author: AndRrson, J.,

text:
    STEVEN RICHARD LIEVERS, JR. AND JAMES McLEAN v. STATE OF MARYLAND
    [No. 242,
    Initial Term, 1967.]

      Decided April 10, 1968.

    The cause was argued before Anderson, Morton, Orth, and Thompson, JJ., and Digges, J., Chief Judge of the Seventh Judicial Circuit, specially assigned.

      Bernard F. Goldberg and Douglas N. Sharretts for appellants.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Thomas J. Nissel, State’s Attorney for Howard County, and James N. Vaughn, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   AndRrson, J.,

delivered the opinion of the Court.

Appellants Steven Richard Lievers, Jr. and James McLean, together with Ernest Cherry, John E. Bell, and Samuel Terry, were charged in the Circuit Court for Howard County under a three-count Criminal Information (No. 3458), substantially as follows:

(1) That on March 19, 1965, in Howard County, Maryland, they did unlawfully conspire to cause and procure to be falsely made, forged and counterfeited a certain check made payable to Steven Thompson, dated March 18, 1965, in the amount of $104.87, with intent to defraud.
(2) That on the same day, in the same county, they did unlawfully conspire to utter and publish as true a false, forged, altered and counterfeited check, being the same check as above described in count one, with intent to defraud.
(3) That on the same day, in the same county, they did unlawfully conspire by a certain false pretense to obtain from Rock Hill Corporation cash in the amount of $104.-87, with intent to defraud.

Appellants, together with the above named co-defendants, were also charged under Criminal Information No. 3459, as follows:

(1) That on the same day, in the same county, they did unlawfully conspire to hold and use a forged and counterfeited Maryland chauffeur’s license issued to Steven Thompson, knowing such license to have been altered, forged and falsified, with intent to defraud.
(2) That on the same day, in the same county, they did unlawfully conspire to utter and publish as true, a false, forged, altered and counterfeited Maryland chauffeur’s license issued to Steven Thompson, with intent to defraud.

Tried before the Circuit Court for Howard County (Macgill, C. J., presiding without a jury), appellants were convicted on each count of Criminal Information No. 3458, and on the first count of Criminal Information No. 3459. Appellant Lievers was sentenced to ten years in the Maryland Penitentiary on each count of Criminal Information No. 3458, sentences to run concurrently, and five years on the first count of Criminal Information No. 3459, to run consecutively with the ten-year sentence. Appellant McLean was sentenced to five years in the Maryland Penitentiary on each of the three counts of Criminal Information No. 3458, sentences to run concurrently, and two years on the first count of No. 3459, to run consecutively with the sentences imposed in No. 3458. From these judgments, appellants have appealed, contending (a) that they were illegally arrested and, consequently, articles seized from them without a search warrant were improperly admitted into evidence, and (b) that venue of the conspiracies was improperly laid in Howard County, and (c) that the testimony at trial of accomplices in the conspiracies was not corroborated, and (d) that they were improperly convicted of four conspiracies when, at most, only one conspiracy was shown by the State’s evidence.

The evidence adduced at the trial showed that William Wilson and James Jason, while awaiting trial on certain criminal charges, had agreed to aid the police in breaking up a bogus check ring; that Wilson advised Corporal Armond Elliott of the Baltimore County Rackets Squad that he had been invited by appellant Lievers to participate on March 19, 1965 in the activities of the ring and was to meet with Lievers and the others at noon at the Twelve and A Half Club in Baltimore City; that Corporal Elliott went to this location at the appointed time and, through binoculars, observed appellant Lievers and John Ellis Bell, sitting together in a 1963 Pontiac in front of the Club; that he observed Bell pass a small brown paper bag to Lievers, who opened it, pulled out some green pieces of paper which appeared to be checks, look at them, and return them to the bag; that Lievers then left the Pontiac and joined appellants McLean, Cherry, Terry, Jason and Wilson, in a 1959 brown and white Oldsmobile; that the Oldsmobile and its six passengers —• appellants Lievers and McLean, Terry, Cherry, Jason, and Wilson—thereafter drove away, shortly after which Elliott arrested Bell and notified Lt. Michael Kradz of the Howard Comity Police Department by phone to be on the lookout for the Oldsmobile and its six passengers.

