text:
    WARNER WALTER HILL v. DIRECTOR, PATUXENT INSTITUTION
    [No. 168,
    September Term, 1967.]

      Decided July 26, 1968.

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

The application of Warner Walter Hill for leave to appeal from an order of Judge Shirley B. Jones, sitting in the Criminal Court of Baltimore, denying relief prayed in the applicant’s first petition under the Uniform Post Conviction Procedure Act is denied for the reasons stated in the memorandum opinion of Judge Jones.

We note, however, that Judge Jones stated: “In order to obtain relief under the complaint of incompetency of counsel, it must be established that counsel’s representation was so inadequate as to amount to a farce and no representation at all,” citing Waller v. Director, 244 Md. 229. This Court said, in Green v. Warden, 3 Md. App. 266, 269:

“Although this was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. Warden, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded ‘a genuine and effective representation’. Turner v. State, 303 F. 2d 507 (4th Cir. 1962); Turner v. State, 318 F. 2d 852 (4th Cir. 1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65”.

Even under this more comprehensive rule, we do not find, on the record before us, that the trial counsel for the applicant was incompetent.

Application denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NAPOLEON MARTIN v. WARDEN, MARYLAND PENITENTIARY
    [No. 169,
    September Term, 1967.]

      Decided July 26, 1968.

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

The application of Napoleon Martin for leave to appeal from an order of Judge J. Harold Grady, presiding in the Criminal Court of Baltimore, denying relief prayed in a petition under the Uniform Post Conviction Procedure Act is denied for the reasons set forth by Judge Grady in the memorandum accompanying the order.

We note, however, that the test of the inadequacy of counsel is no longer whether the representation was so deficient as to make a farce out of the trial. The rule followed by this Court is that counsel is incompetent when under all the circumstances of the particular case the accused has not been afforded a genuine and effective representation. Green v. Warden, 3 Md. App. 266. Judge Grady found that the petitioner was afforded “adequate and effective representation” and on the record before us, applying the more comprehensive rule, we agree.

Application denied.


author: PER Curiam.

text:
    PAUL LEE WILLIAMS v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 171,
    September Term, 1967.]

      Decided July 26, 1968.

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

The applicant’s petition for relief under the Uniform Post Conviction Procedure Act was filed on 7 June 1967. Relief was denied on 6 November 1967 by Judge H. Kenneth Mackey, presiding in the Circuit Court for Cecil County, after an evidentiary hearing at which the applicant was represented by appointed counsel. The same day copies of the order denying relief and the memorandum accompanying it were distributed, and it appears that the applicant received such copies. Application for leave to appeal, dated 30 January 1968, was made to the Court of Appeals, received by it on 1 February 1968, forwarded to this Court and received by it on 2 February 1968. The application for leave to appeal was not filed within 30 days from the passage of the order appealed from as required by Md. Rule, BK 46a and must therefore be denied. Bynum v. Warden, 240 Md. 631.

Application denied.


author: Murphy, C. J.,

text:
    ROY LEE HYMAN v. STATE OF MARYLAND
    [No. 339,
    September Term, 1967.]

      Decided July 29, 1968.

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

      Bernard A. Greenberg for appellant.

      H. Edgar Lents, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Hilary D. Cap-tan, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was charged in a six-count indictment in the Criminal Court of Baltimore with (1) breaking the storehouse of Robert Peltzer on July 21, 1967 with intent to steal goods of the value of $100.00 or more, (2) with breaking said storehouse with intent to steal goods of a value less than $100.00, (3) with breaking said storehouse and stealing certain goods of a value of $5.00 or upwards, said goods being expressly particularized in such count to include a number of guns identified by serial number, ammunition, and other items, (4) with being a rogue and vagabond, (5) with grand larceny of the items specified in the third count of the indictment, and (6) with receiving the particularized stolen goods. One of the guns specified as having been stolen was a “PIC Serial % 125559” of the value of $10.50.

The owner of the victimized premises did not appear at the trial, his testimony being the subject of a stipulation that if he were to testify he would state that his store was broken into on July 21, 1967 and that “various guns” were stolen therefrom,, amounting in value, collectively, to over $100.00, and that a .22 caliber revolver, Serial % 125559, was registered in his name.. It was not stipulated that this gun was taken in the burglary.

Officer William Stanley of the Baltimore City Police Department testified that on August 5, 1967, he responded to a call to> a home in Baltimore City, at which time he observed the appellant “sitting in a living room chair with a gun in his hand.” The officer testified that he placed appellant under arrest and forwarded the gun to the crime laboratory. After testifying that “records” are kept at the crime laboratory, and that there is a Departmental “offense report” of the crime, the officer was, asked on direct examination:

“As the result of your investigation, what did you then learn from these records ?”

The officer answered:

“After receiving certain information from the crime lab and checking our records, we found this gun was taken in a burglary that occurred at Peltzer’s gun store.”

Appellant objected to the officer’s answer after it was given, specifying no reason for his objection. The court overruled the •objection, following which the officer further testified, without objection, that “these are part of the records of the Baltimore •City Police Department”; and that the offense report showed that Peltzer reported the burglary in question, indicating at that time that a .22 caliber pistol, Serial % 125559, was stolen. The gun was then introduced in evidence over appellant’s gen-oral objection. The State introduced no other evidence relating to appellant’s guilt. The court, sitting without a jury, granted appellant’s motion for a judgment of acquittal as to all •counts of the indictment except the third, which charged him with breaking and stealing goods of the value of $5.00 or upwards under Section 33 of Article 27 of the Maryland Code (1967 Repl. Vol.). Appellant was then sentenced to ten years under the jurisdiction of the Department of Correction.

Appellant contends on this appeal that the trial court erred in admitting into evidence Officer Stanley’s testimony “as to the Police Department records concerning the gun taken from ■appellant at the time of his arrest whereby the officer testified that it was the same gun that, according to Police Department records, had been taken in the storehousebreaking and entering, which records were not placed in evidence, thereby resulting in prejudicial error.” In brief, appellant asserts that Officer Stanley’s testimony was hearsay and should not have been admitted in evidence. He asserts that he was in no way connected with the •crime by the stipulation since it did not include any agreement that the gun was taken in the burglary. As his possession of the weapon constituted his sole connection with the crime, appellant urges that the admission of the hearsay evidence was necessarily prejudicial. He maintains that while the police report may have been admissible in evidence as a business record under Section 59 of Article 35 of the Maryland Code, it was not introduced in evidence, so that the information therein contained •could in no event have been properly admissible at the trial. The appellant also contends that the admission of the gun itself into evidence was likewise error.

The State contends that as Officer Stanley was testifying or reading from the Police Department records, his testimony was tantamount to the introduction of the record in evidence, and that as Section 59 “does not limit or restrict the manner in which these records may be admissible,” the officer’s testimony given from and based upon the police records was properly admissible, there being no requirement that the record itself be introduced in evidence.

While not entirely clear from the record, it appears that Officer Stanley did not have any part in the preparation of the Departmental offense report concerning the Peltzer burglary, nor did he, when testifying, have any personal knowledge of the truth of the contents of such police record. He was not therefore simply refreshing his past recollection by referring to the police report.

Section 59 of Article 35 provides, in pertinent part, that “any writing or record” made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof thereof “if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record * * * at the time of such act, transaction, occurrence or event or within a reasonable time thereafter, * * The statute permits the introduction of business records, even though hearsay in nature, when the entry meets the test of “necessity and circumstantial guaranty of trustworthiness,” Morrow v. State, 190 Md. 559, and it is applicable in criminal as well as in civil cases, Lauder v. State, 233 Md. 142. We think it clear that the statute contemplates the introduction of the record itself in evidence as a prerequisite to the admissibility of testimonial assertions relative to its contents by a witness having no personal knowledge of the truth of the matters contained in the record. A proper foundation must therefore be laid showing when the record was made, that it was made in the regular course of business, and it was the regular course of business to make such record. See Smith v. Jones, 236 Md. 305; Goodman v. State, 2 Md. App. 473. Assuming the police record here in question to be a “business record” within the purview of Section 59, we hold that as there was no proper foundation for the introduction of such record in evidence, Officer Stanley’s testimony outlining the contents of the record was clearly hearsay, and would have been inadmissible upon proper objection.

We think, however, that Officer Stanley’s testimony, even though hearsay, was nevertheless admissible since no timely objection was made to it. It is well settled that, generally speaking, to preserve an issue on appeal in regard to the admissibility of evidence, there must be an objection made to the question eliciting the allegedly objectionable answer; and if counsel desires to preserve an objection to a line of testimony, this must be stated to the trial court and a continuing objection indicated. Rose v. State, 240 Md. 65; Culver v. State, 1 Md. App. 406. The ground for appellant’s objection to Officer Stanley’s testimony concerning what he learned from the police records was plain and manifest at the time the question was asked, but, in any event, he made no further objections to the officer’s subsequent testimony relative to the details of the police report and the fact that it showed that the gun in question had been taken from the storehouse of Robert Peltzer at the time of the crime. As this testimony came in without timely objection having been made, we do not think the issue was properly preserved on appeal. See Rose v. State, supra; Peisner v. State, 236 Md. 137; Hyson v. State, 225 Md. 140; Gaudio v. State, 1 Md. App. 455; Maryland Rule 522 d. Although hearsay, Officer Stanley’s testimony may be afforded the same probative force as if it were competent, the weight being for the trier of fact. Boggs v. State, 228 Md. 168; Moxley v. State, 205 Md. 507. As such testimony was received in evidence, it provided the necessary foundation for the introduction of the gun into evidence and consequently no error was committed in admitting it at the trial.

