text:
    RONALD WAYNE a/k/a RONALD ELMER THOMAS, HENRY DORSEY a/k/a HENRY THEODORE WHITE, JR., and WILLIAM JACKSON a/k/a JAMES ALEXANDER CONNEY, JR. v. STATE OF MARYLAND
    [No. 330,
    September Term, 1967.]

      Decided June 21, 1968.

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

      Leonard U. Wilson, J. Albert Roney, and Harry J. Goodrich for appellants.

      H. Edgar Lentz, Assistant Attorney General with whom were Erancis B. Burch, Attorney General, Thomas N. Biddison, Jr., Assistant 'Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Julius A. Jodlbauer, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellants Wayne, Dorsey, and Jackson filed petitions on October 6, 1967 in the Circuit Court for Cecil County, pursuant to Maryland Rule 709, waiving grand jury action and seeking immediate trials. Criminal informations were then promptly filed [Numbers 1726, 1727 and 1728] charging appellants jointly under three counts: larceny over $100.00; larceny under $100.00'; and receiving stolen property. On October 9, 1967 appellants appeared before Judge Edward D. E. Rollins, for arraignment, at which time, without counsel, and after having been advised of various rights, each pleaded guilty to the first count — larceny over $100.00. The State confessed pleas of not guilty to the remaining counts. Each appellant received a five-year sentence to be served under the jurisdiction of the Department of Correction.

On this appeal each appellant contends that he was denied his right to counsel as guaranteed in the Federal Constitution and by Maryland Rule 719.

The record discloses that all three appellants were simultaneously present before Judge Rollins at the arraignment; that Judge Rollins read the substance of the criminal informations to them; and thereafter proceeded to question each appellant separately, but in the presence of each other, as to the matter of counsel and as to the voluntariness of their respective guilty pleas.

To the court’s questions, appellant Wayne responded that he did not have an attorney; that he was unable to employ an attorney; and that he did not think it necessary for the court to appoint one for him. After pleading guilty to the first count, the court requested the State to explain the crimes involved in the other counts and their applicable punishments. Thereafter, the State confessed a plea of not guilty to the second and third counts. The right to a court or a jury trial and the right to confront and cross-examine witnesses were explained to appellant Wayne. He was then asked by the court, and gave an affirmative response to the question of whether his plea of guilty to the first count was made freely, voluntarily, without threat or fear to himself or anyone associated with him, without promise of a lesser sentence, probation, reward, immunity or other inducements. The judge concluded by stating: “You are pleading guilty because in truth and in fact you are guilty and for no other reason, is that correct?” Appellant responded: “Yes Sir. Your Honor, I am guilty because I was insane because that was the only way I could obtain money to obtain drugs.” The court then accepted the guilty plea and rendered its judgment of conviction.

The court next proceeded with appellant Dorsey and, after it was established that he heard the proceedings in relation to Ronald Wayne, Dorsey stated that he too did not have an attorney, nor was he able to employ counsel. The court then asked, “Do you understand that the court will appoint an attorney to assist you in your defense,” to which Dorsey replied, “Yes Sir.” He was then informed of his right to a trial before a jury or before the court, after which he pleaded guilty to the first count, with the State confessing a plea of not guilty to the second and third counts. The court then examined him with respect to the voluntary nature of his guilty plea, and upon being satisfied that the plea was voluntary, it accepted the plea and entered a judgment of conviction thereon.

Appellant Jackson was arraigned next. He stated that he did not have an attorney; that he was unable to employ an attorney ; that he did not wish the court to appoint him counsel; that he understood his rights as had been explained to his co-defendants; that he had no questions with reference to a trial; that he understood the penalties involved in each count; and that he waived the reading of the “indictment.” He then entered a plea of guilty to the first count, following which the State again confessed not guilty pleas to the other counts. Satisfied that the plea was made freely and voluntarily, it was accepted by the court and a judgment of conviction was then entered.

The absolute constitutional right of an indigent accused in a serious State criminal prosecution to have counsel appointed for his defense is, of course, now settled beyond question. Gideon v. Wainwright, 372 U. S. 335; Manning v. State, 237 Md. 349; Montgomery v. Warden, 1 Md. App. 30. In implementation of the constitutional right to counsel, Maryland Rule 719 provides, insofar as here pertinent, “If at any stage of the proceedings, the accused appears in court without counsel, the court shall advise him of his right to counsel”; and that “Unless the accused elects to proceed without counsel or is financially able to obtain counsel” the court shall assign counsel to represent him if the offense charged is one where, as here, the maximum punishment could be imprisonment for a period of six months or more. These requirements of Maryland Rule 719 are mandatory, and must be complied with irrespective of the type of plea entered, or the lack of an affirmative showing of prejudice to the accused. Taylor v. State, 230 Md. 1. Nothing in Gideon or in Maryland Rule 719, however, changes the long standing rule that an accused has a right to proceed without counsel following a knowing and intelligent waiver of his right to counsel. Cummings v. Warden, 243 Md. 702; Ware v. State, 235 Md. 131; Montgomery v. Warden, supra. The classic definition of waiver of a federal constitutional right is that contained in Johnson v. Zerbst, 304 U. S. 458, 464, i.e., “an intentional relinquishment or abandonment of a known right or privilege.” In Manning v. State, supra, the Maryland Court of Appeals gave explicit recognition to the holding of the Supreme Court in Carnley v. Cochran, 369 U. S. 506, 516, viz.:

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

Appellant Ronald Wayne

Wayne’s contention that he was denied his constitutional right to counsel is based primarily upon the fact that when asked by the court whether he was pleading guilty “because in truth and in fact you are guilty and for no other reason, is that correct,” he responded:

“Yes Sir. Your honor, I am guilty because I was insane because that was the only way I could obtain money to obtain drugs.”

Wayne urges that in light of this response, it should have been evident to the court that he had a defense to the charge, namely that he was insane — a defense which he could neither properly articulate nor benefit from in the absence of counsel. It is against such a background that Wayne maintains that he did not intelligently and knowingly waive his constitutional right to counsel.

The State contends that Wayne’s refusal to accept the court’s offer to appoint counsel, his desire for a speedy trial by waiving grand jury action, his cognizance of the charges pending against him before deciding to proceed without counsel, his age (23 years), and his total familiarity with criminal proceedings by reason of four prior convictions for larceny and one each for burglary and possessing barbiturates, clearly constituted circumstances showing a knowing and intelligent waiver of his, right to counsel.

A plea of guilty may, of course, be entered under circumstances showing a voluntary desire on the part of the accused to do so, with an intelligent understanding of the nature of the offense to which he is pleading guilty and the possible consequences of such a plea; and the acceptance of a guilty plea entered under such circumstances will not be set aside on appeal. James v. State, 242 Md. 424; Gleaton v. State, 235 Md. 271; Cooper v. State, 233 Md. 248; Blake v. State, 2 Md. App. 492. On the other hand, the voluntary nature of a defendant’s guilty plea must be clearly established prior to the court’s acceptance of it, James v. Slate, supra, and it must be unconditional, since as stated in Roberts v. Warden, 221 Md. 576, at page 581:

“* * * if the defendant attaches any condition or qualification to such a plea, the trial court should direct the entry of a plea of not guilty; but a plea of guilty freely and voluntarily made by a sane person, when accepted and recorded, is a conviction of the highest order.”

To like effect, see Gleaton v. State, supra.

We think appellant’s guilty plea, in the final analysis, was not unconditional, but rather was tantamount to pleading guilty by reason of insanity. Whether the basis of the plea, as asserted by Wayne, could ever suffice to establish a defense of insanity under Section 9 of Article 59 of the Annotated Code of Maryland (1968 Repl. Vol.), is not an issue before us. But neither are we in a position to hold that appellant’s statement relative to his insanity amounted to nothing more than a statement made for the purpose of gaining the court’s sympathy and nmderstanding, and hence a light sentence. While it would not appear under the circumstances that we could hold that appellant’s waiver of counsel was knowing and intelligent under Johnson v. Zerbst, supra, and Carnley v. Cochran, supra, we prefer to rest our holding squarely on the ground that appellant’s plea of guilty was a conditional one and, as such, should not have been accepted by the court, at least without further .-specific inquiry having been made into the basis for appellant’s statement so as to enable the court to more properly assess and evaluate the real and true basis for Wayne’s statement.

