text:
    THEODORE WARE v. STATE OF MARYLAND
    [No. 96,
    September Term, 1967.]

      Decided February 1, 1968.

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

      William Franklin Gosnell for appellant.

      Bernard L. Gilbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and I. BUiott Goldberg and LeRoy Carroll, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Per Curiam.

Theodore Ware, the appellant, complains of a conviction of murder in the second degree in a trial without a jury in the Criminal Court of Baltimore.

There was evidence from which the court could have found: On February 21, 1966, at or about 12:30 A.M., Ware, with his girlfriend, Margaret Jeter, and the deceased, Isaac Perry, with his girlfriend, Alethia Bond, were present at the “Millionaire’s Club,” a nightclub located at 1029 Pennsylvania Avenue in the City of Baltimore. Ware and the deceased were seated at separate but adjoining tables in a cramped area. An argument ensued between the two concerning a coat which had been erroneously picked up by another person. An altercation soon followed in which the deceased put his hand on a beer bottle and Ware produced a knife and said: “Don’t mess with anybody unless you know what they have.” At this point the hostilities temporarily ceased. Ware returned the knife to his pocket and Alethia Bond wrestled the beer bottle from the deceased and placed it on the table. After a short pause, hostilities again resumed and the principals, together with Alethia Bond, appeared in the center of the floor. Ware offered to fight with the deceased but suggested that they go outside. The deceased declined the offer, reached over Alethia Bond and struck Ware with his fist with such force that Ware and the deceased fell on the floor with Alethia Bond between them “like a sandwich.” Several by-standers untangled the pile-up but Alethia Bond remained on the floor holding on to Ware’s legs. This caused an argument between Margaret Jeter and Miss Bond. At this point Ware “took his knife from his pocket” and advised a by-stander not to interfere with the fight between the two young ladies. Ware, with his knife in hand, proceeded to throw bottles and glasses at the deceased who had retreated to a corner. Ware stabbed the deceased twice with his knife and fled the scene. He was apprehended under a warrant six days later hiding under a bed at the premises at 4007 Ann Ellen Road, Baltimore.

The trial judge found that, although the deceased was the original aggressor, Ware used more force than was necessary to repel the attack, and that he had ample time to “cool off” before he resumed the affray after the deceased had backed away from the scene of the first struggle. We cannot say the trial judge was clearly wrong under Maryland Rule 1086 which establishes that we shall affirm the decision of the trial judge in a trial without a jury unless we can find that his decision on the evidence was clearly erroneous. The law is clear that although a person may defend himself, even to the extent of taking life to repel the attack of an aggressor, it is equally well settled that he cannot use more force than is necessary, Tipton v. State, 1 Md. App. 556, 232 A. 2d 289, Guerriero v. State, 213 Md. 545, 132 A. 2d 466. The law is equally well established that although an affray may, under some circumstances, arouse the passions of an accused to the extent that a homicide would be reduced from murder to manslaughter, this rules does not apply where there is ample time for the passions “to cool,” 2 A.R.R. 3d 1292, 1306 (1965) 1 Wharton: Criminal Law and Procedure § 286 (Anderson’s 12th Edition).

Thus, the appellant’s claims that he was entitled to an acquittal by reason of self-defense and that the evidence did not support a verdict of murder in the second degree are obviously ■without merit.

A timely motion for a new trial was filed under Maryland Rule 759a on three grounds not pertinent to the appeal. After the motion for a new trial was filed, and after the time for such motions had expired, the defendant, in proper person, filed a second motion raising several new grounds including that his court appointed counsel had been incompetent. This was not germane to any issue raised in the original motion. He requested additional counsel be appointed for the purpose of arguing this point on the motion for a new trial. Although by stipulation counsel agreed the trial court should treat the second motion as an amendment of the first, the court declined to appoint additional counsel.

Under Brown v. Warden, 228 Md. 654, 179 A. 2d 419, Ware contends that the court committed error in refusing the appointment of counsel to explore his complaints against his trial counsel. If the trial court had jurisdiction to hear the belated motion for new trial, Ware’s position might be well taken; however, in State v. Tull, 240 Md. 49, 212 A. 2d 729 and in Giles v. State, 231 Md. 387, 190 A. 2d 627, the Court of Appeals of Maryland held that a trial court had no power to grant a new trial under Rule 759 a except pursuant to a timely motion. We think that the parties by stipulation could not give the court power it otherwise would not have had. Neither do we think a motion for a new trial can be amended in such manner as to make it an entirely different motion after the time for filing such a motion has expired. This issue has not been decided in Maryland but the majority of courts interpret similar rules or statutes accordingly. See cases collected 132 A.L.R. 542.

It is true that in State v. Tull, supra, the Court of Appeals of Maryland treated a belated motion for a new trial as an application for post conviction relief and disposed of the appeal on its merits. We are unable to so treat this motion, however, for the reason that the motion was heard by the same judge who conducted the original trial, without a waiver, and therefore under Burley v. State, 239 Md. 342, 211 A. 2d 714 and Taylor v. Director, 1 Md. App. 23, 226 A. 2d 358 this would have been an error; and because new counsel was not appointed to represent Ware on his contention that his trial counsel had been incompetent, Brown v. Warden, supra. We will affirm the conviction without prejudice to Ware’s rights to raise the issue of competency of counsel in post conviction procedures which seem to us to be the more appropriate proceedings in which to raise such contentions. We do not reach, and do not decide, the merits of the contention.

Judgment affirmed.


source: Caselaw Access Project

author: Anderson, J.,

license: Public Domain

text:
    DOUGLAS MONTAGUE v. STATE OF MARYLAND
    [No. 137,
    September Term, 1967.]

      Decided February 1, 1968.

    The cause was argued before Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ.
    /. Thomas Nissel for appellant.

      Henry J. Frank el, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein,. State's Attorney for Howard County, and Cornelius J. Helfrich, Assistant State's Attorney for Howard County, on the-brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On May 4, 1967, the appellant, Douglas Montague, was convicted of manslaughter by automobile in the Circuit Court for Howard County, Judge James Macgill sitting without a jury. Appellant was sentenced to three years in the Maryland House •of Correction.

Appellant’s sole contention raised on this appeal is that the ■ evidence was not sufficient to sustain the conviction.

On February 4, 1967, at approximately 7:30 a.m., Mr. Lester John Cuffley, Jr., was driving a truck northbound on U. S. Route #1 nearing the intersection with Maryland Route #175, traveling between 40-45 miles per hour, in a 50 mile per hour speed zone. He observed in his rear view mirror a car approaching his rear “pretty fast” and swerving from the slow to fast lane, riding over the broken line, going back and forth “like somebody playing with the wheel, pulling it back and forth.” When the vehicle neared him, he observed two occupants, a man driving and a woman passenger. He first thought that the ■ car, an Oldsmobile, was going to collide with the rear of his truck, but it swerved away and then back toward the truck • causing Cuffley to believe a collision would occur with the side •of the truck. The Oldsmobile “then shot straight away from me like somebody would turn a wheel real fast,” crossed the solid yellow line separating the north and southbound lanes, and struck a Studebaker in the southbound slow lane. Mr. Cuffley stopped his truck and got out. He observed the driver •of the Oldsmobile get out from the driver’s side, call to the woman passenger, who also got out, and both ran from the scene. The man had covered his face with his hands but removed his hands when about six feet from Mr. Cuffley when ■calling to his passenger, and he viewed the driver’s face for ap- ' proximately 10-12 seconds.

In court, Mr. Cuffley positively identified the appellant as 'the driver of the Oldsmobile.

' James Thompson testified that he arrived on the scene immediately after the collision and observed a male and female running from the Oldsmobile. As they fled the scene, Mr. Thompson called to the male to stop, when he was twenty-five feet away, but he continued his flight.

Mr. Thompson identified the appellant in court and had also picked him from a lineup at the Waterloo Barracks on the same 'day as the accident.

Trooper Daniel Earl Stanton testified that he had stopped the appellant at a Transit Truck Stop, south of Laurel on U. S. Route #1, between 6:50 a.m. and 7:10 a.m. on February 4, 1967. Appellant was driving an Oldsmobile, traveling south and weaving in the slow lane. Appellant did not have an operator’s license. Trooper Stanton charged him with operating a motor vehicle without a license and informed him that he would have to leave the car there and take a cab or bus home. There was an odor of alcohol noted on appellant’s breath, but he was not charged with drunken driving. After the trooper left, the appellant completely disregarded the admonition and continued to operate the vehicle.

The accident investigators established that the point of impact was in the center of the slow southbound lane, approximately eighteen feet from the center line. No skid marks were noted leading up to the point of impact; however, a side skid mark of one hundred and forty feet was observed leading away from the point of impact to the Oldsmobile. The Studebaker had been shoved backwards thirty feet from point of impact. The Oldsmobile struck the Studebaker on the driver’s side at the left door. The force of impact caused the Studebaker to completely reverse its direction of transit.