Appellant’s final contention — that the evidence was insufficient to convict — is without merit. To support a conviction for breaking and stealing under Section 33 of Article 27, it must be shown (a) that there was a breaking, and (b) that there was a larceny amounting in value to $5.00 or more. Turner v. State, 242 Md. 408; Graczyk v. State, 233 Md. 245; Chittum v. State, 1 Md. App. 205. It was stipulated that there was a breaking and that guns amounting in value to over $100.00 were stolen at that time. That appellant was found in exclusive possession of one of the stolen guns soon after the theft justifies the inference that he was the burglar, there being no reasonable explanation given by him as to how he came into possession of the stolen weapon. While there was no specific proof offered by the State that the stolen gun recovered from appellant had a value of $5.00 or more, the proof that the value of the stolen guns collectively exceeded $100.00, considered in light of the inference that appellant was the burglar, suffices to show that he broke the storehouse and stole, at that time, goods of a value of $5.00 or upwards. See Anglin v. State, 244 Md. 652; Rose v. State, supra; Frey v. State, 3 Md. App. 38; Reagan v. State, 2 Md. App. 262. See also Shipley v. State, 220 Md. 463.

Judgment affirmed.

      . “Every person convicted of the crime of breaking into any shop, storeroom, * * * and stealing from thence any money, goods or chattels to the value of five dollars or upwards * * * shall fie guilty of a felony and upon conviction be sentenced to the penitentiary for not more than ten years.”


text:
    JOHN FRANKLIN WILLIAMS v. STATE OF MARYLAND
    [No. 357,
    September Term, 1967.]

      Decided July 29, 1968.

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

      Harvey A. Blum, with whom were Alan J. Bloom and David .Kimmelman on the brief, for appellant.

      Bernard L. SUbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State's Attorney for Baltimore County, and B. Harrison Stone,

      Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Per Curiam.

On November 9, 1967, the appellant, John Franklin Williams, was convicted by a jury of common law assault and resisting arrest, in the Circuit Court for Baltimore County, Judge John' Grason Turnbull presiding. Appellant was sentenced to five years imprisonment under the Maryland Department of Correction on the assault conviction, with a general suspended sentence on the resisting arrest conviction.

Appellant raises three contentions on appeal:

1. That the trial court abused its discretion in not granting the appellant a change of venue from Baltimore County.

2. That the appellant’s arrest was illegal.

3. That the State failed to prove the necessary mens rea to establish guilt.

The evidence adduced at the trial established that on January 15, 1967 Officer William Robinson of the Baltimore County Police responded to a call over his police radio reporting that a subject was observed with a knife at 40' North Twin Circle Way, Baltimore, Maryland. The report lacked a description of the subject and information that the knife was being used against another. Upon arrival at the aforenoted address, Officer Robinson wTas admitted to the premises by Carole Ferrara. The officer observed blood on the kitchen floor and the appellant sitting at the kitchen table. Observing that the appellant’s hand was cut, the officer volunteered to render first aid, to which appellant replied “[djon’t touch me, you bastard,” accompanied by a shove. The appellant then jumped up and grabbed Carole Ferrara, pushing her backwards into the sink, grabbed a meat cleaver and threatened to kill the officer if he attempted to take him from the apartment. Officer Robinson advised the appellant that he had caused damage and had committed an assault in his presence and directed him to drop the meat cleaver. When the appellant failed to drop the cleaver, the officer drew his revolver and pointed it at him and warned him three times to drop the cleaver. Appellant dropped the cleaver and was advised that he was under arrest. When the officer attempted to place handcuffs on the appellant, a scuffle arose, with both the officer and the appellant falling to the floor, during which the appellant kicked Officer Robinson.

Article 75, § 44 of the Maryland Code Annotated, makes it clear that before a removal will be ordered, the party suggesting same must “make it satisfactorily appear to the court that such suggestion is true (that he cannot have a fair and impartial trial) or that there is reasonable ground for same.” Dolan v. State, 1 Md. App. 292, 296, 229 A. 2d 443, 445 (1967); McLaughlin v. State, 3 Md. App. 515, 520, 240 A. 2d 298, 302 (1968). This language requires the “logical conclusion that in the absence of evidence to show that the court below acted arbitrarily and abused or refused to exercise the discretion given it by the amendment, this Court cannot say that the removal should or should not have been granted, and can only affirm the action of the lower court.” Downs v. State, 111 Md. 241, 248, 73 Atl. 893, 895 (1909); Dolan v. State, supra.

The thrust of the appellant’s contention is that since the victim of his alleged attack was a Baltimore County police officer, he could not be afforded a fair and impartial trial in Baltimore County. The trial court found that the appellant failed to maintain his burden of persuasion by establishing an affirmative showing that he had been prejudiced. We note that the trial judge entered voir dire inquiries directed at this issue in an apparent effort to remove even the remotest possibility of prejudicial sentiment from the trial. We find that the appellant’s allegation fails to establish an affirmative showing of prejudice, and further find no abuse of discretion by the trial court.

Appellant’s second contention is without merit. Officer Robinson was lawfully present at the situs of the crime based upon his voluntary admission to the premises by Carole Ferrara. This admission to the premises, when coupled with the police radio report to Officer Robinson “that a man inside the premises had a knife” and his observation, before entering, of “blood on the kitchen floor,” which circumstances of themselves could warrant a man of reasonable caution to believe that a felony may have been committed within, lends additional justification for the officer’s presence. While thus lawfully present, Officer Robinson witnessed the appellant’s assault upon Carole Ferrara and was personally assaulted by the appellant. Therefore, the arrest of the appellant was clearly legal as evidenced by the two misdemeanors committed in the presence of Officer Robinson. See Speaks v. State, 3 Md. App. 371, 239 A. 2d 600, 603 (1968); Crosby v. State, 2 Md. App. 578, 588, 236 A. 2d 33, 39 (1967); Salmon v. State, 2 Md. App. 513, 521, 522, 235 A. 2d 758, 763 (1967).

Appellant’s third contention urges that the conviction must fail due to the State’s failure to prove the prerequisite mens rea. The thrust of this contention is that the appellant’s acts were directed toward the commission of his self-destruction and that he “did not intend to injure anyone but would not allow an interference with his attempt.”

The concept of mens rea was ably defined by Judge Learned Hand in United States v. Crimmins, 123 F. 2d 271, 272 (1941), wherein he stated:

“Ordinarily one is not guilty of a crime unless he is aware of the existence of all those facts which make his conduct criminal. That awareness is all that is meant by the mens rea, the ‘criminal intent’, necessary to guilt, as distinct from the additional specific intent required in certain instances (Reynolds v. United States, 98 U. S. 145, 167, 25 L. Ed. 244), and even this general intent is not always necessary.”

The crime of common law assault is “an attempt by force to injure the person of another, and a battery is committed whenever the menaced violence of assault is done in the least degree. * * * Any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another, that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention. * * * It is not necessary that there should be a specific purpose to do a particular injury. General malevolence or recklessness is sufficient; but mere negligence does not suffice.” Hochheimer, Crimes and Criminal Procedure, Second Edition, §§ 253, 254, 256.

In the instant case, the appellant’s threatening gesture with the meat cleaver directed at Officer Robinson, plus his expressed intent to kill the officer if he approached closer and attempted to take him out of the apartment, adequately satisfied the corpus delicti of common law assault. The assault having taken place, it was not necessary to establish a specific purpose or intent to do a particular injury as the general malevolence was sufficiently evidenced.

We further note that there was fully sufficient evidence to sustain the conviction for resisting arrest, as charged in the second count.

Judgments affirmed.


author: Orth, J.,

text:
    ERIC JOHNSON v. STATE OF MARYLAND
    [No. 360,
    September Term, 1967.]

      Decided July 29, 1968.

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

      Joseph G. Koutz for appellant.

      Bernard L. Gilbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Peter D. Ward, 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 jury in the Criminal Court of Baltimore of murder in the first degree and attempted robbery with a deadly weapon. He was sentenced to imprisonment for the balance of his natural life on the murder conviction and to a concurrent sentence of 10 years on the attempted robbery conviction. On appeal from the judgment he contends:

I. He was denied a speedy trial;

II. The trial court erred:

1) in its ruling with regard to impeachment of a State’s witness;

2) in its instructions to the jury, and

3) in the admissibility of certain testimony.