Appellant Henry Dorsey

Dorsey contends that the court did not inquire of him whether ¡he elected to proceed without counsel as positively required by Maryland Rule 719. He asserts that at no time did he agree to ■proceed without counsel and that it is not permissible for us to presume waiver from a silent record.

It is clear that Dorsey was present when, prior to the time ¡he entered his guilty plea, the court offered counsel to Wayne. And we are satisfied from the record that Dorsey understood the court’s statement, “Do you understand that the court will ■appoint an attorney to assist you in your defense?” Equally ■clear is the fact that at no time thereafter did appellant express ■any desire to have counsel appointed for him. But the record •does not show any express election by Dorsey to proceed with-cut counsel. In other words, the court made no flat inquiry of him as to whether he wanted counsel appointed to represent him and consequently Dorsey was not directly called upon to make an election to proceed without counsel.

In Hill v. State, 218 Md. 120, where there was no showing of any election made by the accused to proceed without counsel, the court held that it could not infer waiver of counsel from the defendant’s failure to ask for counsel. We cannot, of course, presume waiver on the basis of a silent record, Carnley v. Cochran, supra, nor can we find under the circumstances of this case that Dorsey intentionally relinquished and abandoned his right to counsel, Johnson v. Zerbst, supra. As the latter case also admonishes courts to “indulge every reasonable presumption against waiver of fundamental constitutional rights * * * [and] not presume acquiescence in the loss of fundamental rights,” we hold, on the record before us, that Dorsey did not elect to proceed without counsel as required by Maryland Rule 719, and did not waive his constitutional right to counsel in this case. Cf. Schuette v. State, 228 Md. 340; Gopshes v. State, 1 Md. App. 396. While there may be circumstances where the conduct of the accused, after being explicitly offered counsel, is so plain and clear as implicitly to demonstrate a knowing and intelligent waiver of the right to counsel — an election to proceed without counsel — we hold that Dorsey’s is not such a case.

Appellant William Jackson

We find no merit in appellant Jackson’s contention that he was denied his constitutional right to counsel.

Jackson informed the court that he did not have an attorney and that he could not afford one. He expressly stated, however, that he did not want the court to appoint counsel for him. As previously indicated, Jackson stated that he understood his rights as explained to his co-defendants; that he had no questions in connection with the trial; that he understood the penalties in each count; that he wished to waive the reading of the “indictment,” and that he desired to enter a plea of guilty to the first count. Considering these circumstances in light of his age (25 years) and familiarity with criminal procedure (he having been previously convicted of nine cases of larceny and two cases of burglary), we hold that Jackson effectively waived his right to counsel and elected to proceed without counsel. See Cummings v. State, supra; Ware v. State, supra; Montgomery v. Warden, supra.

As to Ronald Wayne, a/k/a Ronald Rimer Thomas (Criminal Information jf 1726) :

Judgment reversed; case remanded for a new trial.

As to Henry Dorsey, a/k/a Henry Theodore White, Jr. (Criminal Information \ 1727) :

Judgment reversed; case remanded for a new trial.

As to William Jackson, a/k/a James Alexander Conney, Jr. (Criminal Information % 1728):

Judgment affirmed.


source: Caselaw Access Project

author: Murphy, C. J.,

license: Public Domain

text:
    CLAYBURN PARKS v. STATE OF MARYLAND
    [No. 331,
    September Term, 1967.]

      Decided June 24, 1968.

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

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

      David T. Mason, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald Needle, Assistant Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Robert W. Baker, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted by the court sitting without a jury under two separate indictments charging (1) grand larceny on July 6, 1967 of the property of Marie Matusky, consisting of certain clothing, and (2) robbery of Leonard Nunnally with a deadly weapon on the same date. He was sentenced to seven years under the jurisdiction of the Department of Correction on the robbery conviction and eighteen months concurrently on the larceny conviction. He contends on this appeal (a) as to the grand larceny conviction, that he was illegally arrested and that items seized from him as a result of such illegal arrest were improperly admitted into evidence at his trial, and (b) as to the offense of robbery with a deadly weapon, that the prosecuting witness’s identification of him as the robber was inadmissible.

The pertinent facts pertaining to the conviction for larceny-are these: At approximately 2:00 a.m., on July 6, 1967, Officers John Koch and James Dowdy, while cruising in their police car in Baltimore City, observed two men, later identified as the appellant and Jerry Brown, walking on South Charles Street, each carrying a bundle of clothing. As the officers approached the two men in their car, Brown threw his bundle on the pavement and both men continued walking. The officers emerged' from their car and questioned the men, neither of whom gave any explanation as to “where they got the clothes.” The officers then arrested the two men for littering. At the trial, it was admitted that only Brown littered the street with his bundle of clothing and that appellant at no time discarded his bundle. There was an objection to the admissibility of the clothing taken from the appellant at the time of the arrest. The court admitted the evidence on the ground that appellant’s arrest for littering was lawful, and that consequently the seizure of the clothing incident thereto was also lawful.

Although it is not clear from the record, it would appear that appellant’s arrest for “littering” was based upon Section 468 of Article 27 of the Maryland Code (1967 Repl. Vol., 1967 Supp.), which makes it a misdemeanor for any person, without consent, to throw or deposit “any trash, junk or other refuse upon the land or property of another,” including “any public property, * * Assuming, without deciding, that disposing of a bundle of clothing on a public street or sidewalk would constitute a violation of this statute, and hence in this case would comprise a misdemeanor committed in the officer’s presence, for which he might make an arrest without a warrant, we think it clear that the offense was committed, not by the appellant, but by Brown. Under these circumstances, and there being no evidence upon which to conclude that appellant shared a common criminal design with Brown, nor any contention that the arrest was based upon probable cause to believe that appellant had committed a felony, we think the arrest was clearly unlawful; and the introduction of evidence at the trial relating to the bundle of clothing seized from appellant at the time of his arrest was clearly improper and constitutes reversible error. See Randolph v. State, 1 Md. App. 441. Cf. Ervin v. State, 4 Md. App. 42; Norfolk v. State, 4 Md. App. 52.

The pertinent facts pertaining to appellant’s conviction for robbery with a deadly weapon are these: After appellant and Brown were arrested, they were promptly taken to the police station, where Leonard Nunnally, a cab driver who had been robbed earlier that evening, was in the process of making a report to the police. He identified appellant and Brown as the two men who had robbed him at the point of an empty beer bottle at approximately 1:30 a.m. the same morning. Nunnally also identified appellant at the trial as the robber.

Appellant contends on the authority of Wong Sun v. United, States, 371 U. S. 471, that Nunnally’s identification of him was inadmissible as it was the product of an illegal arrest. The contention is without merit. It has been held repeatedly that the doctrine of Wong Sun was not intended to, and does not, control prosecutions in State courts and that the testimony as to the identification of an unlawfully arrested accused by the victim is not inadmissible as being the fruit of an illegal arrest. See Tender v. State, 2 Md. App. 692; Nadolski v. State, 1 Md. App. 304.

As to indictment 3524 (grand larceny): Judgment reversed; case remanded for a new trial.

As to indictment 3523 (robbery with a deadly weapon):

Judgrn~nt affirmed.


author: Per Curiam.

text:
    THOMAS BRYSON BEVER v. STATE OF MARYLAND
    [No. 347,
    September Term, 1967.]

      Decided June 24, 1968.

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

      Fred W. Rickerson for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney
      General, Arthur A. Marshall, Jr., Stale’s Attorney for Prince George’s County, and Benjamin R. Wolman, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.

      . The trial concluded at 7:31 p.m.

   Per Curiam.

The appellant was found guilty by a jury in the Circuit Court for Prince George’s County of daytime housebreaking with intent to commit grand larceny and grand larceny and sentenced generally to imprisonment for a term of 4 years.

