followed an historical analysis of the background to the above amendments, “as that history relates to the general purpose which pervades them all.” The Court’s attention was focused upon the intent and ambit of the Fourteenth Amendment, noting that Dred Scott v. Sandford, 60 U. S. (19 How.) 393, 15 L. Ed. 572 (1856) was effectively overturned by observing that the Fourteenth Amendment’s “main purpose was to establish the citizenship of the negro * * While directing its interest to the “privileges and immunities” section, the Court through its thorough treatment of the entire subject matter permanently etched upon the law that these amendments viewed in their historical context predicated that “* * * no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” (p. 71).

Seven years later, in Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664 (1879), the Court reviewed a statute of West Virginia controlling the selection of jurors, which read:

“All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.” (p. 305).

In finding the statute violative of the Fourteenth Amendment, the Court, drawing upon the Slaughter-House Cases, •stated that the Fourteenth Amendment “was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.” (p. 306) > To fulfill this purpose, the Fourteenth Amendment “is to be construed liberally, to carry out the purposes of its framers.” (p. 307). The ordained purpose is but a declaration “* * * that the law in the States shall be the same for the black as. for the white; that all persons, whether colored or white, shall stand equal before the laws * * While commenting that this, amendment is directed toward the colored race the court noted! the ambit of same is inclusive of whites also observing that “* * * if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment.” (p. 308). The “aim was. against discrimination because of race or color” and “its design was to protect an emancipated race, and to strike down all possible legal discrimination against those who belong to it.” (p. 310).

The Court went on to state at page 310:

“The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.”

Having commented upon the purpose and qualitative importance of a jury and the essentiality of its non repugnance to the principle enunciated in the Fourteenth Amendment, the Court stated at page 308:

“The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Quoting Blackstone, the Court noted this right is the “grand bulwark of his liberties.”

The Court found that the petitioner “was entitled to immunity from discrimination against him in the selection of jurors, ■because of their color * * *” and there were “sufficient facts to exhibit a denial of that immunity, and a denial by the statute daw of the State.” (p. 312).

That same year, in Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667 (1879), the Court, discussing jury selection, stated -at pages 322-23:

“It is a right to which every colored man is entitled, that, in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them because of their color.”

-’However:

“A mixed jury in a particular case is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia, or by any Federal statute. It is not, therefore, guaranteed by the Fourteenth Amendment * *

In Ex Parte Virginia, 100 U. S. 339, 25 L. Ed. 676 (1879), :a judge had been indicted, in his capacity as the legal officer ■charged with selection of jurors, in that in 1878 he “did then ■and there exclude and fail to select as grand and petit jurors certain citizens ’* * *, of African race and black color, said ■citizens possessing all other qualifications prescribed by law, * * * on account of their race, color, and previous condition •of servitude, and for no other reason * * *.” (p. 340). In rejecting the contention that the Fourteenth Amendment is a direct interference by the Federal government with State rights, the Court noted that that amendment was addressed to the ■'.States and stated at page 346-47:

“It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. This is true in the general. But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent.”

Furthermore:

“A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws.”

The Court further elaborated upon its rejection of petitioner’s contention that the Fourteenth Amendment unconstitutionally invaded State rights by quoting Chief Justice Taney’s statement “that a power vested in the United States to inflict any punishment for neglect or refusal to perform the duty required by the act of Congress ‘would place every State under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights’.” (p. 347). And observed, “[b]ut the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment.” (p. 348). Therefore, a State statute cannot bestow the authority “when selecting jurors, from whom a panel might be drawn * * *, to exclude all colored men merely because they were colored.” (p. 348).

In Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567 (1880), the Court found a prima facie case of denial of the equal protection of the laws guaranteed by the Fourteenth Amendment and reversed, stating at page 397:

“The showing thus made, including, as it did, the fact (so generally known that the court felt obliged to take judicial notice of it) that no colored citizen had ever been summoned as a juror in the courts of the State,—although its colored population exceeded twenty thousand in 1870, and in 1880 exceeded twenty-six thousand, in a total population of less than one hundred and fifty thousand,-—-presented a prima facie case of denial, by .the officers charged with the selection of grand and petit jurors, of that equality of protection which has been secured by the Constitution and laws of the United States. It was, we think, under all the circumstances, a violent presumption which the State court indulged, that such uniform exclusion of that race from juries, during a period of many years, was solely because, in the judgment of those officers, fairly exercised, the black race in Delaware were utterly disqualified, by want of intelligence, experience, or moral integrity, to sit on juries.”

In Norris v. Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935), the Supreme Court, speaking through Mr. Chief Justice Hughes, quoted at page 589, Carter v. Texas, 177 U. S. 442, 447, 20 S. Ct. 687, 44 L. Ed. 839 (1900), regarding exclusion from grand jury service:

“Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution oí a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Neal v. Delaware, 103 U. S. 370, 397, 26 L. Ed. 567, 574; Gibson v. Mississippi, 162 U. S. 565, 16 S. Ct. 904, 40 L. Ed. 1075.”

The Court noted the above principle is “equally applicable to a similar exclusion of Negroes from service on petit juries.”

The Court found that a prima facie case was established by the evidence noted at page 591 that:

“* * * ‘in a long number of years no negro had been called for jury service in that county/ It appeared that no negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from fifty to seventy-six years. Their testimony was uncontradicted. It was supported by the testimony of officials. The clerk of the jury commission and the clerk of the circuit court had never known of a negro serving on a grand jury in Jackson county. The court reporter, who had not missed a session in that county in twenty-four years, and two jury commissioners testified to the same effect. One of the latter, who was a member of the commission which made up the jury roll for the grand jury which found the indictment, testified that he had ‘never known of a single instance where any negro sat on any grand or petit jury m the entire history of that county’.”

The evidence adduced below established that the names of six Negroes were added to the end of the produced venire list after red lines were drawn to close off the list. Expert testimony established that “these names were superimposed on the red lines, that is, that they were written after the lines had been drawn.” There was no rebuttal evidence on this point. Other evidence established that “col.” was placed next to the names of the colored candidates on the preliminary list of potential jurors. The thrust of the rebuttal was by three jury commissioners to the effect that Negroes viere not excluded from the general list and that in compiling the jury roll neither race nor color were considered. In finding that this evidence failed to rebut the “strong prima facie case,” the Court stated at page 598 that:

“If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the constitutional provision —-adopted with special reference to their protection —would be but a vain and illusory requirement.”

In Pierre v. Louisiana, 306 U. S. 354, 59 S. Ct. 536, 83 L. Ed. 757 (1939), an opinion by Justice Black, the lower court had granted petitioner’s timely motion to quash his indictment and the general venire from which the Grand Jury which indicted him and the Petit Jury Panel scheduled to try him had been drawn. The evidence relied upon was that petitioner was a Negro indicted for murder of a white man; that at least one-third of the population from whence the general venire was drawn were Negroes but no Negroes were named therein; that the state officers had “deliberately excluded therefrom the names of any Negroes qualified * * *” and had “systematically, unlawfully and unconstitutionally excluded Negroes” for at least 20 years “solely and only because of their race or color;” ergo petitioner’s constitutional rights to equal protection stood violative of the Louisiana Constitution and the Fourteenth Amendment of the Federal Constitution. Petitioner offered testimony of twelve witnesses. The State did not proffer any rebuttal. Based upon this evidence, the trial judge quashed the Petit Jury Panel and venire, emptied and purged the selection box and refilled same wherefrom a new Petit Jury Panel was drawn composed of both whites and Negroes. However, the trial judge allowed the indictment by the former general venire drawn Grand Jury to stand. Subsequently, the Louisiana Supreme Court ruled “that the trial court’s finding of discrimination was erroneous.”