The evidence further discloses that Lt. Kradz had been investigating the activities of appellant Lievers and John Bell since January of 1965 and that with Corporal Elliott, had arranged for the assistance of Wilson and Jason in breaking up the operations of the bogus check ring; that after Kradz had talked with Elliott by phone on March 19, he received a call from Wilson who informed him, in effect, that the 1959 Oldsmobile, which he described, together with its six occupants, was proceeding in a designated direction toward Howard County to cash bogus checks; that as a result of the call from Wilson, Kradz stationed men along the route of the Oldsmobile’s travel and first observed it as it parked at Gabriel’s liquor store in Baltimore County; that Kradz saw three of the occupants of the Oldsmobile, one of whom was appellant McLean, enter the store; that after they departed from the store, the Oldsmobile picked them up and proceeded into EHicott City in Howard County, where they parked on a parking lot and the same three persons entered the Rock Hill liquor store; that Lt. Kradz then went over to the Oldsmobile and told appellant Lievers that he was under arrest, immediately after which he went into the Rock Hill liquor store where he learned from the proprietor that a tall Negro with a mustache, wearing an Army field jacket and a green sweat shirt and a hood had attempted to cash a check; that Kradz left the store and arrested appellant McLean, who answered the description provided by the liquor store proprietor; and that McLean turned over to Kradz a brown envelope containing a Robert C. Herd & Co. check made payable to Steven Thompson for $104.87, a voter’s card, Social Security card, and a chauffeur’s license, all of which were in the name of Steven Thompson, and all of which proved to be forgeries and counterfeits.

Following the arrests, the Oldsmobile was taken to the Howard County police station where a search of its interior revealed a brown paper bag containing a number of checks, identification cards, and chauffeurs’ licenses made out in the name of various individuals, all of which also proved to be forgeries and counterfeits. The documents taken from McLean and seized from the Oldsmobile in which Lievers was a passenger at the time of his arrest were introduced into evidence over objection.

It was shown at the trial through the testimony of Wilson, Jason, Cherry, and Terry that appellant Lievers provided appellant McLean and the other occupants of the Oldsmobile with forged checks and identification cards, including forged and counterfeited Maryland chauffeurs’ licenses, for the purpose of having the checks negotiated, and that this mode of operation was pursued, albeit unsuccessfully, both at Gabriel’s liquor store in Baltimore County and at the Rock Hill liquor store in Howard County on March 19.

Evidence was also adduced at the trial to show that prior to appellant Lievers’s arrest, Corporal Elliott had obtained an arrest warrant for him for offenses committed in 1964, which he served upon Lievers after he had been arrested by Kradz. In addition, there was evidence showing that prior to the time Kradz arrested Lievers, he had been informed over his police car radio that a warrant was outstanding for Lievers’s arrest for a prior offense, and that Lievers’s arrest was based, at least in some part, upon Kradz’s knowledge of this warrant.

At the conclusion of the State’s case, the appellants moved for judgments of acquittal, which were denied. Neither Lievers nor McLean took the witness stand and both declined to testify. The defense offered no evidence and appellants renewed their motions for judgments of acquittal, which were again denied.