I

The case came on for trial at 3 :24 p.m. Out of the presence of the jury panel, counsel for the appellant requested a continuance because “the jury panel is sitting on its last day. They have been sitting here all day in court with nothing to do except hang around. I am sure that every one of these jurors, if they are like I am, at this hour of the day are pretty well teed off and pretty well fed up with the fact that they have been sitting here all day doing nothing, and they are in a hurry to get home.” He also alleged that he felt it impaired his ability as counsel to commence trial at that hour and suggested that the ability of the trial judge may also be impaired. He urged that “to start at this hour I think very definitely is prejudicial to the defendant’s right to a fair and impartial jury trial.” The court denied the request for a continuance, noting that the case came in for trial “at that hour solely because of the calendar of the court” and through no fault of the State or the appellant. It found no reason not to start the trial, stating that there was “an amount of time to ;go on the regular court day.” It said that it would submit a voir dire question to all prospective jurors with respect to the matter if requested. At the request of defense counsel the court said to the jury panel:

“Members of the jury panel, I am going to ask you a question and I want — I don’t want any embarrassment. I want a true answer and I don’t want anyone to hesitate in the slightest if you feel that this would in some way affect your decision in the case. It it now ten minutes of four and we are about to start a case. I don’t know how long the case will last. It may carry beyond 5 o’clock. It may go beyond six. Possibly it might go even later. Do any of you have commitments tonight or are any of you in such a state of fatigue or tiredness that you feel that this condition of your plans for the evening or your state of alertness or tiredness, as it may be, would in any way be prejudicial in reaching a decision in the case ?”

No prospective juror indicated that those circumstances existed with respect to him so as to be prejudicial in any way to his reaching a decision in the case.

Appellant contends on appeal that the lower court abused its discretion in refusing to continue the case and in support of the contention states that the appellant “did not receive a fair trial because of the late hour of beginning trial, evidenced by the fact that the jury deliberated only seventeen minutes, and by the comments of the trial court in expediting the trial.” We find no substance in the reasons advanced to support the contention. It cannot be presumed here from the length of the jury’s deliberation that they did not properly fulfill their sworn duty. Nor do we find from the record that the court in any way was “rushing the trial along,” as alleged by the appellant. He quotes eight comments of the court as illustrative of this allegation, taken out of their context and scattered throughout some 104 pages of the transcript of the proceedings. None of the remarks now referred to were objected to at the time they were made. At no time during the trial did the appellant assert that any conduct of the trial court “resulted in permeating the proceedings with an aura of haste” or claim that he was prevented or discouraged from presenting a full defense. The cited remarks of the trial court were no more than a reasonable attempt to maintain an orderly expedition of the trial and were not in any respect improper or prejudicial to the appellant. The allowance or denial of a continuance, as the appellant recognizes, is within the sound discretion of the trial court. Johnson v. State, 237 Md. 283, 288; Bright v. State, 1 Md. App. 657, 661. We have no difficulty in finding that the trial court did not abuse its discretion and that the appellant was not denied a fair trial by the case being then tried.

II

In examining the jury on their voir dire the court asked if anyone on the panel or member of their family had been a member of a police or law enforcement agency. One prospective juror said that he had been a police officer in the District of Columbia and had been retired for three and a half years. After the voir dire examination, out of the presence of the jury, the court struck four jurors for cause. At this point defense counsel moved that the retired police officer be stricken, stating, “I never heard of a retired police officer serving on a jury case.” The court denied the motion, but at counsel’s request asked the following question: “In view of your past experience in the police department * * * would this in any way prevent you from rendering a fair and impartial verdict in a criminal case based upon the evidence that you heard, or would you be free of any sort of favorable prejudice towards the police, a police agency? * * * It would not affect you in any way?” The juror replied, “No, sir.”

On appeal the appellant does not contend that the juror was not competent to serve or that the fact that he had been a police officer was a sufficient basis for challenging him for cause. See Borman v. State, 1 Md. App. 276. He urges, however, that his counsel was exercising a peremptory challenge, the denial of which was error as he had not made the four peremptory challenges permitted him. Md. Rules, 746 a 1. We think it clear from the record that defense counsel was not attempting to exercise a peremptory challenge but a challenge for cause which was properly denied. We think it also clear from the record that both the trial court and defense counsel considered the challenge as one for cause and that it was on this basis that the court made its ruling. The privilege of challenging peremptorily is a right to reject a juror without the necessity of first showing cause. Parker v. State, 227 Md. 468. The appellant had peremptory challenges available to him and could have exercised them as a matter of right until the jury was sworn. Md. Rules, 746 c. He did not do so and cannot now complain.

Ill

At the trial, defense counsel objected to a State’s witness testifying that he had picked out the defendant’s picture from a stack of photographs shown him by the police. Out of the hearing of the jury he moved for a mistrial on the ground that by the testimony the jury knew that the police had a photograph of the appellant and “there is but one logical conclusion the jury can draw” and that is that the appellant had a prior police record since his photograph was in the possession of the police. The trial court denied the motion.

Testimony by a witness that he was able to identify the accused from police photographs is admissible. Judy v. State, 218 Md. 168; Basoff v. State, 208 Md. 643. See Austin v. State, 3 Md. App. 231. We do not agree that the mere fact that an accused was identified from photographs shown to a witness by the police results in a conclusion by the jury that the accused had a criminal record. The challenged testimony as adduced was properly admissible and it was not error for the court to refuse to declare a mistrial. Further, the appellant elected to testify in his own behalf and on direct examination admitted to having been previously convicted of breaking and entering and on cross-examination to other convictions. We see no prejudice to him.

IV

The appellant also contends that the evidence was not sufficient to sustain the convictions and the court erred in denying his motions for judgment of acquittal. The question of the denial of the motion for judgment of acquittal made at the close of the evidence offered by the State is not before us as the appellant withdrew it by offering evidence. Md. Rule, 755 b. The review on appeal of the sufficiency of the evidence was preserved by a renewal oí the motion at the close of all the evidence.

On 26 April 1966 Walter A. Bonfield testified that he left his third floor apartment, in which he lived alone, about 8:00 a.m. The door to his apartment had an “automatic lock” and when he left he checked the door to make sure it was locked. He returned about 6:15 p.m. and as he went “up the landing to the level” on which he lived, he noticed that his apartment door was open. He found that a television set, purchased two weeks before for $154, his raincoat valued at $25, his wedding ring valued in excess of $50 and a transistor radio valued at $25 were missing. He called the police “to report the robbery.” He did not know the appellant and had not given him permission to enter his apartment. The missing items were not recovered.

Dennis F. English testified that on 26 April 1966 he lived in the same apartment building in which was Bonfield’s apartment and was home all that day. In the early part of the afternoon, between 2:00 and 3 :00 p.m., he was working on his car in the parking lot directly in front of the apartment building. Two men came out of the apartment entranceway. One was carrying a white, plastic case, portable television set and the other a radio. They entered an automobile on the parking lot and drove away. He “took down the license number” as they pulled away. Later that evening when he and his wife returned from visiting relatives in Virginia, he observed a police car in front of the apartment building and a police officer by the window in a top floor apartment. He went to that apartment and said to the police, “If there is a TV and a radio missing from one of the apartments, I have the license number and the description of the men that took it.” He gave the officer the license number of the car in which the two men drove away, a description of the vehicle and a description of the men. Later he picked out the appellant’s photograph from a group of photographs shown him by the police and at the trial identified the appellant as one of the men he had seen leaving the apartment building.

The appellant was arrested on a warrant obtained after English had identified him from the photographs and a listing had been obtained from the Department of Motor Vehicles in Washington on a Metropolitan, D. C. tag number given the police by English. The car was listed in the name of the appellant’s wife. It was brought out in cross-examination of Detective Richard Salter of the Prince George’s County Police that another apartment in the building had been broken into that day and a radio taken.

The appellant testified that he was “quite sure” he was at work the day the crime was committed. He drove a truck delivering auto parts. He was arrested on 3 June. He denied breaking into the apartment, stealing the goods, or receiving the goods. He said that he had made no deliveries on 26 April to the apartment building and did not even know where the building was located. He had previously been convicted for breaking and entering. On cross-examination he said that he had also been convicted of larceny and assault and battery. On 26 April 1966 he was working for Wright’s Auto Parts, “as well as I can remember,” and had worked there for three or four months. He thought he began work at 8:00 A.M. and finished at 4:30 P.M. He did not know any place he went on the day in question.

The appellant’s wife testified that she and her husband had only one car listed in her name. On 26 April 1966 she saw her husband in the morning and then she drove in the car to the National Institute of Health, where she then worked, parked it and after work drove home in it. She believed that the appellant at that time worked for W & W Roofing Company.