The evidence adduced below, noted at page 359, established that:

“* * * from 1896 to 1936 no negro had served on the Grand or Petit Juries in the Parish; that a venire of three hundred in December, 1936, contained the names of three negroes, one of whom was then dead, one of whom (D. N. Dinbaut) was listed on the venire as F. N. Dinfant; the third—called for Petit Jury service in January, 1937—was the only negro who had ever been called for jury service within the memory of the Clerk of the court, the Sheriff, or any other witnesses who testified; and that there were many negro citizens of the Parish qualified under the laws of Louisiana to serve as Grand or Petit Jurors. According to the testimony, negroes constituted 25 to 50 per cent oí a total Parish population of twelve to fifteen thousand. The report of the United States Department of Commerce, Bureau of the Census, for 1930, shows that the total Parish population was fourteen thousand and seventy-eight, 49.7 per cent native white, and 49.3 per cent negro. In a total negro population (ten years old and over) of five thousand two hundred and ninety, 29.9 per cent were classified by the census as illiterate.”

The Court observed that the 1930 census reflected a 70 per cent literacy rate among the negro population and it was “established beyond question that the majority of the negro population could read and write.” Furthermore, the challenged Grand Jury was not drawn from the general venire but from a “supplemental list which itself contained no names of negroes” and the evidence was uncontradicted that “no negro had been selected for Grand Jury service in the Parish within the memory of any of the witnesses who testified on that point.” The Court viewed the evidence presented as constituting a “strong prima facie showing that negroes had been systematically excluded-—because of race—from the Grand Jury and the venire from which it was selected.” (p. 361).

In Smith v. Texas, 311 U. S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940), it had been adduced below that Negroes constituted more than 20% of the population and nearly 10% of the poll tax payers and that from three to six thousand Negroes were qualified by Texas statutes for grand jury service; furthermore, additional evidence encompassing the years 1931 through 1938 established, as noted at page 129, that:

“* * * only 5 of the 384 grand jurors who served during that period were negroes; that of 512 persons summoned for grand jury duty, only 18 were negroes; that of these 18, the names of 13 appeared as the last name on the 16 man jury list, the custom being to select the 12 man grand jury in the order that the names appeared on the list; that of the five negroes summoned for grand jury service who were not given the number 16, 4 were given numbers between 13 and 16, and 1 was number 6; that the result of this numbering was that of the 18 negroes summoned, only 5 ever served, whereas 379 of the 494 white men summoned actually served; that of 32 grand juries empanelled, only 5 had negro members, while 27 had none; that of these 5, the same individual served 3 times, so that only 3 individual negroes served at all; that there had been no negroes on any of the grand juries in 1938, the year petitioner was indicted; that there had been none on any of the grand juries in 1937; that the service of negroes by years had been: 1931, 1; 1932, 2; 1933, 1; 1934, 1; 1935, none; 1936, 1; 1937, none; 1938, none.”

Dismissing chance and accident alone as the responsible elements for the above development and rejecting the State’s attempted rebuttal of petitioner’s prima facie case by urging that there was “no arbitrary or systematic exclusion” relying upon the testimony of two of the three commissioners to the effect that while the subject had been discussed, no Negroes had been selected, but said failure to select Negroes was, according to one commissioner, because “they did not know the names of any who were qualified and the other said that he was not personally acquainted with any member of the Negro race.” Furthermore, this testimony only accounted for “drawing 1 out of the 32 jury panels discussed in the record.” Finally, the Court observed at page 132:

“What the Fourteenth Amendment prohibits is racial discrimination in the selection of grand juries. * * * If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.”

Hill v. Texas, 316 U. S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942) followed the ruling in Neal v. Delaware, supra (103 U. S. 370), and found a prima facie case fully established by a showing that the jury commission had summoned members of the white race for service on the grand jury “with whom they were acquainted and whom they knew to be qualified lo serve.” (p. 402). The commission testified further that they had “no prejudice against the colored race; that they discussed the possibility of selecting negroes to serve, and that they knew negroes in the county.” (p. 402). They made no inquiry into the qualification of the negroes. An assistant district attorney for the county, having resided in the county for 27 or 28 years and having served as a judge of the criminal court for 16 years” never knew of a negro being called to serve on a grand jury in the county. Additional evidence showed that no citations had issued for negroes to serve on the grand jury; that one negro resident for 54 years had often been called for petit jury service but had never been called for grand jury service nor knew any negro who had; two negro residents for 25 years never knew of a negro called for grand jury service; of 66,000 poll taxpayers, 8000 were negro; the 1940 census showed a total population of 398,564 with 61,605 negroes, of which 19,133 were males 21 or over; 1930 census showed 7.5% of the negroes illiterate; the 1940 census also showed 17,263 negro males 25 or over of 'which 16,107 had attended grade school or higher, with 7,979 having attended grade school from 5 to 8 years, 1,970 high school for 1 to 3 years and 1,124 for 4 years, 466 college from 1 to 3 years and 284 for 4 years or more.

The Court stated at page 404 that:

“Discrimination can arise from the action of commissioners who excluded all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.

In reversing, the Court stated that “* * * it is our duty as-well as the State’s to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees.” (p. 406). Furthermore, as noted at page 406:

“Equal protection of the laws is something more than an abstract right. It is a command which the State must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all—the least deserving as well as the most virtuous.”

In Akins v. Texas, 325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945), the Court, speaking through Mr. Justice-Reed, affirmed the lower court in finding that the evidence presented failed to establish a deliberate and intentional limitation: of the number of Negroes on the grand jury list. The Court at page 403 stated:

“Fairness in selection has never been held to require proportional representation of races upon a jury. Virginia v. Rives, 100 U. S. 313, 322-23; Thomas v. Texas, 212 U. S. 278, 282. Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race’s proportion of the eligible individuals. The number of our races and nationalities, stands m the way of evolution of such a conception of due ¡process or equal protection. Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried. But such defendants are-entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination ‘in the selection of jurors on racial grounds.’ Hill v. Texas, supra, 404. Our directions that indictments be quashed when Negroes, although numerous in the community, were excluded from grand jury lists have been based on the theory that their continual exclusion indicated discrimination and not on the theory that racial groups must be recognized. Norris v. Alabama, supra; Hill v. Texas, supra; Smith v. Texas, supra. The mere lact of inequality in the number selected does not in itself show discrimination. A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.”

Cassell v. Texas, 339 U. S. 282, 70 S. Ct. 629, 94 L. Ed. 839 (1950) followed Hill v. Texas, supra and narrowed its consideration to the period from the time of that decision on June 1, 1942 and November, 1947, when the petitioner was indicted. During this period there were 21 grand juries of 252 members of the panels and 17, or 6.7% were Negroes. This discrepancy can be partially explained by the qualifications set by Texas for service on the grand jury. However, the Court observed that an individual’s qualifications are “not hard to ascertain, and with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory requirements for jury service.” (p. 289).

However, the Court reaffirmed, at page 287, that proportional representation is forbidden and that an accused is “entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.” The Court then stated at page 289 that r

“When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race or color.”

Finding that there was a failure of compliance with this principle, the Court determined that “the result has been racial discrimination.” Discrimination does not depend upon “systematic exclusion continuing over a long period and practiced by a succession of jury commissioners,” but “it is enough to have direct evidence based on the statements of the jury commissioners in the very case.” In fact, as stated at page 290:

“Discrimination may be proved in other ways than by evidence of long-continued unexplained absence of Negroes from many panels. The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of the petitioner’s constitutional rights.”

In Avery v. Georgia, 345 U. S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), the jury commissioners selected the names of prospective jurors from the county tax returns and printed a list of the selected names placing the names of white persons on white tickets and the names of Negroes on yellow tickets. The tickets were then placed in a jury box for drawing. After the drawing the tickets were handed to a sheriff who entrusted them to a clerk whose duty was to “arrange” the tickets and type a final list of those to serve. Not a single Negro appeared on the instant panel though many were available. The above practice of using the different colored tickets to differentiate white from Negroes was found to make “it easier for those to discriminate who are of a mind to discriminate.” This evidence established a prima facie case, which the State failed to rebut thus dictating a reversal.