I

We find no merit in appellants’ contention that they were unlawfully arrested and that the incriminating articles seized from them were inadmissible in evidence. It is, of course, well settled that a police officer may arrest a suspect without a warrant if he has probable cause to believe that a felony has been or is being committed and that the arrestee has committed or is committing the offense. Capparella v. State, 235 Md. 204; Young v. State, 234 Md. 125. It is equally well settled that probable cause exists where the facts and circumstances within the knowledge of the arresting officer or of which he has reasonable trustworthy information are sufficient to warrant a reasonably cautious man in arriving at that particular conclusion. Duffy v. State, 243 Md. 425; Edwardsen v. State, 231 Md. 332. We think it clear that the arresting officer, Iff. Kradz, had reasonable grounds to believe that a felony had been or was being committed and that appellants were participants in its commission. The evidence shows that Kradz had knowledge of the bogus •check ring and of Lievers’s involvement with it for more than '.two months prior to March 19, 1965, the day of the arrest, and that he had been advised by his informer, who was working directly with the ring, that they were going to operate that day. This information was verified, in part at least, by Corporal Elliott who had seen the suspected criminals together earlier that day in Baltimore City. Kradz was provided with a description of the vehicle in which the suspects were riding and observed them in an apparent attempt to cash a check in Baltimore County. While it does not appear from the evidence that Lt. Kradz had verified information prior to arresting appellants that they attempted to cash a check at Gabriel’s liquor store, he did know, prior to arresting appellant McLean, that such an attempt had been made by McLean at the Rock Hill liquor store in Howard County. It is elementary that the mere offering of a false instrument with fraudulent intent constitutes an uttering —a felony—regardless of its successful consummation. See Draper v. State, 231 Md. 423; Levy v. State, 225 Md. 201. We hold, therefore, that Kradz was justified in concluding, under all the circumstances then known to him, that appellant McLean had committed a felony, so that his arrest was clearly lawful and the documents taken from him at that time incident to such lawful arrest were properly admitted in evidence. While appellant Lievers was arrested just prior to the time of McLean’s arrest, and hence prior to Kradz’s actually knowing that McLean had attempted to cash a check in the Rock Hill liquor store, we believe it evident that Kradz’s knowledge of the ring’s activities at the time he arrested Lievers was such that he had probable cause to conclude that Lievers was, with McLean and the others, also engaged in the commission of a felony, viz., the uttering of forged checks. It is, furthermore, clear that Kradz’s knowledge of the outstanding warrant for appellant Lievers, communicated to him over his car radio, was sufficient justification in and of itself to make lawful Lievers’s arrest. See St. Clair v. State, 1 Md. App. 605. We hold, therefore, that the seizure of the brown paper bag from the Oldsmobile in which appellant Lievers was seated when arrested was also lawful. See also Lewis v. State, 2 Md. App. 678.

II

Appellants next contend that the conspiracies charged in both Criminal Informations occurred and were completed in Baltimore City and the venue of the offenses was thus improperly laid in Howard County. They argue that even accepting the State’s contention that acts in furtherance of the conspiracies took place in Howard County, nevertheless, such acts did not create a second conspiracy, but were simply acts in furtherance of the substantive crimes of attempting to obtain money by false pretenses or attempting to utter and publish false or counterfeit documents, neither of which substantive offenses were charged against them in these proceedings.

While it is generally held that a conspiracy may be prosecuted where the illegal agreement arose, or where an overt act in furtherance of the agreement occurred, we think the short answer to appellants’ contention is that they waived objection to the venue of the offenses in Howard County by their failure to timely object thereto and by pleading to the charges. See Cole v. State, 232 Md. 111, 118; Medley v. Warden, 210 Md. 649, 653; Kisner v. State, 209 Md. 524. Nor do we find merit, under the circumstances of this case, in appellants’ contention that such a waiver should be excused since the importance of venue was not known to them until they heard the State’s evidence relating to the uttering and forging of the checks and documents.

III

Appellants’ third contention is that the State’s witnesses, Wilson, Jason, Terry and Cherry, were co-conspirators and not informers, and, therefore, as accomplices, their testimony was required to be corroborated.

According to the testimony of Corporal Elliott and Lt. Kradz, the help of Wilson and Jason had been solicited in an effort to break up the bogus check ring in which Lievers was one of the principal participants. The testimony showed that Wilson made two telephone calls on the day of the arrest, one to Corporal Elliott and one to Lt. Kradz, advising them that the bogus, check ring would operate that day and of the planned foray into Baltimore and Howard Counties for that purpose. The lower court found Wilson to be an informer and pointed out that it is hardly likely that Wilson would have telephoned the police with information of the impending check cashing operation had he been criminally involved as a co-conspirator.. Even assuming that all four of these witnesses were co-conspirators, there was abundant evidence sufficient to corroborate their testimony in the observations made by Corporal Elliott and Lt. Kradz and the events that occurred on that day. Accordingly, we find no merit to this contention.

IV

Appellants’ fourth and final contention is that the lower court erred in finding them guilty of four crimes when, in fact, only one crime existed according to the State’s evidence. They argue that the State’s testimony related exclusively to an alleged meeting of the minds in Baltimore City to pass bogus checks in Howard County and that each of the elements forming the subject matter of the conspiracy was listed in separate counts and even separate informations, when, in substance, they were all elements which made up only one conspiracy, namely, to defraud through the use of bogus checks; and that therefore the finding of guilt as to separate offenses of conspiracy was in error.