It has been consistently held that in order to overturn a judgment entered on a verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or rational inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Hott v. State, 3 Md. App. 298, 304; Agresti v. State, 2 Md. App. 278, 284. We think the jury could properly find from the evidence that there had been a breaking of Bonfield’s dwelling house in the daytime with intent to steal and that goods to the value of $100 or more had been stolen. The evidence was clear that the door of Bonfield’s apartment was locked when he left and open when he returned, that it had been opened during the daytime, that he lived alone, that his personal goods were missing when he returned and that the goods were of a value of $100 or more. The appellant urges that the market value of the goods at the time they were taken was not proved. The undisputed evidence was that the television set was purchased two weeks before at a price of $154. We think this and the testimony of the owner as to the value of the other goods stolen was sufficient to make the issue of value a question for the jury. Gazaille v. State, 2 Md. App. 462, 464-465; Scott v. State, 1 Md. App. 481, 494; Hill v. State, 237 Md. 630: We think the evidence was also sufficient for the jury to find that the appellant was the criminal agent. He was positively identified as one of two men coming out of the apartment building carrying a television set and a radio. Although there was testimony that another apartment had been broken into, there was. no evidence that a television set had been taken therefrom. It was not essential that the evidence show conclusively that the appellant rather than the other man was carrying the television set. The jury could properly find that the crime was-committed as a joint enterprise and both were principals. Possession of recently stolen goods supports a credible inference that the possessor was the thief, Frey v. State, 3 Md. App. 38; McGlothlin v. State, 1 Md. App. 256, and, coupled with evidence of a breaking, that he was one who performed the breaking. Allen v. State, 2 Md. App. 740; Chittum v. State, 1 Md. App. 205. The weight of the evidence is a matter for the trier of facts. Carroll v. State, 3 Md. App. 50; Hutchinson v. State, 1 Md. App. 362. We find that there was legally sufficient evidence or rational inferences drawable therefrom on which the jury could find the appellant guilty beyond a reasonable doubt and that the lower court did not err in denying the motion for judgment of acquittal. See Poff v. State, 3 Md. App. 289.

Judgments affirmed.

      . Md. Code (1967 Repl. Vol.) Art. 27, § 30 (b) proscribes the breaking of “a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom.” The first count of the indictment charged that the appellant “did break (the dwelling house) with intent to commit a certain felony there and therein, to wit: with intent then and there certain goods and chattels in the said dwelling house then and there being found, then and there feloniously to steal, take and carry away.” Thus, although the statute includes a breaking with intent to commit the misdemeanor of petit larceny, Md. Code, supra, Art. 27, § 341, the appellant was charged with breaking with the intent to commit a felony — grand larceny, § 340.

      . Reagan v. State, 2 Md. App. 262 is readily distinguishable from the instant case. In Reagan the record was devoid of any evidence of a breaking. Nor was the evidence with regard to the articles seen in the possession of Reagan sufficient to identify them as even being the types of articles stolen — that is whether a light brown or beige case he was seen carrying was a sewing machine or a stereo and whether a white appliance was a radio or a can opener or some other object. In the instant case it is clear that there was a breaking, that a television set was taken and that a television set was in the possession of men seen leaving the scene of the breaking. We think it also clear that the testimony of the owner here was sufficient to support an inference that the articles he found to be missing had been wrongfully and fraudulently taken by means of the breaking. We note that he immediately called the police to report the “robbery” of his premises.


text:
    HOWARD MONROE JONES v. STATE OF MARYLAND
    [No. 352,
    September Term, 1967.]

      Decided June 24, 1968.

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

      Jack B. Richards for appellant.

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

The appellant was found guilty at a court trial in the Criminal Court of Baltimore of two offenses of assault and battery and given consecutive sentences of imprisonment for three years on each offense.

About 8:00 P.M. on 1 February 1967 Edna N. Lindley had gone to the store and was walking on Hampden Avenue near 28th Street in Baltimore City to return home when the appellant approached her. As he walked by her he “made a turn and grabbed me by the back of my neck. When he grabbed me, I kicked him, I hit him in the stomach and I run and he was exposed and everything.” She fought herself free. She said she meant by “exposed” that “his sexual organ was out, was exposed * * * and his fly was down.” She yelled and sought help in a “corner bar” but “by the time they came out looking for him he was gone.” The incident was reported to the police.

About 9:00 P.M. the same night Mrs. William Blucher, nee Debra Sadler, had walked her father to the bus stop and on her way home passed a church at the corner of 30th and Harrington Streets. She saw a friend in the church and she stopped to talk to him, leaning over a small wall surrounding the church property. The appellant came up “and leaned himself * * * pushed himself against me * * * he was exposed * * * his pants were undone.” Her friend yelled and “the man started to walk away.” Her friend went after him but she called him back and they “got the police.” No evidence was presented on behalf of the appellant, although without taking the stand he stated to the court that after his arrest he heard police officers, in obscene terms, say that they would assure that “he won’t get out.”

The appellant contends on appeal from the judgments that the court erred in denying his motions for judgment of acquittal, alleging that the evidence was not sufficient to sustain the convictions.

“Any unlawful injury whatsoever, however slight, actually done to the person of another, directly or indirectly, in an angry, revengeful, rude or insolent manner, is a battery. Every battery includes an assault, so on an indictment for assault and battery one may be convicted of an assault only. * * * It is not necessary, however, that the injury shall be serious. The least touching of another in anger, or in a rude or insolent manner, is enough, as by spitting upon him, or in any way touching him with anger, or with rudeness, even with the open hand, or getting him out of the way, or cutting his clothes while they are on his person. * * * An assault and battery may be committed by taking indecent liberties with a girl or woman without her consent.” Clark and Marshall, Law of Crimes, 6th Ed., § 10.19, p. 654.

Considering the evidence in the instant case within the context of this definition of assault and battery the corpus delicti of each offense was proved and the criminal agency of the appellant clearly established by the positive identification of him by each of the victims. The motions for judgment of acquittal were properly denied. We cannot say that the judgments of the lower court on the evidence were clearly erroneous. Md. Rule, 1086.

Judgments affirmed.

      . The general rule is that “when a man is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses-in his life time is wholly excluded.” Wentz v. State, 159 Md. 161, 164. However, we think that the court could properly have considered the evidence of the assault on Edna W. Rindley in its-finding that the appellant was guilty of assaulting Debra Sadler as coming within the exceptions to the general rule. The assault on Miss Dindley occurred shortly before that on Miss Sadler and the circumstances of the former assault tended to establish, with regard to the latter assault: (1) motive, (3) intent, (3) absence of mistake or accident, (4) a common plan or scheme embracing the commission of two crimes so related to each other that proof of one tends to establish the other, and, (5) the identity of the offender. See Gorski v. State, 1 Md. App. 200, 202.


text:
    ANGUS LINWOOD CAMPBELL v. STATE OF MARYLAND
    [No. 363,
    September Term, 1967.]

      Decided June 24, 1968.

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

      George A. Shehan for appellant.

      Thomas N. Biddison, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and A. Gordon Boone, Jr., Assistant State’s Attorney for Baltimore County, •on the brief, for appellee.
   Per Curiam.

Appellant Campbell was convicted of armed robbery by the court sitting without a jury and sentenced to ten years under the jurisdiction of the Department of Correction. He contends on this appeal that an oral incriminatory statement made by him shortly after his arrest was introduced in evidence at his trial in violation of Miranda v. Arizona, 384 U. S. 436, and constituted reversible error.

The pertinent facts are these: Appellant was arrested immediately following the robbery of an ice cream store by a police officer who had observed the crime in commission. The arresting officer told appellant that he “had a right to remain silent and didn’t have to say anything until [he] obtained counsel.” Within minutes after the arrest, and while appellant was still on the street, Sergeant Raymond Donovan of the Baltimore County Police arrived on the scene and undertook to give appellant the fourfold warning required by the Miranda decision. While he was placing appellant into his police vehicle, appellant asked “How much time can I get for this,” to which the Sergeant responded, “For what,” following which appellant said “For robbing that lady in the store.” At the trial, appellant’s incriminating statement was admitted into evidence over his objection.

Appellant contends that his rights under Miranda were violated in that he was not given the requisite warnings, and that in any event when he made the incriminatory statement, he had not at that time waived his right to counsel or to remain silent. The State contends that the statement was admissible because appellant was given all the required Miranda warnings, and that appellant impliedly waived his right to remain silent and to counsel. The State further contends that the statement in question cannot be deemed as within the purview of the Miranda decision, since it was volunteered and not the result of a custodial interrogation.