Paul C. Garner, the operator of the Studebaker, died as a result of multiple traumatic injuries, including a fractured neck sustained in this accident.

Article 27, § 388 of the Annotated Code of Maryland states:

“Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, * * * or other vehicle, in a grossly negligent manner, shall be guilty of the misdemeanor to be known as ‘manslaughter by automobile’ * * * ”

The applicable test discerning whether the standard “in a grossly negligent manner” of the statute stands violated or not has been established through a succession of cases to be as initially enunciated in State of Maryland v. Chapman, 101 F. Supp. 335 at 341 (1951), where the court said:

“whether the conduct of the defendant, considering all the factors of the case, was such that it amounted to a ‘wanton or reckless disregard for human life.’ ”

This doctrine was also followed in Hughes v. State, 198 Md. 424, 432, 84 A. 2d 419 (1951); Duren v. State, 203 Md. 584, 588, 102 A. 2d 277 (1954); Thomas v. State, 206 Md. 49, 51, 109 A. 2d 909 (1954); Clay v. State, 211 Md. 577, 584, 128 A. 2d 634 (1957); Lilly v. State, 212 Md. 436, 442, 129 A. 2d 839 (1957); Johnson v. State, 213 Md. 527, 531, 132 A. 2d 853 (1957); Abe v. State, 230 Md. 439, 440, 187 A. 2d 467 (1963); and Wasileski v. State, 241 Md. 323, 324, 216 A. 2d 551 (1966).

In Hughes v. State, supra, fast driving and swerving the vehicle toward a group of people, without an intent to harm, was sufficient to establish conduct constituting a wanton or reckless disregard for human life.

In Duren v. State, supra, at 591, the Court of Appeals speaking through Judge Hammond (presently Chief Judge) stated:

“If there is found such lack of control, whether by reason of speed, or otherwise, in a place and at a time when there is a constant potentiality of injury as a result, there can be found a wanton and reckless disregard of the rights and lives of others and so, criminal indifference to consequences.”

The lessening of the control of the vehicle by reason of speed in the environment of a city street sufficiently established the gross negligence necessary to sustain the conviction.

Clay v. State, supra, stated “failure to keep a proper lookout; passing recklessly at an intersection; striking a pedestrian in a crosswalk; excessive speed under the circumstances; driving while drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication; and flight,” were proper factors to review in a determination of gross negligence. In discussing flight, the Court quoted at p. 585, People v. Allen (Ill.) 14 N. E. 2d 397, 407, wherein it was stated:

“Flight from the scene of a collision without any effort to ascertain the extent of the injuries caused by his act or to aid the injured person may be taken into consideration as evidence of guilt.”

The Court went on to say “[a]nd this is so even though the flight may consitute a criminal offense.” Therein the Court found that passing at an intersection, drinking although not intoxicated, excessive speed in the city and flight were sufficient to sustain the conviction.

In Lilly v. State, supra, drinking, although the blood test established that defendant was not intoxicated and the State did not contend that defendant was operating under the influence, was a proper matter to consider along with excessive speed, as attested to by a witness and “the location of the vehicle after the accident, the damage to the vehicles, and the injuries suffered,” and failure to stop at a stop sign proved a sufficient basis to sustain the conviction.

Abe v. State, supra, found “traveling at excessive speed,” “drinking to an extent likely to affect his driving judgment” and operating his vehicle on the wrong side of the road, sufficient evidence of gross negligence to sustain the conviction.

Wasileski v. State, supra, found that drinking although technically not intoxicated and flagrantly violating the Maryland traffic laws by driving on the wrong side of the road “without any good reason for so doing” was sufficient evidence to sustain the conviction.

In the instant case, the appellant was positively identified, at trial, as the operator of the Oldsmobile, at the time of the accident, by witness Lester John Cuffley, Jr. In addition, the appellant had been stopped and identified as the operator of the Oldsmobile by Trooper Stanton shortly before the accident. Furthermore, he was identified in a lineup on the day of the accident and at trial as the party fleeing from the Oldsmobile and called to, to stop by James Thompson.

It is well established that the positive identification of a single eye-witness, if believed by the trier of facts, is ample evidence to sustain a conviction. Walters v. State, 242 Md. 235, 237, 218 A. 2d 678 (1966); Hutchinson v. State, 1 Md. App. 362, 367, 230 A. 2d 352 (1967); Crumb v. State, 1 Md. App. 98, 103, 227 A. 2d 369 (1967).

From the evidence adduced below the trial court properly found that the appellant was the operator; that he had swerved his vehicle onto the wrong side of the road; that he had fled from the scene of the accident; that he was without an operator’s permit and had been fully informed that he had no right to drive and chose to disregard that notice. Furthermore, there was evidence of failure to keep a proper lookout; drinking not amounting to intoxication; failure to maintain proper control; passing recklessly and excessive speed, as evidenced by the impact, skid marks and testimony of the eye-witness Cuffley, all of which are proper matters of consideration in a determination of possible gross negligence.

The test of the sufficiency of the evidence in a nonjury case is “whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Thomas v. State, 2 Md. App. 502, 507, 235 A. 2d 777 (1967); Chittum v. State, 1 Md. App. 205, 209, 228 A. 2d 628 (1967).

We find that the appellant’s flagrant disregard of the elementary principles of the Maryland traffic laws; operation of a motor vehicle without having qualified for an operator’s permit, which to us raises a prima facie presumption of the inability to properly operate a motor vehicle; total disregard of a police officer’s admonition not to drive; erratic switching of lanes; swerving onto the wrong side of the road and flight from' the scene of the collision, together with some evidence of drinking, meets the test established by the cases cited. Upon the record before us, we find that the trial judge’s finding was not clearly erroneous. Maryland Rule 1086.

Judgment affirmed.


author: PER Curiam.

text:
    HAROLD McCUEN v. STATE OF MARYLAND
    [No. 156,
    September Term, 1967.]

      Decided February 1, 1968.

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

      Howard Norin for appellant.

      James R. Crook, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Barry Frame, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   PER Curiam.

Harold McCuen, the appellant, an inmate of the Maryland Penitentiary, was tried before Judge J. Harold Grady, sitting without a jury in the Criminal Court of Baltimore, on charges of possession and of control of barbiturates. He was convicted of having a barbiturate under his control and sentenced to a term of nine (9) months consecutive to the sentence for rape which he was currently serving.

On March 3, 1967, Lt. Lyles, a correctional officer at the Penitentiary assigned to narcotics investigation, received information that McCuen was selling secobarbitals, a barbiturate. On the same day he went to McCuen’s cell which he alone had occupied for approximately three (3) months. Jerry Hunt, a visiting fellow prisoner, was in the cell with McCuen who was standing to the rear of the cell near the wash bowl. Lt. Lyles asked Hunt to step outside the cell, searched him and found one secobarbital capsule on his person. He then ordered Mc-Cuen out of the cell and searched him finding nothing. Lt. Lyles testified that at that time McCuen “appeared to be under some type of stimulant, his speech was impaired and disorderly .staggering like he couldn’t maintain his balance too' well.” Lt. Lyles then instructed Sgt. Nagel, who was in charge of the cellblock, to search McCuen’s cell. The search, which immediately followed, produced a packet containing forty secobarbital capsules secreted under the edge of the wash basin.

Sgt. Nagel testified that prisoners are instructed to close their cell doors upon leaving their cell, that closing of the cell door will automatically lock it. There is a security check to insure that cells are locked when the occupant is out. On cross-examination, Nagel stated that it was possible that an inmate assigned to a cell in McCuen’s area could enter his cell unobserved if the door was not closed.

McCuen and fellow inmate, Gene Thompson, testified that there were occasions when McCuen’s cell was entered by his-friend Thompson in McCuen’s absence when “the door was closed but not all the way.” Thompson also stated that another inmate friend “used to come down there [to McCuen’s cell], Mr. Shaney.” It was not suggested that Messrs. Thompson or Shaney had any knowledge of the secobarbital capsules.

The only question presented for our determination concerns, the sufficiency of the evidence to support the conviction. On these facts we cannot say that the trial judge was clearly erroneous in finding McCuen guilty, Maryland Rule 1086.