As indicated, appellants were convicted of (a) conspiracy to forge a designated check in the amount of $104.87, (b) conspiracy to utter said forged check, (c) conspiracy to obtain $104.87 from a designated corporation by a “certain” false pretense, and (d) conspiracy to hold and use a designated forged and counterfeited Maryland chauffeur’s license. In Tender v. State, 2 Md. App. 692, we held 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. The true test of merger of offenses is whether one crime necessarily involves the other. Green v. State, 243 Md. 73. Thus in Sutton v. State, 2 Md. App. 639, we held, on the facts of that case, that the substantive offense of uttering merged into the offense of false pretenses where the false representation consisted only of the uttering. It appears to us from the evidence in this case that the conspiracy to utter merged into the conspiracy to obtain money by false pretenses since no false representation independent of the uttering of the forged check itself is shown by the evidence.

Holding and using a forged Maryland chauffeur’s license with fraudulent intent is a felony under Section 77 (4) of Article 66^3 of the Maryland Code (1967 Repl. Vol.). We think it clear that appellants’ conviction for conspiring to hold and use such a document clearly charges an act separate and distinct from any of the conspiracies charged under Criminal Information No. 3458 and is indeed broader in scope than the other conspiracies since it is not limited to an agreement to hold and use such forged license solely in connection with an illegal effort to negotiate a forged check made payable to Steven Thompson in the amount of $104.87, dated March 18,1965.

As to each appellant under Criminal Information No. 3458:

Judgments affirmed as to the first and third counts; judgments vacated as to the second count as merging with the third count.

As to each appellant under Criminal Information No. 3459:

Judgments affirmed.

      . Appellants suggest that they are only charged with the crime of conspiracy and not with the substantive crimes of forgery, uttering and false pretenses and that since conspiracy is a misdemeanor, their arrests cannot be rendered valid if based upon probable cause to believe that a felony had been committed. We find no merit to this argument. If the circumstances make an arrest legal for one crime there may be a reasonable seizure of goods unlawfully in the possession and under the control of the one arrested and a consequent right to use them as evidence in a trial for a crime different from that which justified the arrest. Braxton v. State, 234 Md. 1; Edwards v. State, 196 Md. 233; Nichols v. Warden, 232 Md. 663.

      . See 16 Am. Jur. 2d, Conspiracy, §18, p. 137; Hyde v. United States, 225 U. S. 347; Brown v. Elliott, 225 U. S. 392. See also Greenwald v. State, 221 Md. 245; Archer v. State, 145 Md. 128; Bloomer v. State, 48 Md. 521.


source: Caselaw Access Project

author: Piír Curiam.

license: Public Domain

text:
    BERNARD JONES, JR. v. STATE OF MARYLAND
    [No. 163,
    September Term, 1967.]

      Decided April 10, 1968.

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

      Robert F. Freeze for appellant.

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

The appellant was found guilty in the Criminal Court of Baltimore at a court trial of the following offenses and was sentenced as designated: assault upon Henry Naiditch, 2nd count of indictment No. 5272—5 years; robbery with a deadly weapon, 1st count, attempted robbery with a deadly weapon, 2nd count, robbery, 3rd count, assault with intent to rob, 4th count, and assault, 5th count of indictment No. 5273, all regarding Henry Naiditch—20 years generally, consecutive with the sentence under indictment No. 5272; assault upon Julius Green, 2nd count of indictment No. 5275—sentence suspended generally; assault upon Francis Kuhn, 2nd count of indictment No. 5276 —5 years consecutive with the sentence imposed under indictment No. 5273; robbery with a deadly weapon of Edward Zorn, 1st count of indictment No. 5277—10 years consecutive with the sentence imposed under indictment No. 5276.