In Williams v. Georgia, 349 U. S. 375, 75 S. Ct. 814, 99 L. Ed. 1161 (1955), the Court found a continuation of the practice found in Avery, supra, and remanded for reconsideration although procedurally Williams, unlike Avery, had failed to object to the array when the jury was presented to him, as was required by Georgia procedure. Of the 120 jurors involved 4 were Negroes, three were subsequently excused for cause and one peremptorily challenged by the State, so no Negroes were on the jury trying Williams.

In Hernandez v. Texas, 347 U. S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954), the petitioner maintained a showing, as noted at pages 480-81, that:

“* * * 14% of the population of Jackson County were persons with Mexican or Latin-American surnames and that 11 % of the males over 21 bore such names. The County Tax Assessor testified that 6 or 7 percent of the freeholders on the tax rolls of the County were persons of Mexican descent. The State of Texas stipulated that ‘for the last twenty-five years there is no record of any person with a Mexican or Latin-American name having served on a jury commission, grand jury or petit jury in Jackson County’.”

The Court found that the petitioner “met the burden of proof imposed in Norris v. Alabama, supra,and that the State’s rebuttal testimony that the only objective had been “to select those whom they thought were best qualified,” was inadequate. In reversing, the Court observed that “it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, * * (p. 482).

In Reece v. Georgia, 350 U. S. 85, 76 S. Ct. 167, 100 L. Ed. 77 (1955), a “strong showing of systematic exclusion” was established by the uncontradicted evidence, noted at page 87, that:

“* * * no Negro had served on the grand jury in Cobb County for the previous 18 years; the 1950 census showed that the county had a white population of 55,-606 and a Negro population of 6,224; the same census showed a population of 16,201 male white citizens over 21 years of age, and 1,710 male Negro citizens over 21 years of age. Petitioner’s motion alleged, and this was not contradicted, that there were 534 names on the grand-jury list and of this number only six were Negroes. Of the six Negroes, one did not reside in the county and the other five testified in this proceeding. Two were over 80 years of age: one was partially deaf and the other in poor health. The remaining three were 62 years of age. Each of the witnesses had lived in the county for at least 30 years. None had ever served on a grand jury nor heard of any other Negro serving on a grand jury in the county. The Clerk and Deputy Clerk of the court testified that the jury boxes had been revised in 1952, that there was no discrimination or systematic exclusion of Negroes from the grand-jury list, that six Negroes were on the list, and that neither had ever known a Negro to serve on a grand jury in Cobb County.”

The Georgia Supreme Court’s finding that the petitioner’s challenge to the grand jury was untimely under the practice of that State as it was not made prior to indictment was reversed and remanded when the record revealed petitioner was ignorant ■of this requirement and that he lacked counsel. The Supreme Court stated that “the right to object to a grand jury presupposes an opportunity to exercise that right.” (p. 89).

In Eubanks v. Louisiana, 356 U. S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991 (1958), Justice Black observed that “[i]n an unbroken line of cases stretching back almost 80 years this Court has held that a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which his race has been excluded because of their race.” (p. 585).

That Court was satisfied that systematic exclusion of Negroes from grand juries had occurred based upon the evidence, noted at page 586, that:

“Although Negroes comprise about one-third of the population of the parish, the uncontradicted testimony of various witnesses established that only one Negro had been picked for grand jury duty within memory. And this lone exception apparently resulted from the mistaken impression that the juror was white. From 1936, when the Commission first began to include Negroes in the pool of potential jurors, until 1954, when petitioner was indicted, 36 grand juries were selected in the parish. Six or more Negroes were included in each list submitted to the local judges. Yet out of the 432 jurors selected only the single Negro was chosen.”

In Arnold v. North Carolina, 376 U. S. 773, 84 S. Ct. 1032, 12 L. Ed. 2d 77 (1964), testimony of the county tax supervisor established that 12,250 white persons and 4,819 Negroes resided in the county, with the poll tax reflecting 5,583 white men and 2,499 Negro men. Furthermore, the clerk of the court testified that while as many as four or five Negroes had been on the regular jury panel from which the grand jury was selected, in his 24 years as clerk he could only remember one Negro serving on a grand jury, another having been selected but excused. The State offered no evidence. Relying upon Norris v. Alabama, supra, and Eubanks v. Louisiana, supra, the Court reversed finding that a prima facie case of systematic exclusion had been established and not rebutted.

In the three recent decisions of Sims v. Georgia, 389 U. S. 404, 88 S. Ct. 523; Coleman v. Alabama, 389 U. S. 22, 88 S. Ct. 2, and Jones v. Georgia, 389 U. S. 24, 88 S. Ct. 4, the Supreme Court of the United States again enunciated the principles which culminated in Whitus, supra.

In Jones v. Georgia, supra, the Georgia Supreme Court had .attempted to distinguish it from Whitus because “public officers •are presumed to have discharged their sworn official duties. * * * Under the testimony in this case we cannot assume that the jury commissioners did not eliminate prospective jurors on the basis of their competency to serve, rather than because of racial discrimination.” In reversing and remanding, the Supreme Court stated that the burden upon the State to explain “ ‘the disparity between the percentage of Negroes on the tax •digest and those on the venire’s,’ Whitus, supra, 385 U. S. at 552, 87 S. Ct. at 647, was not met by the Georgia Supreme Court’s reliance on the stated presumptions.” The prima facie case was established by evidence of a 20 percent composition •of Negroes on the tax digests and a five percent composition of Negroes on the venires.

In Coleman v. Alabama, supra, the Court noted that “it appeared that no Negro served on the grand jury which indicted •or the petit jury which convicted petitioner. L't further appeared that up to the time of petitioner’s trial, no Negro had ever served ■on a grand jury panel and few, if any, Negroes had served on petit jury panels.” This evidence was found to constitute a prima iacie case of denial of equal protection. The Alabama Supreme ■Court’s observation that “that disparity can be explained by a number of other factors” in face of the fact that the only factors mentioned were “that Negroes had moved away from the county and that some may have been under the statutory disqualification of having suffered a felony conviction,” failed to constitute a sufficient rebuttal of the prima facie case established by petitioner and therefore dictated a reversal and remand.

In Sims v. Georgia, supra, the Court stated “that the grand and petit lists were drawn from the county tax digests which separately listed taxpayers by race in conformity with the then existing Georgia law. Negroes constituted 24.4% of the individual taxpayers in the county. However, they amounted to only 4.7% of the names on the grand jury list and 9.8% of the names on the traverse jury list from which petitioner’s grand and petit juries were selected.” This evidence evolved a successful prima facie case which the State attempted to rebut with the testimony of one jury commissioner “that he or one of the other commissioners knew personally every qualified person in the county and did not discriminate in selecting names for the jury list.” The Court volunteered that the facts of this case make it “virtually indistinguishable” from Whitus, supra. The Court reversed and remanded.