III. The evidence was not sufficient to sustain the convictions.

I

The appellant and a co-defendant, Irvin EeRoy Brooks, were presented on 15 June 1966 and indicted on 20 June 1966. The appellant’s trial commenced on 6 October 1967. On 10 August 1966 a hearing was held on the appellant’s motion for a speedy trial which he had filed on 20 July 1966 and trial was set for 26 August but on 16 August he filed a motion to dismiss the indictment. The case came on for trial on 26 August and for the first time the State was informed that the appellant desired a jury trial. The court granted a postponement of four days at the request of the State. It appears that the motion to dismiss was not pressed. After the postponement was granted the trial judge noted that the appellant had not been present at the proceedings and ordered him brought to chambers to have the court stenographer read to him what had occurred out of his presence. While this was being done, the judge, observing the conduct and demeanor of the appellant, felt there was some reason to suspect that he may have been a lunatic or insane and referred him to the Medical Service of the Supreme Bench of Baltimore which reported the same day: “Our psychologist * * * was of the definite opinion that Mr. Johnson is not presently able to stand trial nor to assist his counsel in his own defense”. It recommended that the appellant be sent to Clifton T. Perkins State Hospital for treatment and evaluation. The court, over objection of the defense, ordered the appellant to be transferred to that hospital “there to be examined and evaluated for a determination and report to this Court as to whether he is presently able to stand trial and to assist counsel in his own defense”. Under date of 11 November 1966 the Superintendent of the hospital reported that in his opinion and that of the Medical Staff the appellant was currently competent to stand trial and “was of such mental capacity and reason at the time of the alleged offenses so as to be properly able to distinguish between right and wrong and to know the nature and consequences of his acts as applied to himself”. It was requested that arrangements be made to return the appellant to the custody of the court.

In view of the action of the court in having the appellant examined and evaluated to determine his competency to stand trial, we think it clear that none of the period prior to that determination was chargeable to the State in computing a delay in the constitutional sense in bringing the case to trial. See Stevenson v. State, 4 Md. App. 1, 11. In the meantime, the appellant’s court appointed counsel had been incapacitated by reason of injuries suffered in an automobile accident about 1 October 1966. On 8 December 1966 the Assistant State’s Attorney prosecuting the case wrote counsel that the State was “anxious to set the above case in for trial and requesting ‘one or more suitable trial dates’ ” As it appeared that defense counsel would not be able to proceed with the case for some time,, his associate requested the court to appoint other counsel and the court did so on 20 December 1966 with the associate as co-counsel. The appearance of the newly appointed counsel was entered on 27 January 1967. He filed a motion to dismiss the indictment for lack of a speedy trial on 30 January, and on the same date entered a plea of insanity and petitioned for further medical examination. Defense counsel made clear that the motion to dismiss was predicated “on the happenings up to and including January 31, 1967”. The motion to dismiss was denied at a hearing on 31 January and the motion for further medical examination granted. At the hearing counsel also filed a motion to exclude evidence. The report from a private psychiatrist was rendered on 6 February. The case was set for trial by the State on 9 March but was taken out of the assignment at request of defense counsel. In his brief the appellant states that trial was set in April and was postponed because defense counsel was engaged in previously assigned trials and again on a date in May which was not acceptable to defense counsel who was engaged in a trial in the federal court. On 12 June an Assistant State’s Attorney wrote defense counsel:

“As I have previously advised you, the State is prepared to go to trial in the above-entitled case at the earliest mutually agreeable date.
I understand that the Defendant elects to have the case tried before a jury. As you no doubt know, the present jury panel term ends on June 16, and there will not be another regular panel available until the two week period from July 24 through August 4.
If, however, you wish to proceed with trial before the end of July, please advise me promptly as to what dates you will be available, and this office will request the Bench to make a special panel available”.

On 21 June the Assistant State’s Attorney wrote the jury commissioner that defense counsel had requested trial by a jury the week of 26 June and asked if a special panel could be brought in. The jury commissioner informed the State that the next panel would be available from 24 July through 4 August. On 26 July the State wrote defense counsel and asked him to suggest a date when he would be available for trial. On 8 September the State wrote defense counsel that in accordance with request of defense counsel that the case be set for trial not later than 20 September, trial had been set for 19 September but that as the State understood that the date was not convenient to the defense, it had been set for 28 September. It was requested that defense counsel inform the State if it could proceed to trial on that date. Trial was again postponed by mutual agreement and the case came to trial on 6 October after a hearing on motion to dismiss the indictment was denied.

The right to a speedy trial is a relative one and the time within which trial must be had to satisfy the constitutional guaranty depends on the facts and circumstances of the particular case. Kelly v. State, 2 Md. App. 730. In Stevenson v. State, supra, at 11, we set forth the four factors which are relevant to a consideration of these facts and circumstances in determining whether a delay in trial assumes constitutional proportions: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the accused; and (4) waiver by the accused. We have found that any delay prior to 11 November 1966 was not chargeable to the State. We think that the period from 11 November 1966 to the date of trial was not such a substantial delay as to make a prima facie showing of prejudice so as to place a burden on the State of proving both that there was no more delay than was reasonably attributable to the ordinary processes of justice and that the accused suffered no prejudice thereby. Nor do we think that under the facts and circumstances above set forth the delay from 11 November 1966 wras reasonably chargeable to the State. Thus the delay was not capricious and oppressive on the part of the State and was not a delay in the constitutional sense. See Fabian v. State, 3 Md. App. 270, 285. In any event, the appellants have not shown a “strong possibility” of prejudice as is required when demand for a speedy trial has been made. Stevenson v. State, supra, at 14, 15. The appellant alleges that he was prejudiced by being tried after his co-defendant because the effectiveness of the sequestration of witnesses was “destroyed” and the effectiveness of cross-examination was reduced. If applied as the appellant urges, the State, first trying a defendant, would be precluded from prosecuting a co-defendant. The appellant cites no authority to this effect and we know of none. It is obvious that when a severance is granted, one of the co-defendants must be tried subsequent to the other. We do not find this allegation to be sufficient to show the required strong possibility of prejudice. The appellant also alleges that the action of the trial court in ordering his medical examination prejudiced him by violating his right to a speedy trial. We think it clear that such action is a proper exercise of the court’s discretion when it has reason to suspect that a defendant may be a lunatic or insane, and particularly when its suspicion is buttressed, as it was here, by expert opinion on preliminary examination, that the defendant was not able to stand trial or assist his counsel in his defense. In view of our findings we need not consider the factor of waiver.

We hold that the appellant was not denied a speedy trial and that the lower court did not err in denying the motions to dismiss the indictment.

II

1) Arion England, a witness for the prosecution, admitted on cross-examination that he had been convicted of a crime. At a bench conference out of hearing of the jury, the criminal record of the witness was reviewed and the court stated that it would not permit defense counsel to interrogate the witness “about disorderly conduct convictions or the one as to being drunk or the possession of barbiturates.” In the presence of the jury it was brought out that the witness had been convicted of larceny on 21 February 1963 and sentenced to 90 days, of assault on 30 July 1963 and sentenced to 3 months, of assault on 3 May 1965 and sentenced to 6 months, and of assault on 9 January 1966 and fined $50 and costs and committed. The appellant contends that the lower court erred in not allowing the witness to be examined as to his conviction of possession of barbiturates.

It is competent for any party to the proceedings in all cases to prove by legal evidence the conviction of a witness of any infamous crime. Md. Code (1965 Repl. Vol.) Art. 35, § 10. An “infamous crime” is such crime as involved moral turpitude, or such as rendered the offender incompetent as a witness in court. State v. Bixler, 62 Md. 354, 360. “The crimes which the common law regarded as infamous because of their moral turpitude were treason, felony, perjury, forgery, and those other offenses, classified generally as crimen falsi, which impressed upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice.” Garitee v. Bond, 102 Md. 379, 383. The offender was rendered incompetent as a witness in court on the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit. State v. Bixler, supra, 360. But by statute no person offered as a witness shall be excluded by reason of incapacity from crime and shall be admitted to give evidence notwithstanding that he “may have been previously convicted of any crime or offense” unless he has been convicted of perjury, in which event he shall not be admitted to testify “in any case or proceeding whatever.” Md. Code, supra, Art. 35, § 1; Florentine v. State, 184 Md. 335. The general rule, however, is that a witness may be cross-examined on matters which test his credibility, Howard v. State, 234 Md. 410, 415, and under this rule he may be questioned as to his previous convictions, Woodell v. State, 2 Md. App. 433, 438; Huber v. State, 2 Md. App. 245, 256. Such evidence of prior convictions is admissible only for the purposes of impeachment and not to prove a fact in issue unless relevant to that issue and not collateral thereto. Wethington v. State, 3 Md. App. 237. Evidence of the prior convictions need not be restricted to infamous crimes or those involving moral turpitude, provided the offense may have some tendency to show that the witness is not to be believed under oath. Taylor v. State, 226 Md. 561; Linkins v. State, 202 Md. 212. The allowance or disallowance of certain questions on cross-examination is normally left to the sound discretion of the trial judge, Holt v. State, 3 Md. App. 544, and it is when there is an abuse of discretion to the prejudice of the accused that we must reverse, Shupe v. State, 238 Md. 307, 310, 311. In the instant case, the appellant urged that it was not him but England who participated in the crime with Brooks and that the prior conviction of England of possession of barbiturates was admissible to show that England might have been under the influence of narcotics at the time of the commission of the crime. We think that the fact of that conviction, at best, was admissible only under the rule with regard to impeachment of the credibility of the witness and was collateral and irrelevant to the issue of the guilt or innocence of the appellant. The proper object of evidence of the prior convictions of the witness was to discredit him by showing that his character was such as to render his testimony unworthy of belief on the issue of its truth. “In other words, is the witness devoid of moral perception, such a person as would regard lightly the obligations of an oath to tell the truth?” Burgess v. State, 161 Md. 162, 172. Evidence of the convictions of the witness for larceny and three crimes of assault were before the jury for such bearing and weight on his credibility as the jury might give it under the circumstances. We are not prepared to say that under these circumstances, the ruling of the lower court was so clearly wrong as to call for a reversal of the judgment. “Especially is this true when it is shown by the record that the jury had the full benefit of inquiry into the witness’ past life sufficient to indicate to them the probable character of the witness.” Burgess v. State, supra, 174.