On the 6th of November 1965, Henry Naiditch, the owner of a grocery store at 400 East Federal Street which had been “in his family for over 30 years” arrived at the store at 7:35 A.M. At 8:15 A.M. two men walked in. One, said to be Lorenzo Davis, had a sawed-off shotgun and the other, whom Naiditch identified at the trial as the appellant, had a revolver. There were four other persons in the store at the time — two children and Francis Kuhn, who were customers, and a milk man, Julius Green. Jones stood by the door and Davis came to the counter, pointed the shotgun at Naiditch and said, “This is it.” Naiditch remained motionless behind the counter with his “hands in the air.” Kuhn, standing by the counter, was told by Davis to move over. Being hard of hearing he did not respond immediately and Davis hit him on the head “about five times” with the butt end of the shotgun. He fell to his knees in a daze. (He suffered a fractured skull and was confined to the hospital for 12 days). Jones, saying, “This is what you get for being a hero,” hit Naiditch on the head, knocking him down. (He was treated for the injury at the hospital and 5 stitches were necessary to close the wound). The robbers took about $2100 in cash from Naiditch, his wallet containing about $30 and a ring valued at $300. During the course of the robbery, Edward Zorn came in the store to service the furnace. Jones herded him at pistol point to a corner of the room with the others who were in the store. Jones ripped Zorn’s pocket open and took his wallet and keys. The wallet contained $113 and personal cards and records. Zorn saw Kuhn “bleeding profusely.” The robbery took about 15 minutes. As the robbers were leaving, a customer, Mary Watty, who lived over the store, started to enter the store. The robbers were “backing out,” one with a shotgun, and she got no farther than the steps, standing there “petrified” because she knew them and “I had no idea what either one of them might have done to me knowing that I knew them.” Jones said, “Run, man,” and they “ran north on Barclay Street and behind the 400 block of East Federal Street.” She then entered the store “and everything was a mess in there and this man, Mr. Kuhn, was sitting in the corner where they keep the bread and his face was just a mass of blood.” There was a positive courtroom identification of Jones, not only by Naiditch, but by Mary Watty, who knew him prior to the robbery by sight and by name, as he frequently came in the club where she worked, and by Zorn.

The appellant contends that the evidence was not sufficient to sustain the convictions arguing only that, although his presence on the scene at the time of the commission of the crime was proved, there was no proof that he participated in the perpetration of the crimes. Watson v. State, 208 Md. 210, relied on by the appellant, is in no way apposite to the instant case. In Watson the Court held that a witness produced by the State was not an accomplice to the crime, although present when it was committed, because there was no evidence that the witness aided or abetted the crime or encouraged it or knew that the crime was going to be committed by the perpetrator until it was committed. Here it is clear from the evidence that Jones and Davis were both active participants in the robberies and were equally culpable in the offenses incident thereto. In reviewing the sufficiency of the evidence, we have no difficulty in determining that the trial court had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the appellant’s guilt of the crimes of which he was convicted. Grice v. State, 2 Md. App. 482; Md. Rules, 1086. However, the appellant also contends that the conviction of assault upon Naiditch (indictment No. 5272) and the convictions under the first five counts under indictment No. 5273 “were clearly improper,” alleging merely that the crime charged in No. 5272 “clearly embraced” the crimes charged in No. 5273. We think that, by the evidence, the assault upon Naiditch charged in indictment No. 5272 was a separate and distinct crime from the robbery with a deadly weapon charged in indictment No. 5273 and therefore there was no merger of the two offenses. Tender v. State, 2 Md. App. 692; Cottrell v. State, 1 Md. App. 520. With regard to the convictions under indictment No. 5273, the conviction of attempted robbery with a deadly weapon (2nd count) was not consistent with the conviction of robbery with a deadly weapon. Failure to consummate the commission of an offense is a necessary ingredient in an attempt to commit that offense, and having been convicted of committing the robbery with a deadly weapon, the appellant could not be found guilty of failing to commit it. Boone v. State, 2 Md. App. 80, 114-115. Inconsistent verdicts of guilty under different counts of the same indictment, when both counts depend upon the same alleged acts, cannot stand. Price, etc. v. State, 3 Md. App. 155. In Darby v. State, 3 Md. App. 407, we held that Md. Code (1967 Repl. Vol.), Art. 27, § 488 does not create a new substantive crime of “robbery with a deadly weapon” but merely provides a statutory penalty for the existing crime of robbery more severe when the robbery is committed with a deadly weapon than when it is not. Therefore, upon the conviction of the appellant of robbery with a deadly weapon, the conviction of robbery (3rd count) based on the same alleged acts, was a conviction on a duplicitous count. Under the rule of merger of offenses followed in this State the assault with intent to rob (4th count) merged into the robbery with a deadly weapon (1st count) for it is clear in the instant case that in proving the robbery with a deadly weapon the assault with intent to rob was also proved. Tender v. State, supra, at 699. Having found that the assault under No. 5272 was a separate and distinct crime from the robbery with a deadly weapon under No. 5273, the assault charged in the 5th count of No. 5273, if considered as based on the same acts proving the conviction of the assault in No. 5272, is duplicitous, charging the same crime. If considered as based on the acts pertaining only to the robbery with a deadly weapon, it merges into the robbery with a deadly weapon. In either event, the conviction under the 5th count cannot stand. This Court recognizes 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, at 700. The sentence under indictment No. 5273 was a general one, covering the convictions under each of the five counts. “A general sentence covering more than one count is not improper, if the sentence does not exceed in the aggregate the sentences which might have been imposed cumulatively under the several counts.” Gatewood v. State, 244 Md. 609, 620. Thus our reversal of the judgments under the 2nd and 3rd counts and our vacating of the judgments under the 4th and 5th counts of indictment No. 5273 do not invalidate the general sentence imposed. Price, etc. v. State, supra.