In striving to assure that all persons truly stand equal before the laws, the pervading directive enunciated throughout the aforenoted cases is that systematic exclusion and, or token inclusion stand violative of the Fourteenth Amendment. This protection permeates the entire process of jury selection and is inclusive of both Grand and Petit Jury panels. As observed, the original interpretation in the Slaughter-House Cases, supra, that the Fourteenth Amendment’s “main purpose was to establish the citizenship of the Negro,” was drawn upon in Strauder v. West Virginia, supra, to void a statute barring Negroes from the right to serve as jurors. However, a mixed jury was not viewed as essential to equal protection. Virginia v. Rives, 100 U. S. 313. The Court reminded the States that the Fourteenth Amendment had placed limitations upon State activity in this area and authorized congressional interference and compulsion. Ex Parte Virginia, supra. The burden of proving the existence of purposeful discrimination rests with the petitioner. Tat'rance v. Florida, supra; Whitus v. Georgia, supra. However, once a prima facie case is made out the burden shifts to the prosecution. Whitus v. Georgia, supra. The aforenoted cases constitute an illustrative guide to the factors of consideration in reaching a determination of the prima facie posture. In 1880, Neal v. Delaware, supra, set forth the manner and pattern of proof necessary to constitute a prima facie showing of denial of equal protection and due process. Thus, with Neal v. Delaware, supra, the law was settled barring the States from practicing racial discrimination in the selection of jurors. That manner of prima facie proof evidence in Neal, supra, has been recognized and faithfully followed in those cases subsequently advanced on that theory. See Norris v. Alabama, supra; Pierre v. Louisiana, supra; Smith v. Texas, supra; Hill v. Texas, supra; Cassell v. Texas, supra; Avery v. Georgia, supra; Williams v. Georgia, supra; Hernandez v. Texas, 347 U.S. 475; Reece v. Georgia, supra; Eubanks v. Louisiana, supra; Arnold v. North Carolina, supra; Whitus v. Georgia, supra. The segregation of jurors by race, assigning different colored slips for the names of white and colored persons, clearly constitutes a satisfactory showing of a prima facie case. Avery v. Georgia, supra. The cases noted above established that evidence of unexplained exclusion extending over a long period of time and practiced by a succession of jury commissioners supported by substantial percentage variations of qualified Negroes available and those called to serve, and those selected to serve effectively establishes a prima facie showing. However, it is equally clear that discrimination, apart from such a showing, may exist where supported by instant evidence of unexplained disparity between available qualified Negroes and those actually on the venires. Cassell v. Texas, supra. While proportional representation has been specifically rejected, Virginia v. Rives, supra, at pages 322-323; Adkins v. Texas, supra; Cassell v. Texas, supra, at page 287; Hernandez v. Texas, supra, at page 482; it is nevertheless clear that the Supreme Court closely scrutinizes the variable percentages evidenced in the presented case to assist in a determination of the existence of either exclusion or inclusion. Naturally, the protection afforded does not direct itself to any one race or minority but to all persons.

In the instant case, the appellant urges that his challenge of the entire array of the jury, reciting the comparatively few Negroes selected in the original number of names from which the panels were derived, establishes a prima facie case that the jury was improperly drawn and impaneled. It was stipulated that 14 of 400 prospective jurors were of the Negro race and that one Negro served on the Grand Jury in November 1965 and that a total of six actually served on the Petit Juries during 1965 and 1966. At trial, one Negro served as a juror and one as an alternate. This was the entire import of the appellant’s evidence which purports to establish the prima facie case and consequential shift of the burden as alluded to in Clark v. Allgood, supra, and Whitus v. Georgia, supra. These bare facts and figures, without more, do not bring this case within the ambit of the Whitus and Clark and other cited cases so as to constitute a prima facie case of discrimination.

In Grayson v. State, 1 Md. App. 548, 555, 232 A. 2d 284 (1967), we stated that:

“Unless the absence of Negroes from a jury panel is proven by competent evidence to be by purposeful discrimination or design, appellant’s bald assertion that he had been denied a fair and impartial trial will not be sustained. See Giles v. State, 229 Md. 370, 183 A. 2d 359 (1961); Jackson v. State, 180 Md. 658, 26 A. 2d 815 (1942); Zimmerman v. State, 191 Md. 7, 59 A. 2d 675 (1948); aff’d 336 U. S. 901 (1949); U. S. ex rel. Jackson v. Brady, 133 F. 2d 476 (4th Cir. 1943), cert. den. 319 U. S. 746 (1943), reh. den. 319 U.S. 784 (1943); Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965).”

On the record before us, therefore, we find that the appellant failed to establish a factual base upon which to establish a prima facie case and that the mere raising of a variation between the number of Negro and white jurors, in and of itself alone, is not sufficient to constitute an adequate showing of the prerequisite competent evidence of jury discrimination.

II

At the conclusion of the State’s case, a Motion for Judgment of Acquittal was made by the appellant, but denied by the trial court. Subsequent thereto, the appellant took the stand in his own behalf and thus withdrew his motion. Maryland Rules of Procedure 755 (b); Lucas v. State, 2 Md. App. 590, 592, 235 A. 2d 780, 781 (1967); Loker v. State, 2 Md. App. 1, 19, 233 A. 2d 342 (1967). The motion was renewed at the close of the entire case. In reviewing the lower court’s denial of a Motion for Judgment of Acquittal, made at the conclusion of the case, the review becomes a determination of the sufficiency of the evidence. See Clarke v. State, 238 Md. 11, 207 A. 2d 456 (1965); Lucas v. State, supra; McGlothlin v. State, 1 Md. App. 256, 261, 229 A. 2d 428 (1967).

The thrust of the appellant’s argument is that the time lapse involved was insufficient for premeditation and to formulate a design to kill. Appellant further urges that his version of the incident was more credible than that of the eyewitness, Mrs. Wimberly, wife of the deceased.

Article 27, § 407 of the Annotated Code of Maryland (1967 Replacement Vol.), states:

“All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.”

In Hyde v. State, 228 Md. 209, 215-216, 179 A. 2d 421 (1962), the Court of Appeals, speakng through Judge Prescott, stated:

“ 'Premeditated’ means that the killing must have been meditated, planned in the mind, beforehand; that the design to kill must have preceded the killing by an appreciable length of time, time enough to deliberate; and in order to justify a conviction of first degree murder, the trier of facts must find the actual intent (wilfulness), the fully formed purpose to kill (deliberation), with enough time for deliberation and premeditation to convince the trier of facts that this purpose is not the immediate offspring of rashness and impetuous temper (lack of deliberation and premeditation), but that the mind has become fully conscious of its own design. Although the design to kill must precede the killing by some appreciable length of time, that time need not be long. If the killing be not the instant effect of impulse, if there be hesitation or doubt to overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. Cummings v. State, 223 Md. 606, 165 A. 2d 886; Faulcon v. State, 211 Md. 249, 126 A. 2d 858; Dunn v. State, 226 Md. 463, 174 A. 2d 185; Chisley v. State, 202 Md. 87, 106, 95 A. 2d 577. And the question of premeditation must be determined by the facts of each particular case. Cuturnings v. State; Chisley v. State, both supra.”

This rationale was adopted in Leyva v. State, 2 Md. App. 120, 123, 233 A. 2d 498 (1967).

Since the jury is in the favored position to evaluate and judge the attitude and demeanor of the witness, the credibility of a witness is a primary matter for the trier of facts to determine. Hutchinson v. State, 1 Md. App. 362, 367, 230 A. 2d 352, 354 (1967); Borman v. State, 1 Md. App. 276, 280, 229 A. 2d 440, 442 (1967). Furthermore, it is well settled that the trier of facts is under no obligation to believe the exculpatory testimony of the defendant. Willis v. State, 2 Md. App. 662, 665, 236 A. 2d 430 (1968); Lucas v. State, supra, 593; Dunlap v. State, 1 Md. App. 444, 447, 230 A. 2d 690, 691 (1967).

In the instant case, the appellant admitted shooting the deceased, but protested his innocence upon the theory of self-defense.

From the testimony, which the jury found to be credible, it was established that the appellant had been a guest at the deceased’s residence on the day of the shooting and had left after there had been a disturbance during the afternoon, had later telephoned the Wimberlys and inexplicably stated to Mrs. Wimberly, over the phone, that “I’m tired of this damn * * * [a vulgar expression],” and had then returned, uninvited and unexpected, to the Wimberly home and engaged in a conversation with the deceased and his wife which evolved into an argument and an ensuing altercation with the deceased, culminating in the shooting to death of the deceased by the appellant after the deceased had ordered the appellant out of his house and then raised a chair to accentuate his order. The testimony also established that the deceased was unarmed and that the appellant was angered over the deceased’s comments that he and Coretha Thomas were unmarried. When the deceased got up off the bed, walked around the foot of the bed and picked up the chair, the appellant stated, “No Wimpey, I’m not afraid of you.” Then, as Mrs. Wimberly started to leave the bedroom, she noted the appellant standing in front of an open door with a gun in his hand, pointed straight at the deceased. Mrs. Wimberly ran into her bedroom and then heard the shots. The appellant fled from the scene, disposed of his weapon and later turned himself in. We find from the above testimony that there was a sufficient inference drawn from this testimony to negate any notion that the killing was the offspring of rashness or impetuosity, or that it was the instant effect of impulse. See Leyva v. State; supra. This evidence supplied the jury with a sufficient basis to find the corpus delicti of first degree murder. Hyde v. State, supra; Cummings v. State, 223 Md. 606, 611-612, 165 A. 2d 886 (1960); Faulcon v. State, 211 Md. 249, 257, 258, 126 A. 2d 858 (1956); Chisley v. State, 202 Md. 87, 105-106, 95 A. 2d 577 (1953); Hayes v. State, 3 Md. App. 4, 10, 237 A. 2d 531 (1968).