2) The appellant contends on appeal that the lower court erred “by refusing to instruct the jury that the test for determining whether a person is an accomplice of a defendant is whether he could be indicted and punished for the same crime.” The instructions included the following:

“Our courts have held that to be an accomplice a person must participate in the commission of a crime knowingly, voluntarily and with common criminal intent with the principal offender or must in some way advocate or encourage the commission of the crime, but the fact that a person witnesses a crime and makes no objection to its commission and does not notify the police does not make him an accomplice.”

We do not find in the record that the appellant requested the instruction that he now claims the court refused to give or that before the jury retired to consider its verdict, the instruction given was objected to by the appellant or that he objected to any omission from the instructions regarding accomplices. Therefore, he may not assign the error now alleged as a right of error and we do not consider it. Md. Rules, 756(g). Hicks v. State, 3 Md. App. 225, 231. In any event, we find no plain error material to the rights of the accused in the instructions defining an accomplice. See Watson v. State, 208 Md. 210, 219.

3) A police officer called by the State testified that between 12:00 midnight and 1:00 A.M. on the day of the crime he observed the appellant and two other boys at a Pixie Shop on the southwest corner of North and Linden Avenues. One of the other boys wore a light tan trench coat. They, with others, were “acting in a disorderly manner.” The three boys were “loud and boisterous.” He told them that if they were not buying anything to leave. They left and stood on the corner of North and Linden Avenues. He told them not to loiter and they went to a Little Tavern on North Avenue and Jordan Alley. He told them that “if they weren’t buying anything, again they would not be able to hang in the Little Tavern.” Later they left. The murder occurred in the 1900 block of Eutaw Place, approximately one and a half blocks away, about 1:30 A.M. On information received by the officer after the commission of the crime two of the boys, one of them being the appellant, were later apprehended. England testified that the appellant and Irvin Brooks were with him when the police officer accosted them in the Pixie Shop and that appellant and Brooks committed the crime. Another State’s witness testified that one of the two persons she saw assaulting the deceased wore a light trench coat and the other had on a dark coat. The appellant contends that the testimony of the police officer was not admissible as irrelevant. We think it was relevant as tending to show the identity of the appellant and his presence near the scene of the crime shortly before it was committed, particularly in view of the contention of the appellant that England was an accomplice. The testimony of an accomplice, in order to sustain a conviction, must be corroborated by evidence as to some of the material facts tending to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime. Boone v. State, 3 Md. App. 11. The testimony of the officer was clearly relevant as tending to be corroborative of England’s testimony, as required in the event the jury found England to be an accomplice. Further there was no prejudice to the appellant in the admission of the testimony as he testified that he, Brooks and England were together at the Pixie Shop and the Little Tavern and left together. We find no abuse of discretion by the lower court in admitting the testimony of the officer.

Ill

Arion England, after recounting the events at the Pixie Shop and the Little Tavern, testified that he, Brooks and the appellant walked to the 1900 block of Eutaw Place. “This man was coming across the street, was staggering, drunk, and then we started walking down the street and Brooks, you know, started saying something and Brooks looked at Johnson and Johnson looked back at him and (Brooks and Johnson) started running down the street * * * Brooks, he grabbed the man and turned the man around and hit him * * * he hit him in the face * * * with his fist.” England was about 30 feet away. The appellant was on the man beating him. The man was on the ground. The appellant “had his knee propped down on the man, on his arm.” He was beating the man with his fists. A woman looking out a window in a house in front of which the assault was taking place hollered “Police.” England started running down Eutaw Place towards Robert Street. The appellant and Brooks started running in the same direction. They stopped running about a block away, saw the police and started running again. Then Brooks said he was going home and England and the appellant walked “up the street” together. England saw blood on the appellant’s hands and the appellant said, “I stabbed him” and “he thought he killed him.” England saw the appellant the next day. The appellant told England that he had heard on the radio that the man had died and that he was going to leave Baltimore. Brooks was wearing a light trench coat. England said that when the appellant and Brooks were beating the man he hollered to them to leave the man alone.

Rena Lovelace, testified that she lived at 1902 Eutaw Place and about 1:30 A.M. on 12 March was looking out the second floor window of her home. She saw a man “coming down towards Robert Street, and it was two boys in the back of him, and they got right next to my steps. They were right up close on him and he said to the boys, he said, ‘Leave me alone. I doesn’t have anything’ * * * So I watched them shove him on the street and I thought they was just playing until I seen the little boy, the fat one, go in his pocket and take something out of his pocket and went like that (indicating) to the man and I see the blood and I screamed.” The boy who “cut him or stabbed him” was kneeling on the man. She hollered that she was going to call the police. They jumped up and ran “down Robert Street.” She told her daughter to call the police. One of the boys had on a light trench coat with a belt in the back and the other had on a dark coat. She only saw two boys and the man.

It was stipulated that the body of Oscar Lewis, the person named in the indictments, was the same body of a male taken from in front of 1900 Eutaw Place to Provident Hospital where he was pronounced dead on arrival at 2:00 A.M. on 12 March 1966. The autopsy report disclosed nine stab wounds in his head and neck and that the blood alcohol content was 0.22 per cent. It was the opinion of the Medical Examiner that Oscar Lewis died of aspiration of blood from a stab wound of the neck and that the manner of death was homicide. The deceased had on his person a wallet, personal papers and $6.95.

The appellant testified that he and Brooks and England were together at the Pixie Shop and the Little Tavern on the night in question. They left the Little Tavern and walked down North Avenue. He then left Brooks and England, went to a girl’s house on Bolton Street but she was not there. He went home. He denied telling England he had stabbed a man, denied' stabbing Oscar Lewis and denied having a knife. Brooks was. wearing a light Barracuda trench coat. England was wearing-a dark sweater. The appellant was wearing a dark gray coat. He had a previous criminal record of assault, attempted larceny and larceny.

The appellant urges that the evidence was not sufficient to. sustain the convictions but directs his argument in his brief to the contention that England was an accomplice whose testimony was not corroborated.

“An accomplice is one who knowingly, voluntarily, and with common interest with the principal offender, participates in the commission of a crime either as principal or as accessory before the fact. * * * But the fact that a person witnesses a crime and makes no objection to its commission and does not notify the police does not make him an accomplice. To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime. * * * [A]n accessory after the fact is not an accomplice * * Watson v. State, 208 Md. 210, 217, 219, 220.

We think that the jury, from the evidence before it, could properly find that England was not an accomplice. There was no-evidence that there was a pre-arranged plan to which England was a party to rob or assault the deceased or that England participated in the crime or advocated or encouraged its commission. Therefore, his testimony need not have been corroborated and his identification of the appellant was sufficient to-prove the criminal agency of the appellant. Reed v. State, 1 Md. App. 662, 664. We feel that the evidence was sufficient to prove the corpus delicti of both murder in the first degree and attempted robbery with a deadly weapon. From the evidence the jury could have properly reached its verdict of murder in the first degree by finding that the homicide was wilful, deliberate and premeditated, Md. Code, (1967 Repl. Vol.) Art. 27, § 407; Leyva v. State, 2 Md. App. 120, or that it was committed in the attempt to perpetrate a robbery, Code, supra, Art. 27, § 410; Shockley v. State, 218 Md. 491; Stansbury v. State, 218 Md. 255. We said in the companion case of Brooks v. State, supra, at 296, in which the evidence was the same in its material aspects:

“We think that the evidence would at least support an inference that there was an attempt to rob the deceased. There was no evidence of an argument or altercation before the brutal assault, that there was ill-will between the deceased and his assailants or in fact that he even knew them, or that the assault was provoked by other than an attempt to rob. The attack was from the rear and began by grabbing the victim by the shoulders to spin him around and by blows to the face. Although, if any words were spoken by the assailants, they were not overheard, the victim cried out on two occasions, ‘You all leave me alone, I doesn’t have anything.’ The purpose of the assailants was not completed only because of the intervention of Mrs. Lovelace. The incident followed the all too familiar pattern of a typical yoking of a drunken man, but with murder as the end result.”