The appellant contends that the trial court erred in admitting the courtroom identifications of him “after lineup identification without an attorney.” He relies on United States v. Wade, 388 U. S. 218. This Court has construed the rule enunciated in Stovall v. Denno, 388 U. S. 293, to hold that the principles of Wade and Gilbert v. California, 388 U. S. 263, apply only to lineups conducted after June 12, 1967 and we apply them only in accordance with that construction. Tender v. State, supra, at 696. As the lineup in the instant case was conducted prior to June 12, 1967, there was no violation of the appellant’s rights by the absence of his attorney, and the challenged testimony was properly admitted.

The appellant also contends that the sentences imposed were “improper and illegal.” This contention is based on the premise that the conviction of assault under indictment No. 5272 was improper. As we have found to the contrary, the contention fails. The sentences imposed were each within the maximum authorized by law, and the imposition of consecutive sentences was not cruel and unusual punishment. The appellant does not allege, and the record does not show, that they were dictated by passion, prejudice, ill-will or any other unworthy motive. They were imposed within the discretion of the trial court, properly exercised. See Allen v. State, 2 Md. App. 740; Lawrence v. State, 2 Md. App. 736; Lynch v. State, 2 Md. App. 546; Miller v. State, 1 Md. App. 653; Fisher v. State, 1 Md. App. 505.

The appellant, in proper person, submitted a “supplement” to the brief filed by his attorney. There is no provision in the Maryland Rules of Procedure for the filing of a brief by an appellant to supplement the brief filed by his attorney and we do not consider it to be in the interest of the orderly administration of justice to consider it. Crossland v. State, 2 Md. App. 722. In any event, those questions presented by it, not disposed of by this opinion, raise issues not tried and decided by the lower court and, therefore, are not properly before us. Md. Rules, 1085.

As to indictments Nos. 5272, 5275, 5276 and 5277—judgments affirmed: As to indictment No: 5273:

Judgment under the first count affirmed;

Judgments under the second and third counts reversed;

Judgments under the fourth and fifth cotints vacated as merging with the first count.

      . The trial court granted a motion by the appellant’s counsel to strike the testimony of Kuhn concerning the identification of the appellant at a lineup and at the trial.


author: Murphy, C. J.,

text:
    ROSEMARY KING JONES v. STATE OF MARYLAND
    [No. 180,
    September Term, 1967.]

      Decided April 10, 1968.

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

      G. Denmead LeViness for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moyian, Jr., State’s Attorney for Baltimore City, and Joseph R. Raymond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellant, Rosemary King Jones, was found guilty generally by the court sitting without a jury on a three-count indictment charging sale, possession and control of narcotics and of being a second offender under an addendum to the indictment. Sentenced to imprisonment for eight years under a general verdict, she contends on this appeal (a) that she was denied due process of law because of the unreasonable delay between the date of the alleged offense and the date of her arrest, and (b) that there was insufficient evidence presented by the State to justify the convictions.

The record discloses that at noon on August 10, 1966, Frederick Bland, an undercover agent for the Federal Bureau of Narcotics, and an unnamed informant, were sitting in their car when a person,, later identified as the appellant, approached them and asked “what we were looking for.” The two men told appellant that they wanted bags of heroin and gave her $30.00 to make the purchase. Within a short time thereafter, appellant returned to the car and gave the agent two bags of heroin. The day following this transaction, Agent Bland identified a mug shot of the appellant as being the person who sold him the two bags of heroin on August 10. A few days thereafter, the drugs were subjected to chemical analysis and proved to contain heroin hydrochloride.