“In trial before a jury this Court can review the sufficiency of the evidence, but this Court does not inquire into and measure the weight of the evidence but only determines whether there is any relevant evidence which could properly sustain a conviction.” Hayes v. State, supra; Banks v. State, 2 Md. App. 373, 376, 234 A. 2d 798 (1967); Culver v. State, 1 Md. App. 406, 409, 230 A. 2d 361 (1967); Quinn v. State, 1 Md. App. 373, 375, 230 A. 2d 368 (1967); Borman v. State, supra, at 280; Graef v. State, 1 Md. App. 161, 228 A. 2d 480 (1967). In the instant case, there was legally sufficient evidence from which the jury could be fairly convinced beyond a reasonable doubt of the appellant’s guilt.

Judgment affirmed.

      . It is of some assistance to observe that in examination of the element of “probability” involved, Whitus v. Georgia, supra, directed attention to Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination cases, 80 Harv. L. Rev. 338-(1966).


source: Caselaw Access Project

author: Anderson, J.,

license: Public Domain

text:
    JOHN McLAUGHLIN v. STATE OF MARYLAND
    [No. 88,
    September Term, 1967.]

      Decided April 3, 1968.

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

      Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Joseph Raymond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, John McLaughlin, was tried in the Criminal Court of Baltimore by a jury, Judge J. Gilbert Prendergast presiding, upon three separate indictments, charging him with riot, breaking and entering, and malicious destruction of property. The indictments came about as a result of the penitentiary riot that occurred on July 8, 1966. He was found guilty by the jury on the indictment charging him with malicious destruction of property and not guilty on each of the other two indictments. He was sentenced to the Maryland Penitentiary for the term of one year, to run consecutively with the term he is now serving, and was fined $500.00.

On July 8, 1966, at approximately 11:30 a.m., several hundred prisoners incarcerated in the Maryland Penitentiary began to riot. Order was not restored in the institution until approximately 4:30 p.m. During the course of the riot considerable damage was done to the institution and the commissary was looted and set afire. Fires were also started in the industrial shop building which is designated as “G” building, in the Print and Tag shop, and in the institution’s laundry. While the fires were being fought by the Baltimore City Fire Department approximately two hundred inmates were seen running and milling about the prison yards coming out of the dining hall and commissary. They were screaming and yelling, hurling missiles and smashing windows. The warden of the penitentiary put the institution’s riot plan in effect and the prison guards were reinforced by the Baltimore City Police Department and their K-9 Squad. While the riot was in progress the inmates attempted to storm the institution’s power house, but were thwarted by the guards and police. The door to the commissary was battered down and its entire contents were taken by the inmates during the looting of that building. The damages to the institution and losses from the commissary were estimated at $750,000.

Appellant was positively identified by eight witnesses testifying on behalf of the State as one of the principal participants in the riot. They were correctional officers and other employees of the institution personnel, who testified that appellant was one of the leaders, going from building to building, armed with a piece of wood, smashing windows, encouraging the others on, and was engaged in the attempt to storm the power house as well as the looting of the commissary.

Appellant took the stand in his own behalf and denied any participation in the riot and disturbance on July 8, 1966. He stated he was only an observer and could not get out of the prison yard during the commotion because the doors were locked. He further testified he went into the midst of the milling inmates to protect Father Toby, the prison Chaplain, and into the commissary to rescue Assistant Warden Jordan from the fire. Eight witnesses testified on behalf of the appellant. Six of these witnesses were inmates of the penitentiary. The other two witnesses were Father Toby and a Correctional officer.

Appellant raises ten contentions on appeal:

1. That the lower court should have granted appellant’s motion for a change of venue.
2. That the court should have granted appellant’s motion to dismiss the indictment filed in proper person.
3. That the court erred in granting the State’s motion for consolidation of the three cases against appellant over his objection.
4. That the court erred in admitting the photographs into evidence (State’s Exhibits la through 2 and A a through Bb).
5. That the court erred in refusing to permit defense counsel to interrogate defense witnesses as to their credibility.
6. That the court erred in refusing to permit defense counsel to interrogate Isaac Jacobs in reference to the credibility of the State’s witness, Robert Jordan.
7. That the court erred in its instructions to the jury in the malicious destruction of property indictment.
8. That the court erred in refusing to grant appellant’s motion for judgment of acquittal.
9. That the verdict was against the sufficiency of the evidence.
10. That the court erred in refusing appellant a copy of the transcript at the State’s expense for the purpose of arguing his motion for a new trial.

I

Appellant’s first contention is that the court should have granted his motion for a change of venue since he could not get a fair and impartial trial in Baltimore City because the local newspapers and other news media had been full of items and stories concerning the alleged riot.

The question of whether a non-capital criminal case should be removed to another jurisdiction is one which rests within the trial court’s discretion. Maryland Constitution, Art. IV, Sec. 8 ; Maryland Rules 542 (1) and 738 (b). However, the trial court’s decision is reviewable on appeal for a determination of whether there has been an abuse of discretion. Seidman v. State, 230 Md. 305, 187 A. 2d 109 (1962); Benton v. State, 1 Md. 647, 652, 232 A. 2d 541 (1967).

The question before the court is whether the trial court abused its discretion in refusing the requested removal. The cases in this State hold that newspaper disclosures standing alone do not support a defendant’s suggestion that such disclosures deny him a fair trial. Gray v. State, 224 Md. 308, 316, 167 A. 2d 865 (1961) and cases cited.

The lower court permitted the appellant to make his motion for removal orally and to take the stand and testify in support of his motion. Appellant testified that he was one of thirty men sent to the City Jail on July 10, 1966, as one of the ringleaders of the riot which had occurred on July 8, 1966, and that this had appeared in news media. He also stated that he had noticed in a newspaper where it said Saturday that the trials were to begin Monday of the alleged ringleaders, and he felt that it was unjust that the tab of ringleader was placed upon them. He further testified that the Morning Sun of July 11, 1966 gave the thirty names of the men sent to the City Jail, of whom he was one, and that the article stated that the men were sent there by authority of Vernon L. Peppersack, Commissioner of Correction, who stated these men were the ringleaders of the riot.

The court in denying the motion stated that appellant had given no reason why he could not get a fair and impartial trial before the court. As to adverse publicity, the court said that he was of the opinion that the publicity had been distinctly favorable to the defendants in the alleged riot cases because many of them had been tried and found not guilty by a jury, some by the court, and only one man convicted so far. Also, a great many cases had been dismissed by the State and the publicity was all favorable to the defense.

The appellant chose to be tried by a jury and the questions and answers on voir dire as submitted by his counsel adequately covered the matter of freedom from prejudice, and, in particular, adverse news publicity.

We, therefore, must conclude from this record that the trial judge did not abuse his discretion in denying the motion for removal.

II

Appellant contends that the court should have granted the motion to dismiss the indictment filed in proper person. The motion sets forth no grounds that can be understood, save the fact that he did not receive a preliminary hearing. This contention is groundless. Under Maryland law a preliminary hearing is not required. Cherrix v. Warden, 1 Md. App. 65, 68, 227 A. 2d 50 (1967) and cases cited. Here, the case was submitted directly to the Grand Jury.

Ill

Appellant’s third contention is that the court erred in granting the State’s motion for consolidation of the three cases against him over his objection. He argues that the crimes with which he is charged could not have “conceivably” been joined in one indictment without a misjoinder of counts. While appellant cites no authority to support his contention, the question raised is an interesting one.