In Hayette v. State, 199 Md. 140, 144, 85 A. 2d 790, 792 in discussing a similar subject the Court of Appeals said as follows :

“In the second case appellant’s basic contention is that the contents of the paper bag and the cardboard box were not properly admissible in evidence, (a) because there was no evidence to connect them with appellant and (b) because the slips were old, had ceased to be lottery slips and had become mere trash. Whether last month’s newspaper is still a newspaper or last month’s lottery slip a lottery slip, we need not consider. Assuming that it is not, it is none the less, when found in quantity, evidence of keeping a lottery place in the present or the recent past. Of course, it must be connected with appellant. Mere discovery in a station-house cell after occupancy by defendant, Sugarman v. State, 173 Md. 52, 58-59, 195 A. 324, or on the person of the driver of an automobile in which defendant is a passenger, United States v. DiRe, 332 U. S. 581, 593-594, 68 S. Ct. 222, 92 L. Ed. 210, is not enough to show guilty connection with defendant. But the evidence of the connection need not be certain evidence of guilt; * * probability is the only requirement * * Goldstein v. State, 179 Md. 697, 22 A. 2d 471, 472; Purviance v. State, 185 Md. 189, 193, 44 A. 2d 474. In the instant case the evidence of connection is sufficient. The yard, no less than the store, was part of appellant’s premises. We need not try to guess just how the box and contents got there. Apparently, “someone had blundered.” If this evidence was admissible (as we hold it was) the trial court was not clearly wrong in inferring that it did not reach appellant’s premises without his privity or knowledge and in finding him guilty of keeping a lottery place. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous coincidence consistent with innocence be negatived. Goss v. State, 198 Md. 350, 84 A. 2d 57, 58.” (Italics added)

While the evidence, here, did not amount to proof of guilt to a mathematical certainty, it was sufficient to support the verdict of the trial court. McCuen not only occupied the cell alone, but there was evidence that at the time of the search he was under the effects of some kind of drug and that he was standing close to the place where the barbiturates were found when he first received knowledge that his cell was to be searched. We cannot say that the trial court was clearly wrong in inferring that the barbiturates did not reach their hiding place without McCuen’s knowledge and consent.

Judgment affirmed.

      . It should be noted that in Sugarman v. State, supra, the accused had been thoroughly searched immediately prior to the time he was placed in the cell and that the search of the cell was twenty-minutes after his occupancy.


author: Per Curiam.

text:
    PRESTON V. HARGIS v. WARDEN, MARYLAND PENITENTIARY
    [No. 43,
    September Term, 1967.]

      Decided February 2, 1968.

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

Petitioner was indicted and convicted on charges of armed robbery and murder. On June 2, 1965, he was sentenced by Judge Meyer M. Cardin, sitting in the Criminal Court of Baltimore, to terms of life imprisonment and twenty years, to be served concurrently. An appeal was filed on June 14, 1965, but was subsequently withdrawn on June 22, 1965.

Petitioner filed his petition under the Uniform Post Conviction Procedure Act on January 20, 1967. A hearing was held •on March 23, 1967, before Chief Judge Dulany Foster in the Criminal Court of Baltimore and relief was denied in a memorandum and order filed on April 28, 1967. This application for Heave to appeal was filed on May 19, 1967.

Applicant raises three contentions:

1. No representation by counsel at a preliminary hearing to determine if the jurisdiction of the Juvenile Court should be waived.
.2. Incompetency of counsel.
■3. Involuntary confession.

The application is granted and the case is remanded as to the third contention; as to contentions one and two, the application is denied for the reasons stated by Chief Judge Foster : in his memorandum.

As to the third contention, petitioner alleged that when he was arrested he was fifteen years old and that his confession was “coerced, cajoled and compelled against his will.” More specifically he alleges that he was denied assistance of counsel, 'that he was not advised of his rights to an attorney, or of his right to remain silent, and that “he was told by the officials that •obtained the statements that the confessions would not hurt him since he was only a juvinile (sic) and that he would help himself in the eyes of the Judge by cooperating with them.”

At his hearing, he made further allegations as to his concession :

“A. During the time this was going on, the time the statement was taken from me, I did not know what I was doing. All of these officers were standing around me; one would ask me a question and the other one would answer. I just said that to keep them from hitting me in my head with books. They had telephone .books and black jacks * * * They told me I couldn't have a lawyer; they told me I couldn’t see my mother unless I did these things.”

When answering this contention of involuntariness of the confession, Chief Judge Foster saw the petitioner as attempting to rely upon the doctrine of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) which was held to be not retroactive in requiring the police to warn the suspect of his rights. Young v. Warden, 245 Md. 76. Thus, Judge Foster stated that the test was merely whether the statement was voluntary. To show that it was, an excerpt from the trial transcript (p.58) was quoted in which petitioner’s attorney engaged in the following dialogue with his client:

“Q: Well, now, after you were taken into custody in school, you made this statement (indicating). Is that right ?
A: Yes.
Q : You read this statement over, did you not ?
A: Yes.
Q: And is that (indicating) your signature?
A: Yes.
Q: Was that statement made by you freely and voluntarily ?
A: Yes.
Q: Did you tell the truth, and was it done freely ?
A: Yes.
Q : Did anybody force you to make a statement ?
A: No.
Q: Did anybody threaten you into making a statement ?
A: No.
O : Nobody threatened you ?
A: No.
Q: Everything you said in here (indicating) you say was the truth. Is that right ?
A: Yes.”

Solely on the basis of this testimony it was held that the statement was voluntary.

While we agree with the basic standard used by the lower court, we do not feel that the lower court has sufficiently answered the allegations of involuntariness. Petitioner’s specific charge of the inducement that “the confessions would not hurt him” but “would help himself in the eyes of the Judge” was not even met by the court. In addition, the dialogue which was taken from the transcript merely brings out conclusions as to voluntariness, it is not an adequate substitute for a full review of the facts and circumstances existing at the time of the statement. It is evidence, however, of the voluntariness of the statement, and must be considered. Likewise, we think that the age of this defendant is an important factor and must also be considered. Haley v. Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948); Biscoe v. State, 67 Md. 6; see Bean v. State, 234 Md. 432. While Miranda, supra, is not retroactive, Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed 2d 882 (1966), it has been held to be a significant factor in determining the issue of voluntariness. Davis v. North Carolina, 384 U. S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); Westjail v. State, 243 Md. 413. See Clewis v. Texas, 386 U. S. 707, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967).

The Supreme Court has looked to the “totality of the circumstances” when examining a confession, Fikes v. Alabama, 352 U. S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957), Clewis v. Texas, supra, as has the Court of Appeals of Maryland in Cunningham v. State, 247 Md. 404 and this Court in Keller v. State, 2 Md. App. 623. We believe that the lower court should, in view of these cases, have made specific fact findings upon the contentions advanced.

It may be that petitioner’s allegations will be shown to be completely fallacious upon further inquiry. But such must be shown since the issue has been raised below and has been considered by the Court.

A question that may be necessary to be determined is that of waiver. Under Md. Code (1967 Repl. Yol.), Art. 27, § 645A (c), an allegation of error would be deemed waived when the allegation could have been made before or at trial or on an appeal, or in previous proceedings, but the petitioner “intelligently and knowingly failed to make” it, unless the failure is excused by special circumstances. Since it might have been possible for applicant to have raised this question previously, an inquiry into this issue by the lower court may be unavoidable. State v. Hance, 2 Md. App. 162, 169; Jones v. Warden, 2 Md. App. 343.

Petitioner asks for a transcript of his trial. Since such a transcript is available and may be useful to the Petitioner in preparing his voluntariness contention, we believe that he should be provided such portions of the transcript as may be necessary. See Long v. District Court of Iowa, 385 U. S. 192, 87 S. Ct. 362, 17 L. Ed. 2d 290 (1966); Roberts v. LaVallee, Warden, 389 U. S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); Dennis v. Warden, 243 Md. 104.

Application granted; case remanded for further proceedings consistent with the viezvs here expressed.

      . “Now all agree that a confession is not admissible in evidence against the prisoner, unless it was freely and voluntarily made. There is no difficulty in regard to the rule itself, the trouble is in the application of the rule to the facts of each particular case, that is, whether it was a free and voluntary confession, or whether it was procured by the influence of another under a hope of favor or advantage if made, or fear of harm or disadvantage of some kind if withheld. It is not, of course, an easy matter to measure in all cases, the force of the influence used, or to decide as to its precise effect upon the mind of the prisoner; much, very much, we may add, depends upon the age, the experience, the intelligence and character of the prisoner.” Biscoe v. State, 67 Md. 6, 7.

      . Maryland has held that an inducement to the effect that a confession would “help” a defendant is sufficient to make a subsequent statement involuntary under certain circumstances. Lubinski v. State, 180 Md. 1. Maryland has also held that a statement by the authorities to the defendant that it would be “better” for him to confess may make a subsequent statement inadmissible. Biscoe v. State, 67 Md. 6; Watts v. State, 99 Md. 30; Dobbs v. State, 148 Md. 34 at 60, 61 (concurring opinion); Edwards v. State, 194 Md. 387; but cf. Ralph v. State, 226 Md. 480. But cases have also said that a mere exhortation to tell the truth would not amount to a prohibited inducement. Deems v. State, 127 M. 624; Kier v. State, 213 Md. 556; Merchant v. State, 217 Md. 61; Burke v. Warden, 239 Md. 701.