Agent Bland testified that he obtained a warrant for appellant’s arrest on December 14, 1966, some four months after the commission of the crime. He testified that the delay in obtaining the warrant was attributable to the fact that the Federal Bureau of Narcotics and the Baltimore City Police Department were making an intensive investigation and that to have made an earlier arrest “would have impaired the entire operation.”

Appellant testified at the trial that she had no recollection of what she was doing, nor where she was, on August 10, 1966. She stated that although she was a drug addict, she did not see Agent Bland on August 10 and she testified further that it was not until December 31, 1966 that she was actually arrested.

We find no merit in appellant’s contention that she was denied due process of law because of the unreasonable delay between the date of the offense (August 10) and the date of her arrest (December 31). After hearing the testimony, the lower court concluded that federal and city police “were in the process of working up a case and did not want to do anything to disturb the status of the informant.”

It is, of course, clear that mere delay in procuring an arrest warrant, in and of itself, does not constitute prejudicial error. In Brown v. State, 1 Md. App. 571, the defendant violated the narcotics laws on August 26 and 27, 1965, and was not arrested until November 12, 1965. It was there alleged, as it is here, that the delay violated appellant’s constitutional rights. We observed in Brown that the evidence showed that the delay in procuring the defendant’s arrest on a warrant was occasioned by the existence of undercover work which would have been jeopardized had an earlier arrest been made. We hold here, as we did in Brown, that the delay in making the arrest was not unjustifiable under the circumstances. In so concluding, we have considered Ross v. United States, 349 F. 2d 210 (App. D. C.), upon which appellant relies, but find it inapposite under the facts of the present case.

Appellant suggests that the trial judge unduly restricted her cross-examination of Agent Bland as to the nature, scope and extent of his police activities and points to the fact that the court sustained an objection on relevancy grounds to her inquiry of him as to “how many cases have you and the informer made that have led to arrests.” While we agree with appellant that she should have been given the broadest latitude in cross-examining the agent in order to test his powers of perception and recollection, it is evident from the record that her efforts at cross-examination were not directed to this end, but rather were intended to elicit the reasons underlying the delay in making the arrest. The trial judge undoubtedly felt that the inquiry as posed, was over-broad and, as such, irrelevant; and appellant made no effort to narrow the range of the question and pinpoint the area of appropriate interrogation. Under these circumstances, we see no prejudicial error in the court’s ruling.

That the evidence was sufficient to sustain the convictions is entirely clear. The testimony of Agent Bland and the admission by stipulation of the chemist’s analysis was sufficient, if believed —as it obviously was—to support the convictions. See Brown v. State, supra, at page 576.

We do not believe, however, that appellant could properly be sentenced as a second offender under Section 300 of Article 27 of the Maryland Code (1967 Repl. Vol.). It was stipulated at the trial that the prior offense upon which the addendum was based was a 1960 conviction for possession of narcotics paraphernalia (a hypodermic syringe, etc.) under Section 297 of Article 27 of the Maryland Code. Section 300 (a), which authorizes imposition of a greater punishment for a second offender, provides, in pertinent part, as follows:

“(a) Any person who violates the provisions of §§ 277, 291 or 295 of this subtitle with regard to any narcotic drug specified in §276 herein shall be guilty of a felony, and upon conviction shall be fined not more than one thousand dollars ($1,000) and shall be imprisoned for not less than two or more than five years. For a second offense, or if, in case of a first conviction of violation of the aforesaid sections, the offender shall previously have been convicted of any violation of the laws of the United States or of any other state, territory or district relating to narcotic drugs or marihuana, the offender shall be fined not more than two thousand dollars ($2,000) and be imprisoned not less than five or more than ten years.” (Emphasis supplied.)

Sections 277, 291 and 295 of Article 27 generally proscribe the unlawful manufacture, possession, control, sale, prescribing, administering and 'dispensing of narcotic drugs, keeping certain specified places for the purpose of using or permitting the use or sale of such drugs, and obtaining drugs by fraud, deceit or forgery. None of these Sections proscribe unlawful possession of narcotic paraphernalia, that being designated as an offense by Section 297. It is thus clear that appellant’s prior conviction in this State of possessing narcotic paraphernalia is not one of those narcotic offenses coming within the purview of Section 300(a) authorizing the imposition of an enhanced punishment for second offenders. We note, of course, that Section 300(a) purports to authorize punishment as a second offender of persons “previously * * * convicted of any violation of the laws of the United States or of any other state * * * relating to narcotic drugs or marihuana * * While we entertain considerable doubt that a conviction in another State for possessing narcotic paraphernalia would properly come within the ambit of the phrase “relating to narcotic drugs,” as used in Section 300(a), we need not here decide that question since appellant’s prior conviction for possessing narcotic paraphernalia occurred in tins State.