Here, appellant was charged with three separate offenses, riot, breaking and entering, and malicious destruction of property. All three offenses grew out of the same transaction, the riot in the Maryland Penitentiary on July 8, 1966; all involved the same facts, occurred at or about the same time, on the same date and at the same place. Moreover, the crimes of malicious destruction of property and breaking and entering were acts of the penitentiary inmates which constituted part of the riot.

Maryland Rule 734 provides that: “The court may order two or more indictments to be tried together, if the offenses, and the defendants, if there be more than one, could have been joined in a single indictment.” The purpose is to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in its discretion, deems a joint trial proper. Maryland Rule 716 a. provides: “Two or more offenses may be charged in the same indictment.”

Since the trial judge concluded that neither the accused nor State would be prejudiced by a joinder for trial, as provided in Maryland Rule 735, we find that the trial judge properly ordered a joinder for trial of the three indictments under which appellant was charged. The appellant could have been charged with all of the offenses in one indictment by using separate counts under the provisions of Rule 716 a. and Rule 734, both supra; since under the facts herein the offenses are of the same general nature, form part of the development of the same transaction, and permit the same mode of trial. 12 Maryland Law Encyclopedia, Sec. 33, p. 204; Lewis v. State, 235 Md. 588, 202 A. 2d 370. Moreover, appellant was acquitted of the two more serious offenses and convicted of the lesser, malicious destruction of property, which would tend to negate any claim of prejudice arising from the joinder for trial of the three indictments.

IV

Appellant next contends that the photographs showing the damage to the penitentiary were improperly admitted in evidence. This contention is totally devoid of merit.

The photographer who took the photographs testified that each of them truly represented the scene as he saw it at the time he took them.

While the rule is that the admissibility of photographs is ordinarily left to the discretion of the trial court, there must be competent extrinsic evidence showing the photograph to be a true representation of the scene or object which it purports to represent at the time when the appearance of such scene or object is relevant to the inquiry in connection with which the photograph is offered. Sisk v. State, 232 Md. 155, 158, 192 A. 2d 108 (1963) and cases cited. Sisk v. State, 236 Md. 589, 204 A. 2d 684 (1964).

Here, the evidence shows that the photographs were an accurate representation of the scene at the time they were taken, which was two days after the riot. Furthermore, appellant’s argument that someone other than the photographer had made entries upon the back of the photographs is devoid of merit since, after identifying each photograph, the photographer testified that the notation made on the back of each photograph stated exactly what he said it represented.

V

Appellant’s fifth contention is that the court erred in refusing to permit defense counsel to interrogate defense witnesses as to their credibility.

Appellant produced as witnesses Clarence Hardy and James W. Campbell who testified in his behalf. These two witnesses, who were inmates of the Maryland Penitentiary, were cross-examined by the State as to their criminal records to reflect upon their credibility. Counsel for appellant then attempted on re-direct examination to question the witnesses Hardy and Campbell as to whether they had been indicted for crimes as a result of the riot at the penitentiary. The State objected and the objection was sustained. Appellant claims that he should have been able to show that these two inmates were not indicted as participants in the riot as evidence to sustain their character as to credibility.

We find no merit in this contention. The question is not whether these witnesses participated in an unlawful act, but whether the appellant did.

The general rule is where the character of the witness is impeached by matters brought out on cross-examination, or by evidence aliunde as to character, the witness may be sustained by evidence of good character, but it must, in either case, relate to the character of the witness for truth. Vernon v. Tucker, 30 Md. 456, 461 (1869).

The evidence which appellant attempted to offer did not relate to the witnesses’ character for truth and veracity, but only as to whether they had been indicted for the same offenses as the appellant.

Furthermore, the mere fact that a witness has been indicted would not affect his credibility and is not admissible in evidence to impeach him. Kremen v. Rubin, 139 Md. 682, 116 A. 640 (1922). Nor may an accusation, as distinguished from a conviction, be proved as a means of impeaching the credibility of a witness. Niemoth v. State, 160 Md. 544, 557, 154 A. 66 (1931). Since the fact that a witness has been indicted, but not convicted, would not affect his credibility for truth and veracity and is inadmissible, the fact that he had not been indicted would likewise be inadmissible as bearing on his truth and veracity.

VI

There is no merit in this contention. Defense counsel sought to ask the witness, Isaac Jacobs, if he had been assaulted by Officer Robert Jordan on July 29th or 30th, 1966, some 22 days after the riot. The question was purportedly asked for the purpose of impeaching the witness Jordan and was clearly inadmissible.

A witness may not be impeached by testimony or cross-examination in respect to facts that are collateral, irrelevant or immaterial to the issues of the case. Harris v. State, 237 Md. 299, 302, 206 A. 2d 254 (1965); Sanders v. State, 1 Md. App. 630, 232 A. 2d 555 (1967).

The attempt by the appellant to show that Officer Jordan assaulted inmate Jacobs 22 days after the date of the alleged offense was an attempt to produce evidence completely irrelevant and immaterial to the trial of the appellant.

VII

Appellant complains that the court erred in its instructions to the jury on the malicious destruction of property indictment.

There is no merit to this contention. A careful review of the trial court’s instructions shows that the court’s comments, both as to State and defense witnesses, were fair and impartial. Appellant’s complaint, which misquotes the court’s comments in his brief, is apparently based on an alleged failure by the court to comment on the testimony of all the appellant’s witnesses. The court carefully outlined the conflicting testimony on the part of the State and the appellant, and told the jury that in making a finding they must weigh the evidence. No more was required. While any summation of the evidence by the trial court must be made fairly and impartially, this has never been taken to mean that the trial court must comment on all of the evidence in the case Coby v. State, 225 Md. 293, 296-97, 170 A. 2d 199 (1961).

VIII AND IX

Appellant’s eighth and ninth contentions may be considered together.

In reviewing the trial court’s denial of a motion for judgment of acquittal renewed at the conclusion of the case, the review becomes a determination of the sufficiency of the evidence. Lucas v. State, 2 Md. App. 590, 592, 235 A. 2d 780, 781 (1967); Laker v. State, 2 Md. App. 1, 25, 233 A. 2d 342 (1967); McGlothlin v. State, 1 Md. App. 256, 261, 229 A. 2d 428 (1967).

When a case is tried by a jury, an appellate court does not weigh the evidence presented to the jury, but only determines its sufficiency to take the case to the jury. Ramsey v. State, 239 Md. 561, 566-67, 212 A. 2d 319 (1965); Loker v. State, supra; Brown v. State, 1 Md. App. 571, 576, 232 A. 2d 261 (1967).

There was ample evidence on behalf of the State to submit the case to the jury. The State produced ten witnesses on direct examination and four on rebuttal, at least six of whom testified that they observed appellant as an active participant in the riotous proceedings at the penitentiary on July 8, 1966. He was observed by them leading a group of rioters with a three-foot piece of wood in his hand, breaking and smashing windows, attempting to break into the power house and commissary, and was. engaged in the looting that took place in the commissary.

Appellant contends that the testimony of the State’s witnesses was directly contradicted by the testimony of the witnesses for the defense, who testified that they did not observe appellant break any windows or participate in any way in the riot. In his own testimony, he testified that he took no part in the riot, that he was protecting Father Toby in the yard and only entered the commissary to save Officer Jordan from the fire.

Where testimony is conflicting, the weight and credibility of the witnesses’ testimony is for the jury to determine.

In order to overturn a judgment entered on a verdict of a jury for insufficiency of the evidence, it is necessary to show that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find the defendant guilty beyond a reasonable doubt. Boone v. State, 2 Md. App. 80, 233 A. 2d 476, 493 (1967); Loker v. State, supra. Here, we find no such showing and the evidence was sufficient to convict.