      . “* * * we cannot give any weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of the due process of law for which free men fought and died to obtain.” Haley v. Ohio, 332 U. S. 596, 601, 68 S. Ct. 302, 92 L. Ed. 224 (1948).

      . Although age is an important factor, it, in itself, will not be sufficient to make a confession involuntary. State v. Hance, 2 Md. App. 163 and cases cited therein.


text:
    WILLIAM R. LOUDERMILK v. DIRECTOR, PATUXENT INSTITUTION
    [No. 68,
    September Term, 1967.]

      Decided February 2, 1968.

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

This is an application for leave to appeal from an order filed on June 8, 1967, by Judge John E. Raine, Jr., sitting in the Circuit Court for Baltimore County, denying relief sought under the Uniform Post Conviction Procedure Act.

Petitioner was brought to trial on January 17, 1962, before Judge W. Albert Menchine in the Circuit Court for Baltimore County on charges of assault and robbery, and escaping from a place of legal confinement. He pled guilty to these charges and on this same day was sentenced to five years in the Maryland Penitentiary on the escape charge and to nine years on the assault and robbery charge, the sentences to run consecutively.

Petitioner states four grounds for relief in his amended petition filed on January 12, 1967:

(1) His arrest without a warrant was illegal.
(2) The evidence obtained by the result of an illegal search and seizure should have been suppressed.
(3) His escape was lawful since he was confined as a result of an illegal arrest, thus making his plea of guilty and the resulting sentence nullities.
(4) Incompetency of counsel.

A prior habeas corpus proceeding was initiated on September 13, 1963, when applicant filed a petition for a Writ of Habeas Corpus in the Circuit Court for Baltimore County and alleged the following grounds:

1. Illegality of the arrest because:
(a) “The police could not have showed just cause for the arrest
(b) The arrest was made by Baltimore County police officers within the limits of Baltimore City;
2. Illegal search of his apartment; and
3. Incompetency of counsel.

A hearing was held in open court on October 30, 1964, at which time the applicant testified. His attorney later submitted an eight page memorandum of authorities to support the contentions. The petition was denied by Judge Walter M. Jenifer in a well-reasoned eight page memorandum opinion and order filed on February 5, 1965. In it, Judge Jenifer found that applicant’s escape from custody was illegal and a violation of the escape statute, Md. Code (1967 Repl. Vol.), Art. 27, § 139, since he had found that the applicant had been “legally detained and confined.” He also fully considered all of the grounds alleged in the present petition.

The Uniform Post Conviction Procedure Act states that:

“an allegation of error shall be deemed to be finally-litigated * * * when a Court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus * * * unless said decision upon the merits of such petition is clearly erroneous.” Md. Code (1967 Repl. Vol.), Art. 27, § 645A (b).

Since applicant has had a “full and fair hearing” on the merits of his contentions and the decision of Judge Jenifer in the lower court is not clearly erroneous, applicant’s contentions have been finally litigated within the meaning of the Act and cannot be properly raised under the Act today. Despite this, Judge Raine fully considered all of the applicant’s contentions. Thus, the applicant was given more consideration than he was entitled to receive and he has no reason to complain.

Petitioner has also failed to comply with Md. Rule BK 46 (b), which requires that the application for leave to appeal “contain a brief statement of the reasons why the order should be reversed or modified.” For this reason alone, the application should be denied. Ross v. Warden, 1 Md. App. 46; Washington v. Warden, 1 Md. App. 56.

Application denied.


author: Orth, J.,

text:
    ROBERT EDWARD ANDERSON v. STATE OF MARYLAND
    [No. 159,
    September Term, 1967.]

      Decided February 7, 1968.

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

      Can'l A. Durkee for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Gary Huddles, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty of two offenses of grand larceny of an automobile in the Circuit Court for Baltimore County, by the court sitting without a jury. He was sentenced to imprisonment for a term not to exceed 5 years on each conviction, the sentences to run concurrently. The sole contention on this appeal is that the evidence was not sufficient to sustain the convictions.

The first count of indictment No. 31951 charged the appellant with the larceny, on February 9, 1967, of a 1964 Chevrolet Impala of the value of $100 or more belonging to William Hob-son Spencer IV. The evidence before the court showed that about 7:45 P.M. on the date charged Mr. Spencer discovered his automobile, valued at about $1,800, to be missing from the parking lot in the vicinity of the Towson Armory. He had not given anyone permission to remove it. He went to the Baltimore County Police Department and reported the car as stolen. On February 10, 1967 (the time of day is not shown by the evidence), a patrolman of the Baltimore City Police Department, proceeding south on Greenmount Avenue in Baltimore City, saw the car going north on Greenmount Avenue at 25th Street. Noting that it turned east on 25th Street, the patrolman drove around the triangular shaped block at 25th Street and The Alameda and saw the car stopped for a red light. When the light turned green the car turned north on The Alameda. The patrolman pulled behind it and indicated by his red flashing light that he wanted it to stop. The car sped away. He radioed in the license tag and received information that the car was reported stolen. He pursued the car several blocks to Loch Raven Drive and The Alameda where it stopped long enough to allow two occupants to jump out and then again sped away. The chase continued until “it stopped on a lawn” (the evidence does not show how far from the intersection of Loch Raven Drive and The Alameda) and the appellant, who was driving the car, was apprehended.

The appellant concedes that the evidence was sufficient to sustain a conviction of larceny of use (Md. Code [1967 Repl. Vol.], Art. 27, § 349) but urges that it was not sufficient to prove larceny (Code, Art. 27, § 340). We said in Gopshes v. State, 1 Md. App. 396, 398:

“There is no question that one of the factors that distinguishes the two crimes is that in the crime of larceny there must be an intent to deprive the owner of his property permanently, while in the crime of unauthorized use there need only be an intent to deprive the owner of his property temporarily. Fletcher v. State, 231 Md. 190.”

The appellant argues that the State failed to prove criminal intent, claiming that the evidence did not show that he intended to deprive the owner of his ownership in the automobile but only intended to take it “for a ride,” concluding from the direction in which the car was proceeding that it was “heading back toward Towson,” presumably to return it to the owner. He supports his contention by evidence produced by the State with regard to some six other like charges, on which stets were entered at the trial, showing that other automobiles which it was alleged he had stolen, had been abandoned in the general area from which they had been taken, five within a short time of the taking and the sixth eleven days thereafter. Even assuming such evidence of other larcenies to be relevant to the consideration of intent in the instant offense, which we do not decide (see Gorski v. State, 1 Md. App. 200; 1 Wharton's Criminal Evidence [12th Ed.], § 237), we think there was sufficient evidence before the trial court to support a rational inference that the appellant intended to deprive the owner of his ownership in the automobile. We note that there was no direct evidence to the contrary. See Weaver v. State, 226 Md. 431; compare Pachmayr v. State, 1 Md. App. 270. We cannot say that evidence that the appellant may not have had an intent to deprive the owners of other motor vehicles he may have stolen of their ownership by abandoning them compels the trial court to find such lack of intent here. His flight when accosted by the police and subsequently after he stopped to permit his companions to flee certainly has probative value in a determination that he did not intend to return the car to the owner. That the vehicle was recovered within a day of its theft is not conclusive of the intent of the appellant not to deprive the owner of his ownership since the recovery was due to the alertness and efficiency of the police and despite the actions of the appellant. As the Court of Appeals said in Weaver v. State, supra, at page 434:

“The state of one’s mind or scienter is a question of fact. * * * And being subjective in nature, proof of wrongful intent is seldom direct, but is usually inferred from proven circumstances * * (citations omitted).

As we feel that there was evidence or rational inferences therefrom from which the trial court could find the appellant guilty of larceny of Spencer’s automobile beyond a reasonable doubt, its judgment on the evidence was not clearly erroneous and we may not set it aside. McFadden v. State, 1 Md. App. 511; Maryland Rules, 1086. It is for the trial court, not the appellate court, to be convinced beyond a reasonable doubt of guilt. Putinski v. State, 223 Md. 1.