On the basis of the record before us, we need not determine whether appellant was given his constitutional warnings prior to the time he made the incriminating statement, or whether, if the warnings had been given, he waived his right to remain silent and to have counsel. We think it plain that while appellant was in custody when he made the statement in question, it was not made in response to an interrogation within the meaning of Miranda. It appears to us that the police officer merely-responded to a question asked of him by the appellant, and that appellant’s further statement made in response to the officer’s question can in no event be considered as resulting from an interrogation within the rationale and meaning of the Miranda decision. See Myers v. State, 3 Md. App. 534; Duckett v. State, 3 Md. App. 563; Carwell v. State, 2 Md. App. 45; Gaudio v. State, 1 Md. App. 455.

Judgment affirmed.


author: Anderson, J.,

text:
    JOHN MARSHALL HARTLEY v. STATE OF MARYLAND
    [No. 27,

    September Term, 1967.]

      Decided July 1, 1968.

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

      G. Den-mead LeViness for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F- Moylan, Jr., State’s Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

In March of 1961, appellant, John Marshall Hartley, was jointly indicted with his wife under five indictments charging them with armed robbery and allied counts. On April 28, 1961, appellant pleaded guilty before Judge Joseph L. Carter in the Criminal Court of Baltimore under each of the first counts of Indictments Nos. 991 through 995, charging armed robbery of several loan offices. He was sentenced to a term of twenty years imprisonment in the penitentiary for each conviction, the first two terms to run consecutively and the other three to run concurrently with the second one. The cases against his wife were stetted.

On January 31, 1964, Hartley filed a petition under the Uniform Post Conviction Procedure Act. He contended, among other things, that he had been denied the right to appeal his 1961 convictions and his pleas of guilty to the charges in the several indictments had been involuntarily made. A hearing was held before Judge Edwin Harlan on May 5, 1964. Judge Harlan granted Hartley a delayed appeal after finding that his attempt to appeal was delayed by circumstances beyond his control, but made no factual findings or conclusions of law as to his other contentions. The Court of Appeals therefore remanded the case back to the Criminal Court of Baltimore, without affirmance or reversal, for an evidentiary hearing and a factual finding as to whether the pleas of guilty made by Hartley on April 28, 1961 were voluntarily made. Hartley v. State, 238 Md. 165, 208 A. 2d 72.

On remand Judge Carter heard the case and on October 19, 1965, filed an opinion granting the appellant Hartley a new trial. However, before the appellant could be retried, the Court of Appeals handed down its decision in Schowgurow v. State, 240 Md. 121, 213 A. 2d 475. As a result of the Schowgurow decision, new indictments were returned against appellant, same being indictments Nos. 6398 through 6402, each charging him with robbery with a dangerous and deadly weapon and allied counts. He entered pleas of not guilty by reason of insanity at the time of the commission of the crime, and not guilty, to each indictment.

On November 14, 1966, appellant was tried in the Criminal Court of Baltimore by Judge James A. Perrott, sitting without a jury, and was convicted under the first count (robbery with a dangerous and deadly weapon) of indictments Nos. 6398, 6400, 6401 and 6402, and a Motion for Judgment of Acquittal was granted in indictment No. 6399 when the State was unable to produce its chief witness. He was sentenced to a term of twenty years in indictment No. 6398 and to a term of ten years in each of ,the other three indictments (Nos. 6400, 6401 and 6402), to run consecutively with the sentence imposed in indictment No. 6398 and with each preceding indictment, for a total of fifty years, to be served in the Maryland Penitentiary, sentence in indictment No. 6398 to begin as of March 13, 1961.

From his convictions, he now appeals to this Court.

The State’s first witness was Lewis H. McKnight, Jr., who testified that on November 28, 1960 he was employed by the State Finance Company on Harford Road in Baltimore. On that date, at approximately 5 :30 o’clock p.m., as he was preparing to close the office, he was called to the counter by the cashier. There he was faced by the appellant, who produced an automatic revolver, pointed it in his face, and demanded the money. McKnight gave him all the money in the cash drawer amounting to approximately $260.00. Whereupon appellant, after warning McKnight and the cashier not to do anything, left. He posilively identified appellant in the courtroom as the robber, and had previously identified appellant in a police line-up. This was the substance of the testimony in indictment No. 6400.

The second witness, Mrs. Carole N. Ferrara (formerly Carole N. Lugenbeel), testified that on November 11, 1960, she was employed at the Circle Credit Company in Baltimore as a “Girl Friday”. The company’s office was located on the second floor at 1059 Hillen Street. On that date, about 4:30 o’clock p.m., appellant entered the office, pulled a gun out of his pocket, told her this was a hold-up and to give him the money. She gave him all the money in the cash drawer amounting to $50.96. Whereupon, after cautioning her, he turned and left. She made a positive identification of appellant in the courtroom, and had previously identified him in a police line-up. This was the substance of the testimony in indictment No. 6938.

The same witness, Mrs. Ferrara, further testified that on November 23, 1960 she was working at the Circle Credit Company and that at approximately 11:30 o’clock a.m. appellant entered the office and came behind the counter where she was alone. The witness recognized appellant from the previous holdup, and as he partially removed his gun from his pocket, she told him to put it back in his pocket. She then gave him the money amounting to approximately $100.00. He made her, open the safe in which there was a small amount of cash. Before he left, he made her enter the bathroom, closed the door and left. She identified appellant in court as the robber, and had previously identified him in a police line-up. This was the substance of the testimony in indictment No. 6402.

The State next produced Raymond F. Delahanty, who testified that he was the manager of the Aetna Finance Company and on December 5, 1960, he was at the Highlandtown office located at Eastern Avenue and Conkling Street in Baltimore. About 5 :45 o’clock p.m., he received a buzz to come to the front office. There he found appellant behind the counter and the cashier, Jo Ann Fedi, braced against the wall. Appellant was armed with a pistol, which he pointed at him and told him to “stand right there.” The cash drawer was open and appellant grabbed up all the money amounting to between $670 and $700. After he had cleaned out the drawer, he asked if there was any more money. Delahanty told him, “that is it.” Whereupon, he told everyone to stay inside and, as he passed Delahanty, he said, “Especially you.” He then left by the only entrance leading to the stairs on Conkling Street. Appellant was positively identified by the witness in the courtroom. He had previously identified appellant at the preliminary hearing. He did not attend the line-up. The State’s last witness was Bryan Bruck who, on December 5, 1960, was working in the collection office of the Aetna Finance Company at the time of the hold-up making phone calls. At that time he was struck on the head by a gun and as he stood up, there was a man facing him with a gun. He testified as to the details of the robbery, but was unable to make a positive courtroom identification. This was the substance of the testimony in indictment No. 6401.

Appellant raises eight contentions on his appeal.

1. That the State of Maryland subjected appellant to double jeopardy and thus violated his constitutional rights.

2. That the court should have suppressed all evidence (witness identification) because it was illegally obtained by an illegal arrest; and should have granted his pretrial motion for declaration of an illegal arrest.

3. The court should have excluded all evidence because it was -i obtained during an unreasonable delay between the arrest and preliminary hearing in violation of the Mallory Rule and his federal constitutional rights.

4. That the court should have dismissed the cases because the appellant could not be given a fair trial because of Rights violations of the federal constitution.

5. That the court should have dismissed the indictments because the Criminal Court of Baltimore lacked jurisdiction, and the indictments were invalid because of Federal Constitutional Rights violations.

6. That the appellant failed to receive a fair and speedy trial as guaranteed by the Constitution.

7. That the court should have granted appellant’s Motion for Judgment of Acquittal under Indictment No. 6401.

8. That the court erred by imposing a fifty year sentence on four indictments convictions, when at his original trial in 1961 the sentence was forty years for all five indictments, and that this was a violation of the 14th Amendment of the United States Constitution.

I

Appellant’s first contention is that he was placed in double jeopardy as a result of his retrial and this was a violation of his constitutional rights.

We find no merit to this contention. It has been repeatedly held in this State that the rule of double jeopardy is not a constitutional right but exists here as a matter of common law. Robb v. State, 190 Md. 641, 60 A. 2d 211 (1948); Ruckle v. State, 230 Md. 580, 187 A. 2d 836 (1963). The double jeopardy protection of the Fifth Amendment is not transmitted to the States through the Fourteenth Amendment. Wampler v. Warden, 231 Md. 639, 191 A. 2d 594 (1963); Nixon v. Director, 1 Md. App. 14, 226 A. 2d 352 (1967). In the event of a finding that the trial court had committed error, a new trial may be granted without infringing upon the common law rule against double jeopardy. Ruckle v. State, supra; Gray v. Director, 2 Md. App. 412, 234 A. 2d 783 (1967).