Appellant also contends that the court should have granted his motion as he could not have been convicted of malicious destruction of property because the indictment places the ownership of the property destroyed in the State of Maryland instead of in another individual or individuals as required by the statute. There is no such requirement in the statute. Article 27, Sec. Ill, Maryland Code (1957) provides: “Any person who shall wilfully and maliciously destroy * * * any real or personal property of another (emphasis supplied) shall be deemed guilty of a misdemeanor. * * *” The property destroyed was the property of the penitentiary and was ownéd by the State of Maryland. The indictment, as drawn, conforms to the statute.

X

Appellant lastly complains that the trial court erred in denying him a copy of a transcript of the trial at the State’s expense to be used for the purpose of arguing his motion for a new trial. He alleges that the refusal by the trial court to grant him a copy for this purpose amounted to a denial of due process of law. A transcript of the testimony was furnished appellant for this appeal.

Transcripts for the purpose of arguing a motion for a new trial are no longer required by the Supreme Bench of Baltimore, and a transcript need not be furnished without a showing of how it could serve a useful purpose.

Appellant makes no showing as to his need to have the transcript to argue his motion for a new trial, save that the testimony was voluminous. Since he waited until the day of the hearing on the motion to request the transcript, we deem this an inadequate reason. Brown v. State, supra. There was no denial of due process.

Judgment affirmed.


author: Per Curiam.

text:
    CURTIS DEAN SPARKMAN v. STATE OF MARYLAND
    [No. 124,
    September Term, 1967.]

      Decided April 3, 1968.

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

      Francis J. Meagher for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Barrett Freedlander, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

In a non-jury trial in the Criminal Court of Baltimore, appellant was found guilty of storehouse breaking with intent to steal goods over the value of $100.00, and rogue and vagabond, under the first and fifth counts of the same indictment, and sentenced to not more than two years in the Maryland Correctional Institution on each count, sentences to run concurrently.

On this appeal, appellant contends :

1. That the trial court erred in admitting into evidence hearsay testimony of statements made to the arresting officer by an alleged witness to the crime.
2. That the trial court erred in its finding that the evidence proved ownership of the premises mentioned in the indictment.
3. That the trial court erred in finding the evidence sufficient to convict in this case.

The evidence adduced at the trial showed that between 2:00 a.m. and 2 :30 a.m. on the morning of November 22, 1966, Warren H. Wimmer was called by police officers to French’s Inc., a sporting goods store located at 304 W. Baltimore Street, to check a suspected breaking. Wimmer testified that he was employed at the store and was the owner. Upon arrival he unlocked the premises and, together with the police officers, went to the second floor where he observed that a window had been pushed in and that the bottom section had been pushed off of the track. He had left the store on November 21st at 5 :30 p.m., and at that time the premises were locked. He testified that he had visited the second floor a day or two before and had failed to notice anything unusual and everything appeared in order. The merchandise in the store at the time was valued between $30,000 and $50,000.

The witness, Harvey Howard, an employee of the Penny Arcade located at 2 N. Howard Street, testified that he and his employer left work at 2:00 a.m., and as he passed the alley in the rear of the store, he heard a noise which sounded like someone trying to break in. He entered the alley and saw a man standing under a fire escape attached to the French store building. When asked what he was doing, the man ran. He then observed another man on the fire escape landing. After calling to his boss that someone was trying to break in back there, he took hold of the fire escape and shook it. The man on the fire escape descended a few steps and dropped down. As he did so, he pushed Howard off balance and ran.

Officer Redding and his partner were parked in the 300 block of Baltimore Street when they heard someone call, “police.” They saw one suspect come running out and then another. The officer apprehended the second man after a chase. When brought back, he was identified by the witness Howard as the man he had seen on the fire escape.

I

Appellant’s first contention is that the admission, over objection, of Officer Redding’s testimony that “Mr. Howard said this gentleman was upon the fire escape trying to break in” was inadmissible as hearsay and was reversible error.

Although the statement was made in the presence of the defendant, and was not denied, the lower court properly refused to admit it on that ground, Miller v. State, 231 Md. 215, 189 A. 2d 635, but admitted the statement as part of the res gestae. The statement was not prompted by any question from the officer. Rather, it was a spontaneous declaration made by the witness of his observation to the officer when confronted by the appellant.

“The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character.” Wilson v. State, 181 Md. 1, 3-4, 26 A. 2d 770. See also Stevens v. State, 232 Md. 33, 40, 192 A. 2d 73; Van v. State, 1 Md. App. 347, 352, 230 A. 2d 109. Here, the statement was contemporaneous with the commission of the crime and so connected with it as to illustrate its character.

However, assuming, without deciding, that the statement was improperly admitted, it was harmless error as the trial court had the direct testimony of the witness Howard, who testified to substantially the same thing. Harriday v. State, 238 Md. 75, 79, 207 A. 2d 629. We find no reversible error as to appellant’s first contention.

II

There is no real substance to appellant’s contention that the State failed to prove ownership of the premises broken as alleged in the indictment.

In Hackley v. State, 237 Md. 566, 207 A. 2d 475, the court, speaking through Judge Hammond (now Chief Judge Hammond), at p. 569 said:

“There is no real substance to the contention that ownership of the theater was not proven. Most, but not all, states require that the ownership of the building burglarized be stated in the indictment and proven so as to negative a right of entry by the accused and to establish identity. * * * It is generally held that the ownership alleged and shown need not be that of the legal title holder if another, not the accused, is in lawful possession of the building involved under a special property interest.”

The indictment alleged that the store was owned by French’s, Inc., a corporation. The State introduced testimony, through the witness Wimmer, that he was the owner of French’s, Inc., located at 304 W. Baltimore Street. Conceding that Mr. Wimmer could not be the technical owner of the corporation, the inference is clear that he was the owner of the business, either as owner of the majority of the stock or owner of all the stock in the corporation. It is apparent from the testimony that he had the right of occupancy and possession and the testimony was sufficient to establish ownership of the building in French’s, Inc., which, as its name implies, was a corporation.' Code (1957), Article 23, Sec. 5, Sub-sec. (a) (1). This was enough to show that the store building broken into by the appellant was not his and that he had no right to enter it without the permission of the lawful occupier, and enough to identify the building broken into and the personal property therein so as to protect appellant against a subsequent prosecution for the same offense, which is all that is required.

Ill

Appellant in his third and final contention challenges the sufficiency of the evidence under which he was found guilty of storehouse breaking with intent to steal goods over the value of $100.00. Code (1957), Article 27, Sec. 32. The evidence clearly supports appellant’s conviction for storehouse breaking. He was observed by the witness Howard at 2:00 a.m. in the morning on the fire escape landing adjacent to a second story window of the building owned and occupied by French’s, Inc., at 304 W. Baltimore Street. When asked by the witness what he was doing up there, he descended the fire escape a few steps and then dropped off to the ground where he shoved the witness off balance and then ran. He was apprehended by the police while fleeing from the scene, and when brought back was positively identified by the witness Howard as the man on the fire escape. Upon ascending the fire escape the officer found that the window adjacent to the landing had been pushed in to allow access into the building. This fact was confirmed by the proprietor of the building, Wimmer, who testified that when he left at 5 :30 p.m. on the evening before that the premises liad been locked and secured. He also testified that he had been on the second floor the previous day and had noticed nothing unusual about the window at that time. The appellant offered no explanation as to why he was on the fire escape next to the partially opened window.

An actual breaking may be made by unloosing, removing or displacing any covering or fastening of the premises, such as lifting a latch, drawing a bolt, raising an unfastened window, or pushing open a door kept closed by its own weight. We think the evidence supports a rational inference that appellant broke into the building by pushing in the second story window. Jones v. State, 2 Md. App. 356, 361, 234 A. 2d 625. In order to prove felonious intent under Section 32 of Article 27, Code (1957), it is not necessary to prove that any goods were taken. The actual intention at the time of the breaking is controlling, not whether any goods of value were stolen, and the intention may be inferred from the circumstances. O’Brien v. State, 1 Md. App. 94, 97, 227 A. 2d 362. The evidence disclosed that the building contained an inventory of from thirty to fifty thousand dollars.