The first count of indictment No. 31952 charged the appellant with the larceny on February 25, 1967 of a 1961 Chevrolet two door hardtop of the value of $100 or more belonging to George Orville Bull Agency, Incorporated. In his testimony, G. Orville Bull said at one point that he noticed that “my car * * * was missing.” When asked specifically who owned the car, he replied, “My corporation—not my corporation but G. R. Agency, soil agency, the corporation of which I am the president.” There is no explanation of this statement and no further proof of the ownership of the automobile. An allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as laid in the indictment is an essential factor to justify a conviction, Petrey v. State, 239 Md. 601; Wersten v. State, 228 Md. 226, although it is recognized that an allegation of ownership of stolen goods is supported by proof of any legal interest or special property in the goods. Richardson v. State, 221 Md. 85. We do not find, in the record before us, proof of the ownership of the automobile as alleged in the indictment sufficient to sustain the conviction. Whether a defendant be guilty or not guilty, he must not be convicted unless all the prerequisites of a valid conviction be established.

Judgment as to indictment No. 31951 affirmed.

Judgment as to indictment No. 31952 reversed and case remanded for a new trial.

      . G. Orville Bull testified that he discovered the automobile to be missing about 11:00 P.M. on February 25, 1967 and that he “received it back” about one hour later. However, a police officer testified that he arrested the appellant, who was driving the automobile, about 11:30 P.M. on February 25, 1967.


text:
    CHARLIE EDWARD BROWN v. STATE OF MARYLAND
    [No. 185,
    September Term, 1967.]

      Decided February 7, 1968.

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

      Stuart B. Hifsch, with whom was Nelson R. Kandel on the brief, for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and I. BlUott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty by a general verdict under a three count indictment charging possession of a narcotic drug, control of a narcotic drug and possession of narcotic paraphernalia in the Criminal Court of Baltimore by the court sitting without a jury and sentenced to imprisonment for a term of three years.

At the trial a “burned” bottle cap, an eye dropper (referred to as an improvised syringe) and a hypodermic needle, all characterized as narcotic paraphernalia, were offered by the State and admitted in evidence over the appellant’s objection. A report of the examination and analysis of the paraphernalia by a United States chemist, admitted without objection, showed that the bottle cap contained traces of heroin hydrochloride but no “prohibited narcotic drugs were detected” with respect to the eye dropper and hypodermic needle. The appellant contends on appeal that the narcotic paraphernalia was “illegally obtained” and, therefore, “erroneously admitted into evidence.”

Officer John Sewell, a member of the Narcotic Unit of the Baltimore City Police Department, while in the vicinity of the intersection of Pennsylvania Avenue and Smithson Street, observed several known drug addicts and peddlers standing on the corner. He went into a bar located on the northwest corner of that intersection and proceeded directly to the men’s rest-room for no other reason than to make a routine check. Someone, unknown to the officer, was leaving the rest-room as the officer entered. The toilet in the rest-room was within a booth, partitioned off from the rest of the room. The entrance to the booth was through a doorway on which was hung a “swinging” door which the officer estimated to be about 5 feet 5 inches high. He saw the appellant, whom he knew to be a drug addict, standing in the booth. Going close to the door of the booth “I just stuck my head over. I didn’t have to tip toe, or get up on my toes.” The officer was “about 6 feet tall.” By sticking his head over the door the officer saw the appellant “fixing his trousers * * * he had one hand somewhere on his trousers and * * * one hand was coming over the paraphernalia, but I didn’t actually see it in his hands.” The paraphernalia was on top of the commode on the opposite side from where the handle used to flush the bowl was located, but the officer did not see the appellant place it there. The officer said, “Well, Mr. Brown,” and the appellant said, “Oh my God, I shouldn’t have taken this from (given a name the officer did not recall). You got me this time.” The officer seized the paraphernalia and arrested the appellant. The mother of the appellant, testifying on his behalf, said that about two months before the trial he had been in Springfield State Hospital and at his request she got him admitted to “Lexington Kentucky for treatment”. He was there 30 days. She attempted to get him readmitted but he did not want to go back, stating, about a week before his arrest, that he was “well now”. Shortly after his arrest she was informed by the authorities at Lexington that they would again accept him.

If the seizure of the evidence objected to was not unreasonable, it was properly admitted. The seizure of the evidence would not be unreasonable, even though without a search warrant, if the arrest of the appellant was lawful, for then the seizure would be an incident to a lawful arrest. David v. State, 1 Md. App. 666. The arrest of the appellant would be lawful, even though without a warrant of arrest, if the arresting officer had probable cause to believe that a felony had been committed and that the appellant had committed the felony, Boone v. State, 2 Md. App. 479, or if the appellant committed a misdemeanor in the presence of the arresting officer, Scott v. State, 1 Md. App. 481. But the facts and circumstances showing probable cause must come lawfully within the knowledge of the officer, Johnson v. State, 2 Md. App. 300, and the commission of the misdemeanor in the officer’s presence must be lawfully observed by him. Dailey v. State, 234 Md. 325; otherwise the arrest will not support the introduction of the evidence.

It is clear from the testimony of the officer that he saw the narcotic paraphernalia and the actions of the appellant by sticking his head over the door to the toilet stall. Thus there was. a physical intrusion into the area and the question is whether this constituted a trespass or unlawful entry so as to make the-observation unlawfully obtained. This question must be resolved,, not upon the technicality of a trespass as a matter of State or local law but upon the reality of an actual intrusion into a constitutionally protected area. See Silverman v. United States, 365 U. S. 505. We believe that a person who enters an enclosed', stall in a public toilet, with the door closed behind him, is entitled, at least, to the modicum of privacy its design affords, certainly to the extent that he will not be joined by an uninvited guest or spied upon by probing eyes in a head physically intruding into the area. No less than a person in a business office (Silverthorne Lumber Co. v. United States, 251 U. S. 385), in a friend’s apartment (Jones v. United States, 362 U. S. 257;; Dorsey and Gladden v. State, 2 Md. App. 40), or in a taxicab (Rios v. United States, 364 U. S. 253), a person in an enclosed stall in a public toilet may rely upon the protection of the Fourth Amendment. The nature of the place, the type of criminal activities that can and do occur in it, the ready availability therein of a receptacle for disposing of incriminating evidence and the-right of the public to expect that the police will put a stop to-its use as a resort to crime are not sufficient to permit the search under the circumstances here present. See Bielicki v. Superior Court, 57 Cal. 2d 602, 371 P. 2d 288; compare Smayda v. United States, 352 F. 2d 251 (1965). Nor may the search-be held reasonable because the officer knew that the appellant-was a narcotic addict and found him in a general area frequented by other addicts and drug peddlers. We know of no Supreme-Court decision or decision of this State which sustained a search upon the sole ground that officers reasonably expected to find’ evidence of a particular crime, even though they voluntarily-confined their activities to the least intrusive means consistent, with that end. See Davids v. State, 208 Md. 377.

We are compelled to hold that, in the instant case, the arrest of the appellant was unlawful for the reason that the knowledge of the facts and circumstances showing probable cause-with regard to the felony and the observation of the commission-of the misdemeanor were come by as a result of a trespass by-the arresting officer—a physical intrusion into a constitutionally protected area. The arrest being unlawful, the seizure of the evidence was unreasonable and it was error to admit it in evidence.

The appellee suggests that the evidence was properly seized under the provisions of Md. Code (1957) Art. 2B, § 190 authorizing any peace officer of the county or city in which the place of business is located to inspect and search, at all hours, without a warrant, any premises in which alcoholic beverages are authorized to be kept or sold under a duly issued license. Under this statute a tavern owner’s assent to inspection and search of the premises is valid, but it does not authorize officers to search patrons found therein. Davids v. State, supra. Further the right of search and seizure granted by the statute is limited to premises and property in the possession and control of the owner and licensee and “premises” means that part and only that part of the premises in which alcoholic beverages are sold as in the possession of the owner or licensee. Miller v. State, 174 Md. 362; cf. Tucker v. State, 244 Md. 488. We think that the toilet stall was, under the circumstances existing, without the limitation of the statute at the time of the seizure and that the circumstances of the seizure were tantamount to a search of a patron. We note also that although the premises are referred to in the testimony as the “Alhambra Bar”, there is no evidence that alcoholic beverages were authorized to be kept or sold therein under a duly issued license. The statute does not apply to premises on which alcoholic beverages are sold without a license. Turner v. State, 195 Md. 288. The suggestion of the appellee is without merit.

Judgment reversed; case remanded for a new trial.

      . The transcript of the trial reads that the officer said “* * * I would have to get that close to the door [indicating]” but the indication is not explained.

      . Unlawful possession and unlawful control of a narcotic drug, Md. Code (1967 Repl. Vol.) Art. 27, § 277) are felonies. Unlawful possession of narcotic paraphernalia (Md. Code, supra, Art. 27, § 297) is a misdemeanor. Md. Code, supra, Art. 27, § 300 (a) and (b).