Here appellant’s retrial was brought about at his own instance as a result of his petition filed under the Uniform Post Conviction Procedure Act some three years after his original conviction which resulted in the granting of a new trial for the identical same offenses to which he had previously plead guilty. In United States v. Tateo, 377 U. S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964), the Supreme Court said that a defendant whose conviction had been set aside because of a collateral attack was not placed in double jeopardy. The Tateo case relied upon United States v. Ball, 163 U. S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).

Moreover, in Tate v. State, 236 Md. 312, 203 A. 2d 882 (1964), the Court of Appeals held that when a defendant had been tried on an indictment or information that is invalid he is not in jeopardy, and may be indicted and tried again. This Court adopted the rule laid down in Tate v. State, supra, in Sadler v. State, 1 Md. App. 383, 230 A. 2d 372 (1967); Benton v. State, 1 Md. App. 647, 232 A. 2d 541 (1967); Boone v. State, 2 Md. App. 80, 233 A. 2d 476 (1967); Blake v. State, 2 Md. App. 492, 235 A. 2d 569 (1967).

Here the appellant, after being awarded a new trial, but before his cases were tried, elected to have the indictments involved in his first trial declared invalid under Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965) and companion cases. He cannot now claim double jeopardy as a result of his trial upon the new indictments for the same offenses of which he was previously convicted. See also Gee v. State, 2 Md. App. 61, 233 A. 2d 336 (1967) where the facts were similar to the facts in the instant case.

II

Appellant’s second and third contentions relate to the suppression of all the evidence because he alleges that it was illegally obtained as a result of an illegal arrest and also should be excluded because of an unreasonable delay between his arrest and the preliminary hearing in violation of the Mallory rule and his constitutional rights. Both are equally without merit.

The trial court deferred ruling on the motion to suppress pending a hearing on the evidence. Appellant contends that the in-court identifications of the appellant and testimony as to the identification of him at the lineup and preliminary hearing were improperly admitted in evidence because appellant was illegally arrested and because he was not represented by counsel at the lineup immediately following his arrest. This Court has held that Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) did not compel the exclusion of testimony as to the identification of an accused in a lineup' as such testimony was not “tangible” evidence which was the fruit of an unlawful search. Nadolski v. State, 1 Md. App. 304, 308, 229 A. 2d 598 (1967). It is not here alleged that the lineup was either unfair or unreliable and there is nothing per se unconstitutional about a police lineup'. Moreover, since the lineup was held in March of 1961, prior to the decisions of the United States Supreme Court in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, decided June 12, 1967, the legal principles enunciated in those cases do not apply and the presence of counsel was not required. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (decided the same day). We find, therefore, that the in-court identification and the testimony as to the identification of the appellant at the lineup and preliminary hearing were properly admissible under the rules of law then applicable even assuming the arrest was illegal. Tender v. State, 2 Md. App. 692, 696, 697, 237 A. 2d 65 (1968).

Appellant’s argument that the court should have excluded all the evidence, including identification evidence, because of an unreasonable delay between the arrest and the preliminary hearing in violation of the Mallory rule and federal constitutional rights has no merit. The so-called Mallory rule as enunciated in Mallory v. United States, 354 U. S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957) is a federal rule which applies only to federal prosecutions and has no application to prosecutions in State courts as of this date. Culombe v. Connecticut, 367 U. S. 568, 601, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Bean v. State, 234 Md. 432, 444, 199 A. 2d 773 (1964). Moreover, the facts in Mallory were vastly different from the facts here, where the objection relates to identification evidence alleged to have been obtained between the date of the arrest and the preliminary hearing. While it appears that the appellant was given a preliminary hearing shortly after his arrest, under Maryland law, a preliminary hearing is not required. McCoy v. Warden, 1 Md. App. 108, 114, 227 A. 2d 375 (1967); Fabian v. State, 3 Md. App. 270, 281, 239 A. 2d 100 (1968). Also there is no constitutional right to counsel at the time of a person’s arrest or at a preliminary hearing where no plea is taken. Timbers v. State, 2 Md. App. 672, 236 A. 2d 756 (1968); State v. Hardy, 2 Md. App. 150, 233 A. 2d 365 (1967).

Assuming that appellant’s arrest was illegal, an illegal arrest does not affect the jurisdiction of the court, is not ground for dismissing an information or indictment, and does not preclude trial and conviction for the offenses. Matthews v. State, 237 Md. 384, 206 A. 2d 714 (1965); Nadolski v. State, supra; Powell v. State, 1 Md. App. 495, 498, 231 A. 2d 737 (1967). During the course of the trial no damaging statements made by appellant or physical evidence was introduced by the State. Therefore, the trial court properly overruled appellant’s motion to suppress. Matthews v. State, supra; Nadolski v. State, supra; Britton v. State, 2 Md. App. 285, 234 A. 2d 274 (1967).

Ill

Appellant’s fourth and sixth contentions relate to denial of due process and failure to receive a fair and speedy trial, and may be considered together.

Appellant’s argument under his fourth contention relates to the lapse of time between his original conviction and his second trial. He was first tried on April 28, 1961 for offenses that occurred in November and December of 1960. His second trial took place on November 14, 1966. At his second trial he entered pleas of not guilty by reason of insanity at the time of the commission of the offenses, and not guilty.

As a result of his insanity pleas he was sent to The Clifton T. Perkins State Hospital for an evaluation of his sanity at the time of the commission of the offenses and his ability to assist in his own defense. The evaluation as set forth in the Staff report disclosed that appellant “is currently without mental disorder.” However, the Staff was unable to reach an opinion as to his mental condition at the time of the commission of the crimes in November and December of 1960, since the time was so remote from the date of his initial examination on April 13, 1966.

Appellant contends that because of the inability of the Staff at the hospital to evaluate his mental condition at the time of the commission of the alleged offenses in November and December of 1960, he was denied due process of law, or, as he expresses it, “could not be given a fair trial because of rights violations.” We find no merit to this contention.

Although he was originally indicted in March 1961, he failed to raise the issue of insanity until his arraignment on April 7, 1966, and then only as to the time of the commission of the offenses in the fall of 1960. He was well aware of his rights as was shown by the fact that when his counsel filed written pleas of not guilty by reason of insanity at the time of the commission of the offenses and not guilty by reason of insanity at the present time, appellant ordered that the latter plea be stricken.

Appellant offered no evidence at the trial on November 14, 1966 to support his plea of insanity at the time of the commission of the crimes, and the lower court found him to be sane on the date alleged in each indictment. On this appeal he now seeks to place the blame on the lower court (Judge Carter) for failing to order a mental examination of appellant at the time of his first trial on April 28, 1961. Under Article 59, Section 9, Maryland Code, 1957 (which was then the law), the lower court could have ordered such an examination if it appeared to the court or if it had been alleged by appellant that he was insane, or if the court had any reason to suspect that appellant might be insane. There is nothing in the record before us to indicate that the lower court had any reason to suspect that appellant was insane or incompetent to stand trial, nor did either he or his counsel make any such allegation. It was some five years later, after new indictments were returned against him, that he first raised the issue of insanity.

While it is unfortunate that the Staff at The Clifton T. Perkins State Hospital was unable to make an evaluation of appellant’s mental condition at the time of the commission of the offenses with which he was charged, because of the length of time that had intervened prior to his being sent to the hospital for an evaluation, appellant cannot now complain over his own failure to raise the issue. He was given the opportunity to plead insanity at his first trial but failed to do so, nor did he raise the issue in his petition under the Uniform Post Conviction Procedure Act filed January 31, 1964. State v. Murdock, 235 Md. 116, 200 A. 2d 666 (1964).

In this State, “a man is presumed sane until sufficient proof of his insanity is introduced to raise a question in the minds of reasonable men as to whether he is or is not sane.” Lipscomb v. State, 223 Md. 599, 604, 165 A. 2d 918 (1960). Since this case was tried prior to June 1, 1967 the proof necessary to overcome the presumption of sanity must be evidence of insanity as defined under the McNaughton-Spencer rule, Rowe v. State, 234 Md. 295, 199 A. 2d 785 (1964), and when sufficient proof of insanity has been introduced to overcome the presumption of sanity, the State has the burden of proving sanity beyond a reasonable doubt. Bradford v. State, 234 Md. 505, 200 A. 2d 150 (1964). See Bergin v. State, 1 Md. App. 74, 227 A. 2d 357 (1967). Appellant offered no evidence at the trial to over■come the presumption of sanity at the time of the commission •of the offenses, and the lower court properly overruled appellant’s motion and found him to be sane as of that date.