Since the conviction of the appellant was supported by substantial evidence, we are unable to say that the verdict of the trial court was clearly erroneous, and we must affirm as to the first count of the indictment. Anglin v. State, 1 Md. App. 85, 94, 227 A. 2d 364; Sadler v. State, 1 Md. App. 383, 388, 230 A. 2d 372; Maryland Rule 1086.

We shall lastly consider appellant’s conviction under the fifth count of the indictment charging the offense of rogue and vagabond. As appellant was not apprehended having upon him an implement or offensive weapon as designated in the statute, his being deemed a rogue and vagabond is dependent upon his being found “in or upon any * * * storehouse * * * with intent to steal any goods * * Code (1957), Art. 27, Sec. 490. While the convictions under the first and fifth counts are under different statutes, the same facts gave rise to each conviction. In order to sustain each charge, two common elements must be proved, namely, the presence of the defendant in and upon the storehouse and the intent to steal. Under the first count, a breaking must be proved, which is not necessary to be proved under the fifth count. Here, the latter offense is a necessary ingredient of the former and necessarily involves the former. We conclude therefore that upon his conviction on the first count, the lessor offense charged in the fifth count was merged therein, and we must vacate the verdict and concurrent two year sentence on the fifth count. Chittum v. State, 1 Md. App. 205, 228 A. 2d 628; Manning v. State, 2 Md. App. 177, 233 A. 2d 821.

Judgment as to the first count affirmed. Judgment as to the fifth count vacated as merging with the first count.


author: Murphy, C. J.,

text:
    THOMAS WILLIS MYERS v. STATE OF MARYLAND
    [No. 154,
    September Term, 1967.]

      Decided April 3, 1968.

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

      Ralph C. Boyd for appellant.

      Edward S. Digges, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, Jr., State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellant, Thomas W. Myers, was convicted on January 25, 1967 of first degree murder by the court sitting without a jury and sentenced to life imprisonment in the Maryland Penitentiary. He contends on this appeal that the trial court erred in admitting his oral confession in evidence since it was obtained in violation of the principles enunciated in Miranda v. Arizona, 384 U. S. 436.

The evidence adduced at the trial established that on April 23, 1966, the body of Agnes Greb was discovered in a wooded section of Anne Arundel County by two young boys. The victim’s death was caused by wounds received from a .22 caliber shell. An investigation conducted by the Anne Arundel County Police revealed that appellant was with the deceased on the night of April 22 at the Halfway House. The investigation also revealed that the appellant owned a .22 caliber rifle and that laundry slips found near the victim’s body belonged to him. As a result of this investigation, appellant became the prime suspect.

On May 10, 1966 at approximately 6:00 a.m., Detective Gilbert Majerowicz and Sergeant Jerome Bozek, dressed in civilian clothes and operating from their police car, undertook to locate the appellant. At 7:00 a.m. that morning they observed him walking on the street. The officers approached him and called out, “Myers, Police, we want to talk to you.” The appellant hesitated briefly and then came over to the car and entered the back seat. Sergeant Bozek identified himself to the appellant as a police officer, displaying his badge. He then asked appellant if he had been to the Halfway House or White Gabels, two local taverns, to which he answered, “no.” Asked if he were sure, the appellant replied, “oh, yeh.” When further questioned as to whether he had ever given a woman a ride from the Halfway House, the appellant replied, “no,” but then added, “oh, you mean that woman I took to Annapolis?” The appellant further stated to the officers that he had taken a woman to Annapolis at her request and that from there he had gone to a Tittle Tavern shop. Throughout the period of this questioning, the police car was moving toward police headquarters. The appellant was physically shaking at this time, and Sergeant Bozek “decided to ask him a question for reaction.” Accordingly, he inquired of the appellant, “Tom, why did you kill that woman?” to which he replied, “I, killed her, this won’t get Nick in any trouble, will it?” (The “Nick” to whom appellant had reference was the owner of the Halfway House.) As they proceeded in the police car toward headquarters, appellant told the officers that the victim had attempted to blackmail him and that he had shot her several times with a rifle after which he hid her body and clothing.

The appellant was not informed by the officers prior to making his oral confession in the police car of his privilege against self-incrimination and right of counsel, as postulated by the Miranda decision. After he had orally related the details of the crime to the officers while in the moving police vehicle, the appellant took them to the scene of the crime, after which he was taken to police headquarters, where a written confession was taken from him.

At the trial the appellant’s motion to suppress the written confession was granted. The court denied appellant’s motion to suppress the oral confession, it being of the opinion that appellant was not under arrest, but only accosted, at the time he made his oral confession in the police car and that, consequently, the giving of Miranda warnings was not a prerequisite to the admission of the oral statement.

In Miranda, it was held at page 444 that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Since the State failed to demonstrate the use of any “procedural safeguards” prior to the obtaining of appellant’s oral confession, the issue for determination is whether the statement was the product of “custodial interrogation” within the meaning of Miranda. “Custodial interrogation” was defined in Miranda as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.” 384 U. S. at page 444.

We considered the reach of the term “custodial interrogation” in Gaudio v. State, 1 Md. App. 455, 468, and there noted that the evils with which the Miranda court was primarily concerned were: (1) the holding of a defendant incommunicado in an isolated setting; (2) sweeping him from familiar surroundings into police custody; (3) surrounding him with antagonistic forces; and (4) subjecting him to techniques of persuasion. In People v. Hazel, 60 Cal. Rptr. 437, the California District Court of Appeals expressed its view of when custody begins for purposes of applying Miranda principles, as follows: (pp. 440-441)

“* * * [C]ustody occurs if a suspect is led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority. * * * [T]he custody requirement of Miranda does not depend on the subjective intent of the law enforcement officer-interrogator but upon whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. * * *”

This view of custodial interrogation was recently adopted by the Court of Appeals of New York in People v. Rodney P., 233 N. E. 2d 255, 286 N. Y. S. 2d 225, the court there noting that the purpose of the Miranda warnings “is to protect the individual’s freedom of choice—to answer or not answer—in Situations which are inherently coercive. * * *” 286 N. Y. S. 2d at page 231. The court there concluded: (p. 234)

“* * * since, as a practical matter, a person’s freedom is restrained or it is not, and he either feels free or does not, we believe that, in prefacing the word ‘restraint’ with the adjective ‘significant’, the Supreme Court intended that the warnings be given when the questioning takes place under circumstances which are likely to affect substantially the individual’s ‘will to resist and compel him to speak where he would not otherwise do so freely.’ ”

While Miranda safeguards may not be applicable to a confession gleaned from a suspect merely accosted by the police on a public street, Morgan v. State, 2 Md. App. 440, or a suspect questioned in his own home under a factual situation such as was present in Duffy v. State, 243 Md. 425, we hold—under the circumstances of this case—that the questioning of the appellant by the police officers in their police vehicle constituted a “custodial interrogation” within the ambit of the Miranda decision. As heretofore indicated, the appellant was the prime suspect in a murder case' and the police had undertaken to find him. Once located, he was suddenly taken from the public street, and placed in a police car with two officers who interrogated him about the crime as the car moved toward police headquarters. That appellant' was not free to leave the officers is wholly evident from the record, and we think “the atmosphere” thus created was such as carried “its own badge of intimidation.” See Miranda at page 457. We conclude that appellant’s interrogation constituted “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way,” squarely within Miranda’s meaning, and consequently we hold that the lower court erred in admitting appellant’s oral confession in evidence against him.

Judgment reversed; case remanded for a new trial.

      . A custodial interrogation cannot be initiated under Miranda until the accused is informed, in substance, that he has a right to remain silent, that anything he says can be used against him in court, that he has the right to consult with a lawyer and to have him present during interrogation, and that if he is indigent a lawyer will be appointed to represent him. Questioning may then proceed if the person to be interrogated understands the import of these procedural safeguards, and effectively waives them. See Johnny Mack Brown v. State, 3 Md. App. 313.

      . See also State v. Intogna, 419 P. 2d 59 (Ariz.).