And there was credible evidence that a deadly weapon was used in the attempted robbery, a weapon the use of which inflicted a stab wound on the victim causing his death. We have found that there was legally sufficient evidence or inferences drawable therefrom to prove the corpus delicti of murder in the first degree and attempted robbery with a deadly weapon and to prove the criminal agency of the appellant as to each of those crimes. Thus the jury could properly find the appellant guilty beyond a reasonable doubt and we may not overturn the judgments entered for insufficiency of the evidence. Agresti v. State, 2 Md. App. 278.

The appellant claims inconsistencies in the testimony of the State’s witnesses. But such contradictions in testimony go to the weight of the evidence. Borman v. State, 1 Md. App. 276; Whitmer v. State, 1 Md. App. 127. This Court does not inquire into and measure the weight of the evidence which is a matter for the jury. Thompson v. State, 4 Md. App. 31.

Judgments affirmed.

      . Brooks was convicted of murder in the first degree and attempted robbery with a deadly weapon at a court trial which commenced on 7 September 1966, was not concluded on that date and resumed on 18 November 1966. On 28 November 1966 he was sentenced to imprisonment for the term of his natural life on the murder conviction and to 5 years concurrently on the attempted robbery conviction. The judgments were affirmed by this Court. Brooks v. State, 2 Md. App. 291.

      . The court’s authority to so order was provided by Md. Code, Art. 59, § 7 and § 9 then in effect. Chapter 709, Acts 1967, repealed §§ 7-12 and enacted new §§ 7-12 in lieu thereof effective 1 June 1967. The court has like authority under the new statute.

      . That was the test at that time for insanity with regard to criminal responsibility. The current test provided by Chapter 709, Acts 1967, now codified as Art. 27, § 9, applies to cases tried or scheduled for trial on and after 1 June 1967.

      . The appearance of the associate of the original counsel was entered on 28 September 1967.

      . As is distinguished from a showing by a defendant of actual prejudice which is required when no demand has been made. Fabian v. State, supra.

      . See Code, Art. 35, § 4 for competency of the accused to testify in proceedings in the nature of criminal proceedings.

      . For example, when evidence of a prior conviction is allowed and the fact of the prior conviction is clearly irrelevant. Where the conviction was for a crime not infamous, the length of time since it occurred considered with the nature of the crime has been deemed pertinent in deciding relevancy. Where the conviction was for an infamous crime, evidence of it is admissible without reference to the time of its commission for such bearing and weight on credibility the trier of fact may give it. Cousins v. State, 230 Md. 2, 4-5.

      . The applicant suggested at a hearing on a motion for a new trial that the lower court should have ruled as a matter of law that England was an accomplice. The court stated that the question was one for the jury under the evidence and pointed out that the jury was adequately instructed by the court in its advisory capacity on the law of accomplices and that no exceptions were made to the instructions given.

      . At the trial of Brooks, England testified that it was Johnson who grabbed the man, turned him around and hit him. Then Brooks ran in and hit him. But his testimony at both the trial of Brooks and the appellant was that it was the appellant who was on top of the man, kneeling on the man’s arms, beating him.


text:
    EDWARD RUDOLPH FLADUNG v. STATE OF MARYLAND
    [No. 194,
    September Term, 1967.]

      Decided August 13, 1968.

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

      Sherman W. West for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph C. Sauerwein, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was found guilty generally by the court sitting without a jury under an indictment charging storehousebreaking, larceny, and receiving stolen goods. He was sentenced to a term of four years imprisonment. On this appeal, he contends that the evidence was insufficient to support his convictions.

The essential facts are these: November 8, 1966 was a holiday and the Seabrook Elementary School was not in session. Sometime after 2:00 p.m. on that day, Gertrude Hughes, the school’s Principal, went to the school, unlocked the front door and, once inside, discovered that several classroom doors had been opened and damaged and that a window had been broken in classroom #7. Upon going to the school cafeteria, the Principal found that a large quantity of food was strewn about the floor and that other food, amounting in value to over $100.00, was missing from the cafeteria refrigerator and cold storage room, as well as several pieces of cafeteria equipment.

The evidence showed that the Principal and three other persons (the head custodian, cafeteria manager, and one teacher) had keys to the school but none of the others were present on the day of the breaking. The head custodian had locked the building on the previous night at approximately midnight.

Classroom %7 was a ground level room, located to the rear of the school’s multi-purpose room and was not visible from the road. The window in classroom %7 extended from a few feet from the floor to the ceiling, and ran almost the entire length of the room, the window being made up of a number of sections approximately three feet by three feet. The glass from the broken window was found inside classroom #7 on a shelf under the window. The school’s Principal had been in classroom %7 on November 7 and the window was not then broken.

The police arrived at the scene about 4:00 p.m. on November 8. Detective Sergeant Spencer checked for latent fingerprints and discovered “a fingerprint on the inside on the glass of the window” in classroom #7. The window “had been broken and opened” and the fingerprint was “lifted from the window.” Only one pane in the window had been broken and the latent print was “lifted from the glass itself.” No other latent fingerprints were lifted during the police investigation of the crime. Asked on cross-examination “where the print was located,” Detective Spencer responded:

“* * * it’s a pull-out type window, if I remember correctly. The print was inside on the glass, a little bit above — right on the inside of the window when it’s opened partly.”

The print was positively identified by F.B.I. experts as that of the appellant’s right ring finger.

Appellant did not testify at the trial and offered no evidence on his own behalf. After his motion for judgment of acquittal was denied, the trial court stated that the case was one where “Other than the matching of the fingerprint, there is no evidence whatever that places the defendant on the scene, nor is there any evidence that the defendant was ever known to have had any of the property in his possession * * After noting that appellant’s latent fingerprint was found on a pane of the window which had been broken and that it could reasonably be inferred that this was the point at which access to the building had been gained, the trial court stated that in the absence of any explanation from the appellant as to how his fingerprint was impressed on the window, it was convinced beyond a reasonable doubt of appellant’s guilt.

I

Appellant contends that evidence of one latent fingerprint, by itself, is not legally sufficient evidence upon which to base a conviction in the absence of a showing by the State that the print was impressed at the time of the offense. Appellant particularly stresses that there was no evidence adduced at the trial to show how long the print had been on the window. He urges that there was an infinite number of opportunities for his print to have been impressed on the window weeks or even months prior to the offense, particularly since the school was a public building and, as such, accessible to the general public.

In Murphy v. State, 184 Md. 70, 85-86, the Court of Appeals held that the use of fingerprints is an infallible means of identification. It has been generally recognized that where, as here, the only evidence of guilt of the accused consists of his fingerprints found at the scene of the crime, the evidence, to-be legally sufficient to support a conviction, must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time-other than that of the crime. See McNeil v. State, 227 Md. 298, and authorities therein cited. We recognized in Lawless v. State, 3 Md. App. 652, that such “other circumstances” need not be those completely independent of the fingerprint and may properly include circumstances such as the location of the print, the character of the place or premises where it was found, and the accessibility of the general public to the object on which the print was impressed. We said in Lawless at page 659 :

“* * * A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent. While a defendant does not have the obligation to testify himself or to offer testimony to explain the presence of his prints, a court cannot supply evidence that is lacking. United States v. Hayes, 385 F. 2d 375 (4th Cir. 1967). We also feel that the rule in McNeil does not compel the State to negative every conceivable possibility that an accused, shown to be at the scene of a crime by his fingerprint, was present other than at the time of the commission of the crime. The fingerprint evidence, as we construe it, need be coupled only ‘with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime’ (emphasis added). The rule does not require under all circumstances in every case that the State affirmatively and conclusively prove that the accused could not have been there other than a time when the crime was committed. Thus, in view of the other circumstances, it may not be necessary for the State to produce evidence by each person who may have authority or apparent ability to admit an accused to the premises lawfully, that he did not authorize that person to enter the premises.”

We have recently considered the application of these principles in a number of cases where the State’s evidence was largely limited to the discovery of the accused’s fingerprints at or near the scene of the crime. In some of these cases, we found the evidence insufficient to sustain the conviction. See Gray v. State, 4 Md. App. 155; Mills v. State, 3 Md. App. 693; Musgrove v. State, 3 Md. App. 54. In other cases, both this court and the Court of Appeals of Maryland have found such evidence to be legally sufficient to convict. See McNeil v. State, supra; Debinski v. State, 194 Md. 355; Couser v. State, 4 Md. App. 543; McGhee v. State, 4 Md. App. 256; McCargo v. State; 3 Md. App. 646; Hannah v. State, 3 Md. App. 325. In Lawless we reviewed at length the cases from other jurisdictions involving the question of the legal sufficiency of fingerprint evidence to convict, including all of the cases presently relied upon by the appellant herein. It would, therefore, serve no useful purpose to again review the facts of any of these cases, particularly since each case necessarily must be decided on its own facts.