      . We are aware that the Supreme Court in Katz v. United States, 389 U. S. 347, 88 Sup. Ct. 507, 19 L. Ed. 2d 576 (1967), concerned with the admissibility of evidence of telephone conversations overheard by FBI agents who had attached an electronic listening and recording device to the outside of a public telephone booth, concluded that “* * * the underpinnings of 0¡instead (Olmstead v. United States, 277 U. S. 438) and Goldman (Goldman v. United States, 316 U. S. 129) have been so eroded by our subsequent decisions that the “trespass” doctrine there enunciated can no longer be regarded as controlling,” as the Fourth Amendment protects people and not simply “areas” against unreasonable searches and seizures. But while the “trespass” doctrine may no longer be controlling so as to permit the admission of evidence on the ground that when it was obtained there was no physical intrusion into a constitutionally protected area, we do not construe Kats as overruling the rule that evidence is inadmissible because obtained by a physical trespass or actual intrusion into a constitutionally protected area. As we think that Kats does not preclude and is not inconsistent with our holding we do not consider its applicability to the instant case.


text:
    PAUL MARTIN HAMMER v. STATE OF MARYAND
    [No. 198,
    September Term, 1967.]

      Decided February 7, 1968.

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

      James B. Berry, Jr., for appellant.

      H. Fdgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Dickee M. Howard, Assistant Attorney General, Arthur A. Marshall, State’s Attorney for Prince George’s County, and Joseph J. Bonner, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was 16 years of age when he was arrested on April 10, 1967 in Prince George’s County, Maryland, driving an automobile which had been reported as stolen. After a hearing on April 14, 1967 the Circuit Court for Prince George’s County, sitting as a juvenile court, waived jurisdiction and ordered the appellant held for action under “the regular Criminal Procedure,” pursuant to the provisions of “Section 54 of Article 26 of the Annotated Code of Maryland, 1957, edition.” The appellant was not represented by counsel at this hearing. On June 5, 1967, he was tried in the Circuit Court for Prince George’s County by a jury under a warrant charging him with the larceny of the use of a motor vehicle, found guilty and, after a presentence investigation, sentenced to imprisonment for an indeterminate term not to exceed 4 years. On June 26, 1967 the court ordered him to be confined to Patuxent Institution “for the purpose of determining whether or not he is a defective delinquent.”

On appeal the appellant contends that “there was such a denial of due process of law as to void the waiver of juvenile jurisdiction so that the trial court did not have jurisdiction to try the case.”

The statement of facts in the appellant’s brief contains the following :

“On April 14, 1967, the Juvenile Courts for Prince George’s County had a preliminary hearing in which the Master made his recommendation for a waiver of jurisdiction and the court then waived jurisdiction and bound the defendant over for trial as an adult.
No counsel was present at this waiver proceeding and the defendant did not testify, produce witnesses in his own behalf nor was he advised that he could request counsel.”

The waiver order is a part of the récord before us, but none of the proceedings regarding the hearing resulting in the order are therein contained. However, the State, although pointing this out, adopted the appellant’s statement of facts and, for the purposes of decision, we assume the facts as to the waiver hearing to be correct. The appellant concludes from these facts that he was denied due process of law and bases his conclusion on Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, decided March 21, 1966 and In Re Gault, 387 U. S. 1, 87 S. Ct. 1428, decided May 15, 1967. Kent was clearly concerned with the interpretation of the Juvenile Court Act of the District of Columbia and its effect, therefore, is limited to that jurisdiction. State v. Hance, 2 Md. App. 162, 167. The Supreme Court declined to rest its decision on constitutional grounds. 383 U. S. at 556. Gault is a constitutional decision, limited to proceedings which determine juvenile delinquency. We stated in Hance that it is unclear whether it establishes constitutional principles applicable to waiver of jurisdiction proceedings (2 Md. App. at 167), but we assume for the purpose of decision here, without deciding, that the rules articulated in Gault are applicable in such state proceedings. We held in Hance that Gault is not retroactive. The appellant recognizes that his waiver hearing preceded the decision in Gault but urges that the Gault rules are applicable to him because his criminal trial was subsequent to that decision. Thus it is necessary that we determine the standard of retroactivity, mindful of the rule that the federal constitution neither requires nor prohibits retroactivity, Linkletter v. Walker, 381 U. S. 618, and that the courts may, in the interest of justice, make a rule prospective where the exigencies of the situation require. Various standards of retro-activity have been determined by the Supreme Court. See Stovall v. Denno, 388 U. S. 293; Johnson v. New Jersey, 384 U. S. 719; Tehan v. Shott, 382 U. S. 406. Conscious of the integrity of juvenile procedures as have been followed in this State, aware of the reliance on pre-Gault rules in juvenile proceedings and recognizing the necessity to avoid a disruptive effect on the administration of justice, we hold that the rulings in Gault, with respect to waiver of jurisdiction proceedings, shall apply, assuming they do apply, only to cases in which a hearing for determination of waiver in the court having jurisdiction to waive, first began after May 15, 1967. Encompassed in this holding is that the rulings in Gault do not apply, with respect to waiver proceedings, to cases in which any subsequent hearings for determination of waiver are held, even though after May 15, 1967, as a result of an appeal from an order of the hearing court, dispositive of the issue, passed at a first hearing which began on or before May 15, 1967. Also by our holding the rulings in Gault do not apply, with respect to waiver proceedings, to cases in which any subsequent hearings for determination of waiver are held, even though after May 15, 1967, upon grant in the discretion of the hearing court, when the first hearing on the issue began on or before May 15, 1967. By our holding, the rulings in Gault were not available to the appellant and we see no denial of due process from the record before us in the waiver of jurisdiction by the Circuit Court of Prince George’s County sitting as a juvenile court. We find that the waiver was validly exercised and that the court in which the appellant was tried for the criminal offense had jurisdiction.

The appellant also alleges pro se that his trial counsel was “grossly negligent.” This point was not tried and decided below and is not properly before us. Maryland Rules, 1085. We have consistently refused to consider the question of the competency of trial counsel under such circumstances for reasons as set forth in Harris v. State, 2 Md. App. 408. See also McFadden v. State, 1 Md. App. 511; Sherrod v. State, 1 Md. App. 433; Howard v. State, 1 Md. App. 379; Charles v. State, 1 Md. App. 222.

Judgment affirmed.

      . In Montgomery County two judges of the People’s Court are judges for juvenile causes only. Md. Code (1966 Repl. Vol.), Art. 36, § 73. Any interested party aggrieved by any order may appeal therefrom to the Circuit Court of Montgomery County where the case shall be tried de novo. § 87. Such cases are within our holding.


text:
    DICK THOMAS a/k/a RICHARD THOMAS v. STATE OF MARYLAND
    [No. 1,
    September Term, 1967.]

      Decided February 14, 1968.

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

      Thomas M. O’Malley, with whom was Michael F. X. Dolan on the brief, for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Allen S. Handen, State’s Attorney for Calvert County, on the brief, for appellee.
   Per Curiam.

The Appellant, Dick Thomas, was convicted of assault with intent to murder, common-law assault and carrying a deadly weapon by a jury in the Circuit Court for Calvert County, on November 28, 1966, Judge Perry B. Bowen, Jr. presiding. He was sentenced to concurrent eight year terms in the Maryland Penitentiary under the assault and assault with intent to murder convictions and to a two year concurrent term under the deadly weapon charge.

The record indicates that on April 16, 1966, a shooting match erupted in a public tavern in Calvert County. A total of fourteen bullet wounds were inflicted upon the Appellant and four other persons. Evidence produced by the State showed the Appellant to be both instigator and aggressor. Other evidence indicated the aggressor to be Howard Chase, Jr., who was struck by several of the bullets fired from the Appellant’s gun.

A Maryland State Trooper testified that on the morning after the crime he located the Appellant in the District of Columbia General Hospital and there obtained his written confession which was admitted into evidence, over objection, at trial. The Appellant here challenges the admissibility of that confession.

The following testimony was elicited from the Trooper by the State on direct examination:

“Q. Now prior to taking the statement did you threaten him or promise him in any fashion? A. No sir, I didn’t.
Q. Did any one in your presence threaten or promise him in any fashion? A. No sir.
Q. Did you advise him of his right to counsel? A.
Yes sir, I advised him that he had the right to counsel.
Q. Did you advise him that anything that he said, may be used against him in Court? A. Yes sir, I did.
Q. Now sir, did he have an opportunity to read the statement ? A. Yes sir, he did.
Q. And after reading the statement, did he sign it?
A. Yes sir, he did.”

On cross examination the following was elicited from the Trooper:

“Q. [By Mr. O’Malley] And what did you tell him in regards to the legal counsel? A. I advised him that he had the right to obtain legal counsel, I don’t remember the exact words, it is in the statement.”
“Q. [By Mr. O’Malley] Did he say he had a lawyer?
A. I don’t recall whether he did or not.”
* * =1=
“Q. [By Mr. O’Malley] Do you recall asking him whether or not he wanted a lawyer? A. I don’t believe so, I may have, I can’t answer that for sure.”