There is no merit to appellant’s sixth contention that he was denied a fair and speedy trial. The facts themselves are the best answer to this contention. The original indictments were returned in March of 1961, and appellant was tried on April 28, 1961. He waited until January 31, 1964 to file a petition under the Uniform Post Conviction Procedure Act. The hearing was held on May 5, 1964 when he was granted a delayed appeal. His appeal was heard by the Court of Appeals and remanded back to the Criminal Court of Baltimore on March 16, 1965, and a hearing was held before Judge Carter, sitting in that court, and, on October 19, 1965, Judge Carter filed an •opinion granting appellant a new trial. The Court of Appeals handed down its decision in Schowgurow, supra, on October 11, 1965, as a result of which new indictments were returned •against appellant on December 21, 1965. Counsel was appointed for him and he was arraigned on January 11, 1966, at which time he pleaded not guilty. He was dissatisfied with his attorney •and on March 22, 1966 his attorney’s appearance was stricken •and counsel of his choice was appointed for him. He was re-arraigned on April 11, 1966, at which time he entered pleas ■of not guilty by reason of insanity at the time of the commis•sion of the offenses and not guilty. This necessitated his being •sent to The Clifton T. Perkins State Hospital for an evaluation •as to his mental condition which resulted in further delay. He was returned from the hospital, and on September 14, 1966 filed ■a motion for discovery and inspection, and on September 20, 1966 filed motion to suppress evidence, motion to dismiss in•dictments and memorandum in support of motions. He was tried on November 14, 1966. It is, therefore, apparent that there was no delay on the part of the State in bringing appellant to trial. The delay, if any, resulted from appellant’s own conduct. Since the appellant made no demand for a speedy trial nor did lie suffer any actual prejudice by any undue delaying tactics of the State, he cannot now complain that he was denied a fair and speedy trial. See Fabian v. State, supra; Lawless v. State, 3 Md. App. 652, 241 A. 2d 155 (1968); Stevenson v. State, 4 Md. App. 1, 241 A. 2d 174 (1968).

His remaining allegations under his fourth contention, that his counsel was incompetent and that the State joined in a conspiracy with his trial counsel to induce him to plead guilty, relate to events occurring at his first trial in 1961, for which he was granted relief, and are not properly before this Court.

IV

Appellant’s fifth contention is that the lower court should have dismissed the indictments because the Criminal Court of Baltimore lacked jurisdiction and the indictments were invalid because of Federal Constitutional rights violations.

Appellant contends that the entire composition of the judicial system of this State is unconstitutionally constituted because all officeholders (including judges) were required to declare a belief in the existence of God under Article 37 of the Maryland Declaration of Rights.

The contention was answered in the recent federal decision, Ralph v. Brough, 248 F. Supp. 334 (D. Md. 1965) where Chief Judge Thomsen at p. 336 said:

“The decision of the Supreme Court in Torcaso v. Watkins, 367 U. S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961), indicates that if a person who had been appointed or elected judge did not believe in the existence of God, he could have refused to make the prescribed declaration, and could have obtained his commission by mandamus, as Torcaso did. It does not require a holding that the judges of the various courts of the State of Maryland are not legal and constitutional judges, because they made the declaration at the time they took office. This Court holds that the judges who heard Ralph’s case in the Circuit Court for Montgomery County and the judges of the Court of Appeals of Maryland were de jure judges.”

See also Breeding v. Warden, 244 Md. 716, 224 A. 2d 105 (1966) and Wilmer v. Warden, 244 Md. 718, 224 A. 2d 106 (1966).

Also in White v. State, 244 Md. 188, 223 A. 2d 259 (1966), the appellant contended that under Schowgurow v. State, supra, the fact that the complaining witness, in order to procure the arrest warrant, and the committing magistrate and the State’s attorney, in order to qualify for office, all had to declare a belief in God, invalidates his being brought before the Criminal Court and his subsequent conviction. In finding the appellant’s contention without merit, the Court of Appeals, speaking through Judge Marbury, at page 190' said :

“Short answers are, first, that since the decision of the Supreme Court in Torcaso v. Watkins, 367 U. S. 488, 6 L. Ed. 2d 982, on June 19, 1961, the committing magistrate and the State’s attorney (both of whom necessarily were elected or appointed after 1961) could not be required to profess a belief in God as a prerequisite to qualifying for an office of profit or trust, and similarly the complaining witness could cause a warrant to be issued without declaring that he believed in the existence of a Supreme Being; second, the record is silent as to whether the two officials on taking office or the witness in procuring the warrant in fact did or did not declare a belief in God; and, third, that if any or all of the three voluntarily did declare a belief in God obviously he exercised a constitutionally guaranteed right of religious freedom.”

We find appellant’s contention to be without merit.

Appellant’s further argument that the indictments were invalid because of Federal Constitutional rights violations, in that it was a violation of due process and equal protection to indict fifty-eight months after arrest and to hold imprisonment for fifty-eight months (1961-1966) before a valid indictment was placed against him is only a bald statement of fact, unsupported by authority, is without merit and has been previously answered. Furthermore, the sentences imposed upon his second conviction began as of March 13, 1961.

V

Appellant’s seventh contention is that the court erred in not granting his motion for judgment of acquittal under indictment No. 6401. This indictment relates to the robbery that occurred in the Highlandtown office of the Aetna Finance Company on December 5, 1960. His argument here is that the State alleged in the indictment the robbery of Raymond F. Delahanty, when the evidence revealed that the robbery victim was not Delahanty but Jo Ann Fedi, the custodian of the cash drawer. We find no merit in this argument. The record discloses Raymond F. Delahanty was the manager and responsible for the office. When he came upon the scene, appellant, armed with a gun, was behind the counter. The cash drawer was open but no money had been removed. When asked what he was doing behind the counter, appellant pointed the gun at Delahanty and said, “This is what I’m doing here.” Appellant then took all the money from the cash drawer and asked Delahanty if there was any more money in the office. When Delahanty replied, “No”, appellant walked over to him and stated he wanted no one to follow him out of the office. Looking at Delahanty, he said, “Especially you.” He then left after taking between $600 and $700 from the office.

Robbery is a crime against the person. Clark and Marshall, Crimes (6th Ed.), §12.09 defines robbery as the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear. The property taken need not be owned by the person robbed. Actual possession or custody is sufficient against the wrongdoer. Clark and Marshall, §12.11; Dyson v. Warden, 1 Md. App. 469, 473, 231 A. 2d 78 (1967). A charge of robbery may be sustained by proof that the property was forcibly taken from the care, custody, control, management or possession of one having a right superior to that of the robber. Robbery, 77 C.J.S., §7. Here Raymond F. Delahanty was the office manager for the Aetna Finance Company, and as such was responsible for the money. He was present when the office was robbed at gunpoint. The lower court found that Delahanty was properly named as the victim in the indictment and we agree.

VI

Appellant’s eighth contention is that the lower court erred in sentencing by imposing a fifty years sentence on four indictments’ convictions, when at the original trial in 1961 the sentence was forty years for all five indictments, because it violated the Fourteenth Amendment of the United States Constitution.

In the instant case the appellant was found guilty on the first count of four armed robbery indictments and sentenced to serve twenty years on indictment No. 6398, ten years on indictment No. 6400, ten years on indictment No. 6401, and ten years on indictment No. 6402, all sentences to run consecutively. None of these sentences exceed the statutory maximum authorized by Section 488 of Article 27, Maryland Code (1957).

At his first trial appellant was convicted under the first count of five armed robbery indictments. He was sentenced to twenty-year terms under the first two indictments, to run consecutively, and twenty-year terms under the remaining three indictments, to run concurrently with two twenty-year sentences previously imposed, or a total of forty years to be served. He now contends that the harsher penalty imposed after his second trial constitutes cruel and unusual punishment.

Under Maryland law it has been held that on retrial under the same indictment, the trial judge could impose a greater sentence than had been previously imposed. Hobbs v. State, 231 Md. 533, 191 A. 2d 238, cert. den. 375 U. S. 914, 84 S. Ct. 212, 11 L. Ed. 2d 153. In Hobbs v. State, supra, the Court said:

“It has been held by this Court in numerous cases, as here, that ordinarily any punishment authorized by statute and within statutory limits is not cruel and unusual under Article 16 or 25. * * * In asking for and receiving a new trial, appellant must accept the hazards as well as the benefits resulting therefrom.”