On the record before us, we are persuaded that the judgment of the lower court sitting without a jury was not clearly erroneous, (see Maryland Rule 1086) as the evidence of the attendant circumstances with respect to the finding of appellant’s fingerprint on the broken window was such that the trial judge could properly conclude that appellant was present at the time the crime was committed and that he was, in fact, the criminal agent. The evidence showed that the window in classroom #7 was not broken on November 7 when the Principal observed it that day, but was broken when she next observed it shortly after 2:00 p.m. on the following day. As classroom %7 was not visible from the road, being hidden from view by the school’s multi-purpose room, we think it a particularly rational inference that the person who broke the window in that classroom entered the school and stole the food and equipment from the cafeteria. While there was no evidence as to how long appellant’s fingerprint had been on the window, the evidence did show that his was the only print lifted therefrom, and that his print was so positioned on the inside of the window as to make it reasonably inferable that the person who entered the building through the window was the same person who left his print thereon. As the print was on the inside of the classroom window, rather than the outside, it was not located in an area readily accessible to the general adult public. Under these circumstances the fact that three persons other than the Principal had keys to the building, and that none of them testified, would be a fact of no vital consequences in determining the legal sufficiency of the evidence to support the convictions. Compare Musgrove v. State, supra. And while it may be true that appellant may have had many opportunities to have impressed his print on the window at a time other than the commission of the crime, such speculation does not take the place of evidence in the case and, as we observed in Lawless, the court cannot supply evidence that is lacking. We conclude, therefore, that there was legally sufficient evidence to support the convictions and accordingly so hold.

Judgment affirmed.

      . A latent fingerprint was described and characterized at the trial by an F.B.I. expert in these terms:
      “The palm and surfaces of the fingers are covered by raised ridges, known as friction ridges. These ridges have pores which exude perspiration. The fingers also come in contact with the hair or hairy parts of the body, picking up oils. Now, this perspiration and oil will coat the surface of the friction ridges. When an object is touched this perspiration and oil is transferred to the object. These latent impressions are usually invisible and require some type of processing to produce visibility.”

      . A general verdict of guilty on two inconsistent counts, as here (larceny and receiving stolen goods), is, of course, defective and the defendant has a right to require the trier of facts to specify on which of the counts he is guilty. The right may, however, be waived where the matter was not raised below. In this case, the question was not raised below nor on appeal. See Thomas v. State, 2 Md. App. 645, 648-649, and cases there cited.


author: Morton, J.,

text:
    WILLIAM PAUL PLUMLEY v. STATE OF MARYLAND
    [No. 251,
    September Term, 1967.]

      Decided August 13, 1968.

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

      Sherman W. West for appellant.

      William B. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Bdmard P. Cames, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant was found guilty by a jury in the Circuit Court for Prince George’s County of an attempt to murder John Preston Scott and was sentenced to imprisonment for a term of 15 years.

At the trial Scott testified that he owned and operated an “all night” restaurant known as the Branch Avenue Coffee Shop and that the appellant had worked for him and lived in the residence occupied by Scott and his wife. He discharged the appellant two or three days before 22 December 1965 “for not doing his work properly and taking money from the pool tables.” In the early morning hours of 22 December Scott was at his home and saw the appellant drive past the house on two occasions in a maroon and cream colored Ford. Shortly thereafter Scott drove a Cadillac car, owned by his brother-in-law, which car the appellant knew that Scott used, to the restaurant and parked it in back of the building. At 4:00 A.M. Scott saw the Ford at the restaurant. About noon Scott attempted to leave the restaurant but the Cadillac would not start. He thought the car was out of gas and sent a boy to get some. When the boy returned with the gas he opened the hood to pour some in the carburetor and observed a “ball of wire taped up” and “wires leading from this wire down to a pipe, down by the steering mechanism and another wire was run over and was tied to a bolt on the car water pump.” He told the boy who had gotten the gas that he thought it was a bomb and to stay away from it, called the police, and told people in the restaurant that there was a bomb in the car. The appellant came into the restaurant about an hour later and Scott said that when the appellant saw him he “was real nervous and real white” and “was shaken and had a real scared look on his face.” This impression of the appellant’s reactions was corroborated by other witnesses. There was testimony by a sergeant of the U. S. Army Explosive Ordnance Disposal Group, qualified as an explosive expert, that he dismantled the bomb and that had it exploded the driver of the car would have been killed. Police officers testified that the pipe comprising the bomb was a two-inch pipe coupling which had a notation “1.05” on it. Seventy-five hardware stores in the area were checked and at all of them the price of a similar coupling was ninety cents except at Candey’s Hardware Store where it was $1.05. The manager of Candey’s testified that a paint shaking machine at his store occasionally spattered paint into the bin containing such couplings, that the appellant had been a customer in the store and that the pipe found in the car was similar to those sold in his store. The police obtained several price tags from the bins which were spattered with paint. The police also found two rolls of wire at the Shanty Restaurant. E. B. I. experts testified that the wire in the bomb came from one of these rolls of wire, that paint particles found on the pipe portion of the bomb matched the paint particles on the price tags and that the powder used in the bomb was Hercules Bullseye Smokeless powder. The manager of a store called the Gun Hospital testified that on 17 December the appellant had purchased two cans of Bulls-eye gun powder and a can of Unique gun powder. Two electricians testified that about 18 December the appellant asked them where he could get a dynamite cap. Another witness testified that on a number of occasions the appellant had said he wanted to kill Scott, that he had to kill Scott and had asked for some poison. The appellant finally asked if the witness knew where he could get a dynamite cap. A cab driver testified that he had picked the appellant up about 2:30 P.M. on 21 December and driven him to a rural, wooded area on Tucker Road where the appellant went into the woods and returned with a long, thin bag containing a square object. He then drove him to the Shanty Restaurant and the appellant requested that the driver not show the Tucker Road stop on his manifest. The owmer of the Shanty Restaurant saw the appellant standing in front of the restaurant on 21 December about 5 :30 P.M. The appellant had a long, thin package, about 4 inches thick and 2 feet long. He drove the appellant to Branch Avenue Coffee Shop and saw the appellant place the package against the back of the shop under a box. A waitress at the coffee shop testified that the appellant had shown affection for Scott’s wife. Another waitress at the shop said that the appellant told her that he loved Scott’s wife and would go so far as to kill for her. Both testified that about 5 December the appellant had taken a shotgun shell from his pocket, poured out the powder and ignited it saying that a little bit would not hurt anyone but enough of it would blow somebody sky high. Scott testified that several months previously the appellant told him he could make a bomb out of shotgun shells, a pipe and caps. Another witness said that the appellant told him that if he could get some medicine that would kill a man it would be worth some money.

The appellant, testifying on his own behalf, denied any relationship with Mrs. Scott, denied purchasing gun powder at the Gun Hospital, alleging he purchased shotgun shells, denied driving by Scott’s home in the early morning of 22 December,, denied purchasing the pipe and denied any conversations about killing Scott. He admitted working at the Shanty Restaurant,, admitted driving a maroon and cream colored Ford on 21 and 22 December, admitted that he was an automobile mechanic and admitted that he had rather extensive training in making bombs. He said that if he had put the bomb in the car it “would have went off.”

I

The State in its opening statement said: “The Defendant, ~we will then show, was questioned on or about 27 December 'before Sheriff Jamieson and Detective Sergeant Husk, at which time he indicated that he did in fact know how to make a bomb — At this point, out of the presence of the jury, defense counsel objected, arguing that the State could not “go into any statement this Defendant made at this time,” asking, “what if it is not admissible?” The State said it would prove the statement was voluntarily made, and the court said that it would “deal with it at that time.” Defense counsel asked if the court would “then consider (the remarks) improper” — in the event the admission was ruled inadmissible, “would the court grant a mistrial?” and the court said, “We will have to face it at ' that time.”

On the fourth day of the trial the State called the Sheriff in rebuttal and during his testimony he said that he “conversed” with the appellant on 27 December in the interrogation room at the police station. “The conversation dealt with the construction of a bomb and Mr. Plumley, as I recall, drew us a diagram as to the construction of one * * * [H]e told us how one could be made, and indicated that he had the knowledge and ability to build one.” That testimony came into evidence without objection.

The appellant contends on appeal that the lower court erred in allowing this testimony in evidence. He concedes that the statements now challenged were not a confession but alleges 'that they were admissions and urges that they fell “within the doctrines” of Miranda v. Arizona, 384 U. S. 436. While it is correct that Miranda prohibits the admission of statements by an accused made during a custodial interrogation, be they inculpatory or exculpatory, in the absence of observance of the procedural safeguards enunciated, Miranda is not applicable as the appellant’s trial commenced before 13 June 1966. Crumb v. State, 1 Md. App. 98. Therefore, they were properly admissible if they were voluntarily made. Eor while an admission which is significantly incriminating but short of a confession, must, like a confession, have been made voluntarily and without -improper inducement to be evidence against the accused, the requirement on the State to show preliminarily to the judge, before its admission, that a confession is voluntary — unless the fact is conceded — does not apply to an admission. Stewart v. State, 232 Md. 318, 323-324. Here the admissions came into evidence without objection and there was no allegation below or on appeal that they were the product of force, violence, threats, inducements or promises. Since the appellant did not object to the introduction below on the ground that the admissions were involuntarily made, the question is not properly before us. Md. Rules, 1085; Gaudio and Bucci v. State, 1 Md. App. 455, 463. We do not agree that the colloquy between the court and defense counsel (not the same counsel as counsel on appeal) was sufficient to preserve the question. As to the contention that the court should have granted a mistrial, no motion for a mistrial was made at the time of the opening statement by the State (we think it clear that at that time counsel merely inquired of the court if it would grant a mistrial if the admissions were not admitted) nor thereafter (the admissions were admitted without objection). In the absence of a ruling by the court, there is nothing for us to review.