The confession here involved was given on April 16, 1966, at a time when the trooper could not have known of the additional safeguards surrounding confessions which were to be announced by the Supreme Court of the United States on June 13, 1966 in Miranda v. Arizona, 384 U. S. 436. While these safeguards were not accorded retroactivity, Johnson v. New Jersey, 384 U. S. 719 and Westfall v. State, 243 Md. 413, it is clear that they prevail in this case, the trial of which first began after June 13, 1966. But see, Boone v. State, 3 Md. App. 11. Thus, the Appellant’s confession, introduced at his trial on November 29, 1966, was properly admissible only if it was affirmatively shown that its taking was surrounded by the Miranda safeguards. In the words of Chief Justice Warren (at p. 478) :

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

It is apparent from the record excerpts set out above that the State failed to show that the Appellant was advised “that if he cannot afford an attorney one would be appointed for him prior to any questioning if he so desires;” nor was he advised of his “right to the presence of an attorney” during the interrogation. This, in our opinion, was the omission of a crucial warning and made the use of the confession in the trial below constitutionally impermissible. While there may have been evidence, other than the confession, tending to support the jury’s finding of guilty, it is apparent that the admission of the confession so tainted the proceedings that the Appellant must be afforded a new trial. Jackson v. Denno, 378 U. S. 368. Our decision here is in accordance with the holding of this Court in Robinson v. State, 1 Md. App. 522.

Since the judgment of the lower court must be reversed we do not reach the other contentions raised by the Appellant. It should be noted, however, that the jury found the Appellant to be guilty of assault with intent to murder and common-law assault. On the facts of this case, the latter constituted a lesser included offense in the crime of assault with intent to murder, inasmuch as the facts necessary to prove the assault, in this instance, were essential ingredients of the major crime. Chittum v. State, 1 Md. App. 205; Burks v. State, 1 Md. App. 81. On the other hand, the lesser charge of carrying a deadly weapon does not merge with the greater offense of assault with intent to murder since the essential ingredients of the former are not necessarily included in the latter. Sherrod v. State, 1 Md. App. 433.

Judgment reversed and case remanded for new trial.


text:
    CURTIS C. JOHNSON v. STATE OF MARYLAND
    [No. 5,
    September Term, 1967.]

      Decided February 14, 1968.

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

      John R. Hargrove for appellant.

      William T. S- Brisker, Special Assistant Attorney General with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State!s Attorney for Baltimore City, and James B. Dudley, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

On October 4, 1966 the appellant, a boy 14 years of age at the time of the commission of the crime for which he was convicted, was found guilty of murder in the first degree in the Criminal Court of Baltimore, by the court sitting without a jury and sentenced to imprisonment for the balance of his natural life.

The circumstances of the commission of the crime and its perpetration by the appellant are not disputed. On November 10, 1965, about 8:00 P.M. the appellant seized the purse of a woman, disclosed by hospital records and the autopsy report to have been 75 years of age, 5 feet 3 inches in height and weighing 91 pounds, while she was walking on Cathedral Street near Centre Street. In resisting the robbery she was thrown to the gound, sustaining fractures of the pelvis, arm and hand and lacerations about the face and head, as a result of which she developed lobar pneumonia and died on November 21, 1965. The appellant took the stand and in the course of his testimony admitted that he had “snatched the purse.”

On appeal the appellant contends that:

1. he was placed twice in jeopardy;
2. evidence relating to the robbery was inadmissible.

As the basis for both the contentions, the appellant states that a petition alleging that he was a delinquent child was filed in the Circuit Court of Baltimore City having jurisdiction in juvenile causes on November 12, 1965, on which date a hearing was held and the appellant was determined to be a delinquent child on the facts of the robbery. He was ordered detained at Boy’s Village pending a social investigation and further hearing. He was indicted by reason of the death of the robbery victim and the matter before the juvenile court was dismissed. Evidence of the proceedings in the juvenile court were not proffered at the trial of the substantive offense and the question presented by the contentions were not raised before or tried and decided by the trial court. The questions were raised in argument on hearing on a motion for a new trial but the denial of that motion is not before us. McCoy v. State, 236 Md. 632. Not being tried and decided by the lower court before or at the trial, the questions need not be considered by us on appeal unless they invoke matters of the jurisdiction of the trial court, which are always before this Court, where jurisdiction cannot be conferred by waiver or consent of the parties. Tate v. State, 236 Md. 312; Dortch and Garnett v. State, 1 Md. App. 173; Crum and Dunbar v. State, 1 Md. App. 132; Whitmer v. State, 1 Md. App. 127; Maryland Rules, 1085. Counsel for the appellant argued before us that the defense of double jeopardy goes to the jurisdiction of the trial court. We see no need to decide that point, preferring to treat the question as properly before us on the assumption, for the purpose of decision only, that the matter is jurisdictional. On this assumption and on the further assumption that the juvenile proceedings were in fact as stated, we shall consider it.

DOUBLE JEOPARDY

The appellant alleges that he was placed in jeopardy by the determination that he was a delinquent child in the juvenile proceedings on evidence that he committed the robbery and that he was put twice in jeopardy by the conviction of murder in the first degree as committed in the perpetration of the same robbery. A factual situation comparable to the instant case was presented to the Court of Appeals in Moquin v. State, 216 Md. 524 and the same contention raised. In Moquin the defendant was found to be a delinquent child in the Juvenile Court for Montgomery County on petition that he set fire to houses and committed an assault. He was committed to a psychiatric institution and the case was continued pending further order of the court. He eloped, his commitment was rescinded and the juvenile court waived jurisdiction. He was thereupon charged in criminal informations with arson, burglary and assault with intent to murder and tried, convicted and sentenced after motions to dismiss on the ground that the prosecutions would place him twice in jeopardy for the same offenses, relying on the proceedings in the juvenile court, were denied. The Court said, page 528 that the concept of double jeopardy “* * * clearly contemplates that the action which bars a second prosecution must be one instituted in a court which has the power to convict and punish the person prosecuted for his criminal conduct.” Stating that the rule “* * * is applicable only when the first prosecution involves a trial before a criminal court or at least a court empowered to impose punishment by way of fine, imprisonment or otherwise as a deterrent to the commission of crime,” (p. 528), it found that the juvenile court did not subject the defendant to the risk of those penalties:

“The juvenile act does not contemplate the punishment of children where they are found to be delinquent. The act contemplates an attempt to correct and rehabilitate. Emphasis is placed in the act upon the desirability of providing the necessary care and guidance in the child’s own home, and while the act recognizes that there will be cases where hospital care or commitment to a juvenile training school or other institution may be necessary, this is all directed to the rehabilitation of the child concerned rather than punishment for any delinquent conduct.” 216 Md. at 528.

It concluded that an adjudication of delinquency in the Juvenile Court for Montgomery County did not bar the defendant’s prosecution in the circuit court. We cannot distinguish, in this frame of reference, the act conferring jurisdiction on the Juvenile Court for Montgomery County and the act conferring jurisdiction on the Circuit Court of Baltimore City.

The appellant argues further that proof of the commission of the robbery was determinative both of his being found to be a delinquent child and being found guilty of murder in the first degree. Therefore, he alleges, the offenses are not separate and distinct, but “merged in such a manner as to constitute one offense.” Thus, he concludes, being found to be a delinquent child precludes prosecution for murder. This argument is predicated upon two presumptions: (1) that being a delinquent child is a crime; and (2) that the elements of its proof are necessary ingredients of the crime of murder in the first degree under the facts of this case. The juvenile act clearly provides that the charge of delinquency is not a charge of a commission of a crime and that a child found to be delinquent shall not be deemed a criminal. Charter and Public Local Laws of Baltimore City, stipra, Art. 4, § 242 and § 249. But even assuming that it is a crime and further assuming that the elements of its proof are necessary ingredients of the crime of murder in the first degree i (which we specifically do not decide), the appellant reaps no benefit. The juvenile court had exclusive jurisdiction over the appellant in the determination of his delinquency and no jurisdiction to try him for murder. Charter and Public Local Laws of Baltimore City, supra, Art. 4, § 240 (d) (1). He was never placed in jeopardy for the greater offense by being “prosecuted” for the lesser “offense” before a court having no jurisdiction to try him for the greater offense. Bennett v. State, 229 Md. 208.

The appellant also alleges that an adult tried before a juvenile court can assert the defense of double jeopardy in a subsequent criminal proceeding, citing Bennett v. State, supra, as authority. It follows, he claims, that to prohibit the defense to a child would deny that child due process of law or equal protection of the laws. Again assuming, but not deciding, that such defense is so available to an adult, the distinction between the adult and the child is obvious. The adult, unlike the child, is subject to punishment in juvenile proceedings by fine or imprisonment. Charter and Public Local Laws of Baltimore City, supra, Art. 4, § 243.