Here the appellant was convicted in 1961 and in 1964 was granted a new trial. After the decision of the Court of Appeals in Schowgurow v. State, supra, the appellant chose to avail himself of the relief afforded him thereunder and was reindicted on December 21, 1965.

In Moon v. State, 1 Md. App. 569, 232 A. 2d 277 (1967), the question presented was: Does the due process clause of the Fourteenth Amendment of the Constitution of the United States, or the common law as applied in Maryland preclude a greater sentence at the second trial than at the former? This Court held that: “Tate v. State, 236 Md. 312, 203 A. 2d 882, and State v. Barger, 242 Md. 616, 220 A. 2d 304, make clear that where an indictment is invalid, a defendant can be retried since he has not previously been put in jeopardy. It would seem obvious that in such event, his punishment could be greater than at the prior trial.” Cf. Reeves v. State, 3 Md. App. 195.

We find appellant’s final contention without merit.

Judgments affirmed


author: Morton, J.,

text:
    CORNELL FALCON v. STATE OF MARYLAND
    [No. 231,
    September Term, 1967.]

      Decided July 1, 1968.

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

      William H. Nelson, Jr., and Thomas E. Hicks for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Barry S. Frame, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant was convicted of second degree murder by a jury in the Criminal Court of Baltimore and sentenced to a term of twelve years.

In this appeal, he first contends that he was denied his constitutional right to a speedy trial.

The record indicates that at approximately 11:00 P.M. on August 18, 1966, a police officer found the deceased lying in the middle of the street bleeding from multiple stab wounds about the face and head. He was taken to a hospital where he died, as a result of the wounds, on November 25, 1966.

The Appellant was arrested on August 19, 1966, and incarcerated on a charge of assault with intent to murder. He remained in jail on this charge until November 25, 1966, at which time the charge was changed to murder. He continued in jail, without bail, from that date until trial. Counsel was retained by the Appellant on January 9, 1967. A petition for a Writ of Habeas Corpus was filed; a hearing thereon was held January 23, 1967; and it was ordered that unless the Appellant were indicted by January 24, 1967, the Writ would be granted. An indictment was returned within the time specified; the case was scheduled for trial on February 28, 1967, but postponed at the request of the State because of the unavailability of certain witnesses. It was re-scheduled for March 28, 1967, but not reached for trial until March 29, 1967.

The period of time from the murder indictment, upon which he was convicted in this case, and his trial thereon, amounted to approximately three months. During this time, the Appellant made no demand for a speedy trial and he has not alleged or shown that he suffered any actual prejudice by the failure of the State to bring the case to trial at an earlier date during this period. Absent such a showing, he has not been denied his right to a speedy trial. Fabian v. State, 3 Md. App. 270, 286.

He argues, however, that the period from August 18, 1966, the date of his arrest, to the date he was charged with murder should be considered in determining whether he was denied his right to a speedy trial. The State accounts for the delay in bringing the Appellant to trial during this period by asserting that the victim was too ill to testify and that without his testimony the State could not proceed to trial. While we are at a loss to understand why bail procedures were apparently not available to the Appellant, the fact remains that the charge pending against him during this period was assault with intent to murder and this charge was dismissed on November 25, 1966, or shortly thereafter. During that period, no prosecution for murder, the crime of which he now stands convicted, had been, or could have been placed against him.

The Court of Appeals of Maryland, and this Court, have held, with exceptions not here pertinent, that the right to a speedy trial does not arise until a prosecution has been instituted and an accused cannot successfully complain of delay in the institution of the prosecution if it is within the applicable period of limitations. Miller v. State, 239 Md. 136, 139; Price v. State, 235 Md. 295, 299; Osborne v. State, 3 Md. App. 161, 163; Brown v. State, 1 Md. App. 571, 575. Thus, the Appellant’s argument that the period from his arrest to the date of his prosecution for murder should be considered in determining whether he was denied his right to a speedy trial on the murder charge must fail in the face of this well established principle. As this Court said in Osborne v. State, supra:

“While it is true that both the Sixth Amendment to the Federal Constitution and Article 21 of the Maryland Declaration of Rights give an accused the right to a speedy trial, these constitutional mandates have never been extended to encompass an alleged right to a so-called speedy indictment * *

The Appellant also contends that he “was denied a preliminary hearing as required under Mallory v. United States, 354 U. S. 449.” Mallory, on its facts and holding, applies only to federal cases and not to state proceedings. Bean v. State, 234 Md. 432, 444. In Fabian v. State, supra, we held that “an accused has no ‘absolute right’ to a preliminary hearing whether he be indicted or charged under a criminal information.”

Finally, the Appellant urges that the evidence demonstrated that he acted in self defense and, therefore, the jury’s verdict was in error. It was stipulated by the State and the defense that the deceased was forty-four years of age, five feet two inches tall and at the time of his death weighed ninety pounds. The Medical Examiner testified that the autopsy revealed evidence of a stab wound in the back of the head approximately two inches above the collar line and that the resulting injury to that part of the brain controlling the respiratory system was the cause of death. Another witness for the State testified that on the evening in question he observed the Appellant and the deceased, who was known as “Pee Wee”, in a bar; that they got to “playing around” and later went outside where he observed an argument over cigarettes take place; that he saw the deceased pull “a hooked bill knife out like that and swing”, and “pretty soon I see Pee Wee backtracking down the street” toward an intersection and when he got to the intersection he saw “Pee Wee laying in the street * * * but before he was laying in the street, I did see Cornell trip him. But, Cornell did say ‘I’m cut.’ ” Another witness testified that he saw two men fighting in the street; “One man laying down, other man on top of him striking him * * *” and when asked if the man on top was taller than the man on the bottom answered “Yes”, but he could not identify him. The Appellant, who was approximately six feet two inches tall, testified that when he asked the victim for a cigarette the victim cursed him and pulled a knife. “I tried to get away. He swung at me first. That’s the time I threw my hand up, cut me through the finger. I had a screwdriver in my pocket. I swing back at him. I must have stabbed him. He backed back. Somebody in the crowd say ‘Look out, he got a gun.’ I don’t know what he was going to do. He backed up, stumbled. He swung at me. I swung at him. Got to 21st street. He fell. I took off and run.” When found by the police officer lying in the street the victim had in his possession a knife but no gun.

In Tipton v. State, 1 Md. App. 556, this Court recognized the doctrine of self defense as defined by Judge Hammond (presently Chief Judge) in Guerriero v. State, 213 Md. 545, 549:

“The law of Maryland as to self-defense is clear. To justify an assault on the basis of self-defense, the accused must have had reasonable grounds to believe, and have in fact believed, himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant. This belief must coincide with that which would have been entertained under the same circumstances by a person of average prudence. [Citations omitted] * * * This is in accord with the rule of the majority of the States, that is, for the accused successfully to invoke self-defense, he must have done what he did to repulse an apparent danger of death or great bodily harm. A number of cases so holding are collected in an annotation in 114 A.L.R. 634. In Maryland it is for the trier of the facts to determine whether the accused was justified in meeting force with force. If justification be found to have existed, the force used must not have been ‘unreasonable and excessive’, that is, must not have been more force ‘than the exigency reasonably demanded.’ ”

It is apparent from the testimony that at the beginning of the argument the victim did pull a knife and swing at the Appellant. The jury, however, could well have found from the evidence that the Appellant almost immediately thereafter became the aggressor and that it was the victim, not the Appellant, who was on the defensive. There was testimony that the victim was backing down the street and that he was tripped by the Appellant. It could reasonably have been inferred that" the Appellant, who was about a foot taller than the victim, was the man seen on top of the victim striking him while he was lying in the street. The cause of death was a stab wound in the back of the victim’s head. Finally, the Appellant himself admitted that the victim backed up, stumbled and fell.

Under the doctrine of self defense, it is for the trier of facts to determine whether more force was exerted by the accused than the exigency of the situation demanded. We are of the opinion that there was ample evidence from which the jury could determine that the Appellant became the aggressor and resorted to force which was grossly excessive under all the circumstances. We find no error in the lower court’s refusal to grant the Appellant’s Motion for Judgment of Acquittal.

Judgment affirmed.