II and III

Doris Thompson, a waitress at the coffee shop, had given the State a statement in which she said that the day after the appellant was fired she had asked him if he had any idea of killing Scott or of getting someone to do it. The appellant told her he was not going to hurt Scott “but that it would all be over in a certain number of hours or by Monday night.” At the trial the State called her as its witness and asked if she had a conversation with the appellant about Scott. She replied, “No, the only — ”, at which point the State claimed surprise, asked that she be declared a hostile witness and requested permission to cross-examine her. The court said, “I think it is apparent she is either very forgetful or reluctant or something is wrong. I will permit you to cross-examine her.” The appellant contends on appeal that these remarks by the court constituted prejudicial error. But he made no objection to them at the time, made no motion to strike them nor did he request that a mistrial be declared. Prior to the remarks by the court the State had claimed surprise out of the presence of the jury and brought the contents of the statement made by her to the police to the attention of the court at which time the court stated that the witness was either reluctant or unwilling to testify. We think that the record was sufficient to show that the State was surprised by the testimony of the witness and that the court did not abuse its discretion in allowing the State to cross-examine her. See Green v. State, 243 Md. 154; Sellmam v. State, 232 Md. 344; Bruce v. State, 218 Md. 87; Meyerson v. State, 181 Md. 105. We do not think that Elmer v. State, 239 Md. 1, relied on by the appellant is apposite. In Elmer the State was not taken by surprise but asked the court to declare the witness to be a hostile witness and the court did so in the presence of the jury. We cannot say in the circumstances here that the remarks of the court prejudiced thé appellant’s right to a fair and impartial trial so as to require reversal of the judgment in the absence of objection.

IV

The appellant called the Sheriff of Prince George’s County to testify on his behalf and adduced evidence that the appellant was working with the Sheriff “in obtaining evidence against Mr. John Scott” and had obtained such evidence. On cross-examination the State’s Attorney asked the witness, “Do you have in your budget an assassination fund?” Objection was made to the question and sustained. The appellant contends that the asking of the question was prejudicial error. We do not agree. The appellant’s objection to the question was sustained and there was no motion for a mistrial. Therefore, under Maryland Rule 1085 there is nothing for this Court to review. Halstead v. State, 4 Md. App. 121. In any event we will not assume prejudice to the appellant and he had not shown that he was prejudiced in the circumstances. Charles v. State, 1 Md. App. 222; Borman v. State, 1 Md. App. 276.

V

On direct examination by the State a detective sergeant testified that he and another police officer participated in the investigation of the crime of which the appellant was being tried. He said that he had visited the Candey Hardware Store, had obtained price tags from a bin in which pipe was stored and delivered them to the F. B. I. He also obtained rolls of wire at the Shanty Restaurant and delivered them to the F. B. I. He identified the evidence. On cross-examination he was asked, “Weren’t you investigating John Scott also, for having got this bomb?” Objection to the question was sustained. Objection to the further question, “Who did you have under investigation on the 22nd or 23rd for setting this bomb?” was also sustained as “it exceeds the scope.” Out of the presence of the jury the court again said that the question exceeded the scope of cross-examination and defense counsel said that he would call the officer as a hostile witness and the court agreed that he could call him as a witness later. The officer was not called by the defense. The appellant contends that the court “unduly limited the defendant’s scope of cross-examination.” We find no error in the trial court limiting the question on cross-examination to the subject matter covered in the direct testimony of the witness. Ordinarily the scope of cross-examination is a matter within the sound discretion of the trial judge and we cannot say that in this instance the restriction imposed was unsound or prejudicial. Davis v. State, 1 Md. App. 581. Further, the appellant failed to call the witness as his own and thus is precluded from presenting the issue. Holt v. State, 3 Md. App. 544, 549.

VI

The appellant objected to the introduction in evidence of the various elements of the bomb on the ground that the State failed to show that they were the same items recovered at the scene of the offense. The record shows that when the army personnel removed the bomb parts from Scott’s automobile they were turned over to Detective Sergeant Duncan who transmitted them to F. B. I. Agent Smith. The articles were received back from the F. B. I. and retained by Duncan until introduced in evidence. There was no change, deletion or alteration in the articles. The appellant claims that the chain of custody was broken when the articles were in the possession of the F. B. I. because other agents than those who examined them may have had access to them. Where the inquiry is into the chain of custody “the question is one of reasonable probability that no tampering occurred.” Breeding v. State, 220 Md. 193. There was testimony here that no changes were made in the challenged articles except as necessary to test their composition. We find no merit in the contention.

VII

The appellant contends that the trial court “so badgered and belittled defense counsel during trial as to prejudice the jury against the defendant.” The trial consumed four days and produced a transcript of 548 pages. He cites two instances in which defense counsel was refused permission to approach the bench, three instances of “belittling remarks” by the court and two instances in which the court attempted to expedite the trial, the last of which, however, occurred out of the presence of the jury. During the trial counsel was allowed to approach the bench on a number of occasions and we find nothing improper in the refusal to allow him to do. so in the two instances stated. We have carefully reviewed the transcript and find nothing to indicate that the trial court was other than impartial or even that it was unduly impatient or brusque. See Bryant v. State, 207 Md. 565. The record does not show that the actions and statements of the trial court prejudiced the jury against the appellant so as to deprive him of a fair and impartial trial. Nor was any objection made at the trial to the remarks and actions of the court of which the appellant now complains. Md. Rules, 1085; Day v. State, 2 Md. App. 334, 341.

VIII

It took four days to conclude the evidence in the case. After the jury had been deliberating its verdict for seven hours the lower court, on its own motion, had them returned and asked the Foreman “if you are making any progress at all.” The Foreman said, “We can report progress.” The court said, over objection timely made: '

“Well, I have no desire to rush you into anything, but as you know, this case has been going on for four days now and ultimately it is going to have to be decided. If it can’t be decided by you then another jury is going to have to decide it.
The Court instructs you that you are instructed there are many cases in which absolute certaintly cannot be expected, although the verdict must be the verdict of each individual juror as the result of his own convictions and not a mere acquiescence in the conclusion of his fellows. Each one of you should examine the questions submitted with candor and with the proper regard in deference to the opinions of others. It is your duty to decide the case, if you can conscientiously do so.
And you should listen with a disposition to be convinced to each other’s arguments, if your views are contrary to those of the vast majority. You should consider whether your views, which make no impression on the minds of so many, equally intelligent jurors, are correct.
So, in light of these additional instructions, you will return to the jury room and deliberate further to this matter at this time.”

The appellant contends that the court erred in giving the additional charge.

With the exception of the first paragraph, the instructions given by the court constitute the “Allen charge,” so called because it was approved by the Supreme Court in Allen v. United States, 164 U. S. 492. Its propriety has been established in Maryland in both civil and criminal cases. Leupen v. Lackey, 248 Md. 19; Stewart v. State, 4 Md. App. 565. In Leupen the Court warned, at p. 25 :

“It must not be supposed that an Allen charge is proper in every case. There well may be facts and circumstances in a given case which would make such a charge either inadvisable or require the trial judge to exercise great care and restraint in presenting it to the jury.”

Considering the length of the trial and the length of time the jury had been deliberating, we cannot say that the actual charge was improper in the instant case. But there remains the consideration of whether the remarks of the trial court immediately preceding the actual charge were proper. In Lewpen the court stated, at p. 25, that it would be well for the lower court in any case to keep in mind the language found in 1 Branson’s Instructions to Juries (3rd Ed. A. Reid 1960 Replacement) and it quoted:

“The trial judge may advise an unagreed jury of the importance of their reaching a verdict, if they can do so without surrendering their conscientious convictions. But he cannot go beyond that and say anything to the prejudice of either party. There is no prescribed language that he must use in this connection. What he may with propriety say must in a large measure be left to his good judgment. But as the exclusive right to agree or not to agree rests with the jury, the judge must not by threat or entreaty attempt to coerce a verdict or to exert his authority to force an agreement; nor must he under any circumstances or in any manner indicate the character of verdict that the jury should return.
While there must be nothing in the conduct of the trial judge toward the jury savoring of undue pressure or coercion to reach a verdict, when the jury return into court and announce their failure to agree, the court may impress upon them the importance of agreeing, urge them to listen to argument and sacrifice the pride of personal opinion, and he may send them back for further deliberation until such time as it becomes apparent that hope of an agreement is futile.” Id. at 149-50.