The appellant urges that the applicability of the rule of double jeopardy in the instant case must be considered in the light of Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, decided March 21, 1966 and In re Gault, 387 U. S. 1, 87 S. Ct. 1428, decided May 15, 1967. He claims that “the matter of Juvenile Courts and its procedures, as well as the rights of juveniles have been tremendously affected” by those cases. The thrust of his argument is that Kent and Gault “have clearly abolished” the concept that a delinquent child is not punished and that proceedings against such child are directed to his rehabilitation. He says that those cases “have clothed the juvenile with virtually all of the constitutional protections afforded an adult in a criminal case,” and a “juvenile matter under today’s standards is the same as another criminal case.” He urges on this premise that the rationale of Mo quin is no longer appropriate and its decision not controlling in the appellant’s case. With regard to Kent we found in State v. Hance, 2 Md. App. 162, that it was clearly concerned with the interpretation of the Juvenile Court Act of the District of Columbia and its effect, therefore, is limited to that jurisdiction. The Supreme Court declined to rest its decision on constitutional grounds. 383 U. S. at 556. With regard to Gault it seems that the appellant would have us apply its rationale or philosophical basis, as he interprets it, but not its rulings, to his juvenile proceedings. For if its rulings as to notice of charges, right to counsel, confrontation, self-incrimination and cross-examination were so applied, it may well be that the determination that he was a delinquent child would be, by those rulings, invalid. If invalid the appellant would not have been jeopardized thereby. See Boone v. State, 3 Md. App. 11. We see no logic in the position that Gault is available to the appellant as to its rationale but not as to its rulings and find that Gault was in no wise available to the appellant. Both the juvenile court proceedings against the appellant and his trial in the criminal court were before the decision in Gcmlt but the appeal from the judgment by the criminal court was pending at the time of that decision. We held in State v. Hance, supra, that Gault was not retroactive, 2 Md. App. at 167, and we established the standard of its retroactivity with, respect to waiver hearings in juvenile proceedings (on the assumption, but not the decision, that its rulings applied to such hearings) in Hammer v. State, 3 Md. App. 96. For the purpose of decision in the instant case we must specify the standard of the retroactivity of Gault with respect “to proceedings by which a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.” (87 S. Ct. 1436). For such purpose, with respect to such proceedings, we hold that the rulings in Gault apply only to cases in which such proceedings first began, in the court having jurisdiction to make such determination, after May 15, 1967. In so holding we are again mindful of the rule that the federal constitution neither requires nor prohibits retroactivity, Linkletter v. Walker, 381 U. S. 618, and that the courts may, in the interest of justice, make a rule prospective where the exigencies of the situation require. Thus, Gault is not available to the appellant.

We have made the following findings in the instant case:

(1) the determination that the appellant was a delinquent child was not a prosecution before a criminal court or a court empowered to impose punishment and being a delinquent child is not a crime ;
(a) even assuming that being a delinquent child is a crime, the fact of the appellant’s “prosecution” on such a charge before a court having no jurisdiction to try him for murder did not put him in jeopardy on a murder charge;
(2) the appellant was not put in jeopardy by juvenile proceedings against him merely because an adult may be put in jeopardy by proceedings against such adult in a juvenile court; there is a valid distinction between a child and an adult in such circumstances —the adult is subject to punishment by fine or imprisonment and a child is not;
(3) neither the rulings in Kent nor Gault were available to the appellant.

In view of these findings we hold that the prosecution and conviction of the appellant in the criminal court did not put him twice in j eopardy.

THE ADMISSIBILITY OP THE EVIDENCE RELATING TO THE ROBBERY

The question raised by the contention that evidence relating to the robbery was not admissible in the criminal trial because presented previously in the juvenile court is clearly not jurisdictional. No objection to the evidence for the reason here advanced was made at the trial and the appellant admitted in his testimony that he had “snatched the purse”. The question, not being tried and decided at the trial below, is not properly before us. Maryland Rules, 1085. In any event, we find the contention to be without merit. In support of his contention, the appellant cites the Charter and Public Local Laws of Baltimore City, Flack (1949), Art. 4, § 249. This section, dealing with the disposition of a child appearing before the court under juvenile proceedings, concludes by a paragraph as follows (the appellant quoted only the last sentence) :

“No adjudication by the Judge upon the status of any child shall operate to impose any civil disabilities, nor shall any child be deemed a criminal by reason of such adjudication. The proceedings with reference to a child or any evidence given before the Judge shall not be admissible as evidence against the child in any case or proceedings in any other court.”

The appellant construes these provisions to mean that evidence relating to the robbery was not admissible in the criminal trial because evidence of the same robbery was presented to the juvenile court in the determination that he was a delinquent child. Although the point was not specifically raised in Moquin v. State, supra, we feel that the decision in that case precludes the interpretation of the statute urged by the appellant. Although in Moquin the juvenile proceedings in question were in Montgomery County, the statute pertaining to such proceedings contains provisions comparable to the local law above quoted. Md. Code (1966 Repl. Vol.), Art. 26, § 83 (e). It is obvious that Moquin was convicted in the criminal court on evidence of acts which were also the basis of his being found to be a delinquent child in the juvenile court and the judgment was affirmed. The general law on juvenile causes contains provisions in the exact language of the local law of Baltimore City above set forth. Md. Code (1966 Repl. Vol.), Art. 26, § 61. These provisions make it impermissible to attack the credibility of a witness by asking him about his past record of juvenile offenses, directly, Braun v. State, 230 Md. 82, or indirectly, Westfall v. State, 243 Md. 413. However, they are no bar to the consideration of the juvenile record in evaluating the individual’s antisocial tendencies and status as a defective delinquent. Gray v. Director, 245 Md. 80; Rice v. Director, 238 Md. 137. In both Gray and Rice, we think it clear that the Court of Appeals construed the sentence, “The proceedings with reference to a child or any evidence given before the Judge shall not be admissible as evidence against the child in any case or proceeding in any other court” within the context of the sentence immediately preceding it—“No adjudication by the Judge upon the status of any child shall operate to impose any civil disabilities, nor shall any child be deemed a criminal by reason of such adjudication”, and we so construe it in the instant case. It is apparent that the admission of the evidence relating to the robbery at the criminal trial did not result in imposing civil disabilities on the appellant or in deeming him a criminal by reason of his adjudication as a delinquent child. We again point out that, at the criminal trial, no evidence was offered of the adjudication of the appellant as a delinquent child and no reference was made to the proceedings in the juvenile court. We see no reason why the evidence of which the appellant now complains was not admissible.

Judgment affirmed.

      . An indictment was also returned against the appellant charging him with robbery but was dismissed upon motion by the appellant on the ground that the Circuit Court of Baltimore City having jurisdiction in juvenile causes had not waived jurisdiction. That Court has no jurisdiction over a “child” who has committed an act which, if committed by an adult, would be a crime punishable by death or life imprisonment. Charter and Public Local Laws of Baltimore City, Flack (1949), Art. 4, § 240 (d) (1). Thus in such case, waiver is not required. See Bean v. State, 234 Md. 432. (The provisions of Md. Code (1966 Repl. Vol.), Art. 26, Sections 51-71 will not apply to the City of Baltimore until June 1, 1969. Chapter 127, Acts 1966).

      . The statement of facts set forth in the briefs of the appellant and the State agree as to the juvenile proceedings although it appears that there is no transcript of the hearing before the juvenile court.

      . For a discussion of the double jeopardy rule applicable in Maryland see Boone v. State, 3 Md. App. 11.

      . In view of our finding that Gault did not apply to the juvenile proceedings against the appellant, we need not decide whether, under it, proceedings for the determination of juvenile delinquency are now criminal in nature. We note that the Supreme Court discussed the basis whereby proceedings involving juveniles were civil not criminal (87 S. Ct. at 1438) and recognized that one of the important benefits of such proceedings was that they avoid classifying the juvenile as a “criminal” and permitted classifying him as a “delinquent.” It said, “There is, of course, no reason why this should not continue.” (at 1441). But it found that, “Failure to observe the fundamental requirements of due process has resulted in instances * * * of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy.” (at 1439). Due process, it said, requires notice of charges “ * * * which would be deemed constitutionally adequate in a civil or criminal proceedings.” (at 1446-1447). With regard to right to counsel it said that a proceeding “ * * * where the issue is whether the child will be found to be a ‘delinquent’ and subjected to loss of his liberty for years is comparable in seriousness to a felony prosecution,” (at 1448) and that such proceedings “ * * * must be regarded as ‘criminal’ for the purposes of the privilege against self-incrimination.” (at 1455).