So such language as the jury has “got to reach a verdict” and “this court expects a verdict” has been held to savor of coercion or undue pressure. In the instant case, considering the language employed in the actual charge, we do not think that the introductory remarks of the court were to the prejudice of the appellant and we do not construe them as an attempt to coerce a verdict, to force an agreement, or as an indication of the character of verdict that the jury should return. We find no error requiring reversal with respect to the additional charge.

IX and X

The appellant contends that the conviction “was contrary to atid against the weight of the evidence.” This Court does not inquire into and measure the weight of the evidence in jury trials, Thompson v. State, 4 Md. App. 31, or in non-jury trials, Trout v. State, 3 Md. App. 259. And in jury trials this Court will not review the sufficiency of the evidence in the absence of a motion for judgment of acquittal. Culver v. State, 1 Md. App. 406; Quinn v. State, 1 Md. App. 373. At the close of the evidence offered by the State, the appellant moved for judgment of acquittal which was denied. He then offered evidence and by so doing withdrew that motion. Md. Rules, 755b. The record does not disclose that a motion for judgment of acquittal was made at the close of all the evidence. Therefore the question of the sufficiency of the evidence is not before us. Jason v. State, 1 Md. App 136. In any event the test in reviewing the sufficiency of the evidence in a jury case when the question is properly preserved is whether any relevant evidence which could have sustained the conviction was given to the jury. Tillery v. State, 3 Md. App. 142. We think that the evidence here met this test.

Judgment affirmed.

      . On cross-examination Scott admitted that he “had heard rumors” that the appellant had “put the finger” on him, informing the police of certain alleged activities, leading to charges and subsequent convictions of receiving stolen property and illegal possession of slot machines. See Scott v. State, 1 Md. App. 481.

      . Prior to the testimony now challenged, relating to the appellant’s knowledge of and ability to construct a bomb, the testimony of the appellant on cross-examination amply demonstrated such knowledge and ability, which he had acquired, according to him, during service with the Marine Corps. At one point he said, “Sir, I could make a bomb if I had the implement, to blow up the whole block.”

      . Allen was decided 7 December 1896. In more recent times it has been subject to some criticism on the basis that it provides too great a possibility of a minority of the jury being in effect coerced by the court to abandon their view. See, State v. Randell, 137 Mont. 534, 353 P. 2d 1054 (1960); State v. Thomas, 86 Ariz. 161, 343 P. 2d 197 (1959); note, 53 Va. L. Rev. 123 (1967); note, 31 U. Chi. L. Rev. 386 (1964).

      . Jenkins v. United States, 380 U. S. 445.

      . Orr v. State, 40 Ala. App. 45, 111 So. 2d 627 (1958).

      . See also United States v. Harris, - F. 2d -, 2 Cr. L. Reptr. 2506; Powell v. United States, 297 F. 2d 318 (5th Cir. 1962); United States v. Rogers, 289 F. 2d 433 (4th Cir. 1961).

      . The original appeal noted by the appellant was dismissed by order of this Court on 31 August 1967 upon motion by the State under Md. Rule, 1035b4. The appeal here decided was granted by order of 37 September 1967 of the Circuit Court for Prince George’s County as a belated appeal under post conviction procedures.


text:
    WILLIAM EDWARD BEARD v. STATE OF MARYLAND
    [No. 281,
    September Term, 1967.]

      Decided August 13, 1968.

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

      Douglas N. Sharretts, with whom was Louis Peregoff on the brief, for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Clewell Howell, Jr., Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant was tried at a court trial in the Circuit Court for Baltimore County under a four count indictment charging ■forgery, procuring forgery, uttering a forged document and obtaining money by false pretenses. He was found guilty of uttering and the State entered a stet as to each of the other counts. The appellant was sentenced to imprisonment for a term of ten years.

The appellant contends that he could not be convicted of the crime of uttering a forged document since the proof showed that he not only committed an uttering, but completed the of fense of obtaining money by false pretenses. He argues that the two offenses merged, the greater offense absorbing the lesser, thus precluding a conviction of the lesser offense. He cites Sutton v. State, 2 Md. App. 639. This Court has stated that the common law doctrine of merger is now not followed in Maryland but that a modern concept of merger of offenses has been adopted. Chittum v. State, 1 Md. App. 205. The true test under the modern doctrine is whether one crime necessarily involves the other. Tender v. State, 2 Md. App. 692. That is to say, when the facts necessary to prove a lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense. Dunlap v. State, 1 Md. App. 444. The rationale of the modern doctrine is that a person should not be twice punished for the same acts whether the offenses charged by reason of such acts be deemed to be inconsistent, duplicitous or to have merged. Tender v. State, supra. Thus, with regard to merger, in a trial on multiple charges, the doctrine is applicable only to preclude multiple convictions on merged offenses. Gee v. State, 2 Md. App. 61. So in Sutton, where the only false representation was the uttering, which was an essential part of the conviction for false pretenses, the doctrine applied to prevent the convictions of both false pretenses and uttering and we vacated the uttering conviction. But in Lievers v. State, 4 Md. App. 219 the judgment upon conviction of uttering was affirmed, the doctrine of merger not applying because there was no conviction of false pretenses, a nolle prosequi having been entered to the count charging that offense. In the instant case the appellant was convicted only of uttering, a stet having been entered to the count charging false pretenses. Therefore the doctrine of merger did not apply. As the doctrine was not applicable, the uttering offense did not, in any event, merge into the offense of false pretenses and the contention of the appellant fails.

In Boone v. State, 2 Md. App. 80, 114 we said that a failure to consummate a crime is an essential element of an attempt to commit the crime and that evidence that a crime has been committed will not sustain a verdict on an attempt to commit it. The appellant suggests that since money was obtained by him by means of the forged check, which check was the basis of the uttering conviction, the crime of obtaining money by false pretenses was consummated. Thus, he argues, the uttering conviction was improper because the uttering was merely an attempt to obtain money by false pretenses. We do not so consider it in the instant case. Uttering, Md. Code (1967 Repl. Vol.), Art. 27, § 44, and obtaining money by false pretenses, Code, supra. Art. 27, § 140 are separate and distinct crimes. Although, as we have stated, under proper circumstances, an uttering offense may merge into a false pretense offense, attempting to obtain money by false pretenses is also a separate and distinct offense. Franczkowski v. State, 239 Md. 126. While evidence that the offense of obtaining money by false pretenses was consummated may not sustain a conviction of attempting that offense, it does not follow that such evidence precludes a conviction of uttering, especially when, as here, there was no conviction of the offense of obtaining money by false pretenses and no merger of the uttering offense into the false pretense offense.

The appellant also contends that “the admission into the evidence of the alleged forged check without any direct proof that such check had been dishonored by the Union Trust Company of Maryland on which it was drawn” was reversible error. He urges that the “best evidence” to prove .that the check was dishonored was not offered and that the State should have produced “the direct testimony of the Union Trust Company through any of its accredited cashiers or bookkeepers that the check was a forgery and that it would not honor it.”

An employee of the Chesapeake National Bank testified that appellant presented to her a check in the amount of $3800 which she cashed. She identified the check and it was admitted in evidence over objection. It was dated 24 October 1966, drawn on the Union Trust Company, signed by “Carl Bassett” as the maker and was to the order of “John Williams.” It was endorsed “John Williams.” Another employee of Chesapeake testified that he personally presented the check for payment to the manager of the bookkeeping department of the Union Trust Company. “The result as so stated here (on a slip attached to the check) was that it was an unauthorized signature and the check was reported as stolen * * * It was dishonored.” This testimony came in without objection. On cross-examination he stated that he received the information “firsthand from the manager of the Union Trust Company.” On the back of the check were the initials “E. E.” under the term “OK”, indicating that Earl Logue, an assistant vice-president of Chesapeake, had authorized that it be cashed. Mr. Logue testified that the initials were not placed on the check by him and that he had not seen it until after it had been cashed. There was placed in evidence by stipulation that the check was not signed by Carl Bassett, the purported maker. We find no error in the admission of the check in evidence and do not think that the “best evidence” rule as urged by the appellant was applicable. See Lamot v. State, 2 Md. App. 378, 382-383. The check was identified by the person who gave the appellant the money when the appellant presented it. There was direct evidence that it had been dishonored when presented to the bank on which it was drawn. Although the reasons why it was dishonored may have come into evidence as hearsay testimony, there was no objection to that testimony. Baker v. State, 3 Md. App. 251; Culver v. State, 1 Md. App. 406. And evidence that the name of the maker was forged was in evidence by stipulation.

Although the appellant does not challenge the sufficiency of the evidence to sustain the conviction, we note that the mere offer of a false instrument with fraudulent intent constitutes an uttering. Draper v. State, 231 Md. 423; Levy v. State, 225 Md. 201.

Judgment affirmed.

      . The elements of an attempt to obtain money by a false pretense are an intent to commit it, the doing of an act towards its commission, and the failure to consummate its commission. It is not necessary in order to establish an intent that the potential victim was deceived and had parted with money or property. Franczkowski v. State, supra, 127.