We, therefore, conclude that appellant’s sentence as a second offender cannot stand. The trial judge imposed a general eight-year sentence without specifying how much of that term was to be attributed to the finding of guilt under the addendum. We think it clear that five years of the total eight-year term was necessarily attributable to the finding of guilt as a second offender. See Woodfork v. State, 3 Md. App. 622. We will, therefore, remand the case for entry of a not guilty finding on the addendum to the indictment, and for the entry of a proper sentence which may not exceed three years.

Judgment of conviction affirmed; case remanded for entry of a finding of not guilty on the addendum to the indictment and for entry of a proper sentence, in accordance with this opinion.

      . By Chapter 607 of the Acts of 1904, Chapter 533 of the Acts of 1906 and Chapter 473 of the Acts of 1913, it was made unlawful for any person, including physicians and dentists under certain conditions, to sell, furnish or give away specified narcotic drugs. Those Acts declared such offenses to be misdemeanors and provided greater punishment for second and third offenders. By Chapter 59 of the Acts of 1935, the Legislature repealed these Acts and enacted a comprehensive law creating a number of crimes relating to narcotic drugs, including the offense of unlawfully possessing narcotic paraphernalia. That Act provided that any person who violated “any provision of this subtitle” was subject to punishment as a subsequent offender so that, as of that time, a conviction of possessing narcotic paraphernalia would have been a prior offense subjecting the offender to punishment as a subsequent offender under that Act. By Chapter 466 of the Acts of 1951, increased penalties were provided for persons violating “any provision of this subtitle.” Chapter 773 of the Acts of 1963 repealed and re-enacted, with amendments, the precursor of what is now Section 300, the primary purpose of this Act being to designate certain narcotic offenses as felonies. Chapter 55 of the Acts of 1964 repealed then Section 300 and enacted in its place a new penalty section—the present Section 300—providing punishment for narcotic offenses designated therein as felonies, including a greater punishment for persons previously convicted of committing such designated offenses, and classifying all other narcotic offenses as misdemeanors and providing a penalty therefor, excluding therefrom, however, any greater penalty for subsequent offenders. The fact that a prior violation of the narcotics laws was, when committed, a misdemeanor does not automatically exclude that prior conviction as one of those offenses for which a person can be subjected to greater punishment as a second offender under Section 300(a), so long as the substance of such prior conviction, when committed falls within the present coverage of Section 300(a). See Murray v. State, 236 Md. 375; Wells v. State, 236 Md. 381; Gans v. Warden, 233 Md. 626. Nothing in Torres v. Warden, 227 Md. 649, decided in 1961, compels a contrary result.


text:
    CLEO C. WOODFORK v. STATE OF MARYLAND
    [No. 208,
    September Term, 1967.]

      Decided April 10, 1968.

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

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

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F. Moylan, Jr., State’s Attorney for Baltimore City, and James P. Garrity, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

On July 17, 1967 appellant pleaded guilty generally in the Criminal Court of Baltimore to a three-count indictment charging violation of the narcotics laws and of being a second offender under an addendum to the indictment. Prior to imposition of sentence, counsel for the appellant drew the court’s attention to the provisions of Section 306B of Article 27 of the Maryland Code (1967 Repl. Vol.), which authorized the court to suspend sentence imposed on a narcotics violator, including a second offender, and refer him to a hospital or other appropriate institution for the treatment of narcotic addicts. The court, after reviewing appellant’s prior criminal record, imposed a sentence of two years on each count of the indictment and a two-year term “as to the addendum,” all sentences to run concurrently. Immediately after imposing this sentence, the court stated that its attention had been called “to the fact that under the second offender statute, I may not have imposed the proper sentence [since] I think the second offender calls for a heavier sentence than what I have imposed.” Later that afternoon a subsequent proceeding was held at which time the court stated that the statute governing the incarceration of second offenders under the narcotics laws required that a sentence of not less than five years be imposed. A “corrected” sentence of five years “as to the addendum” was then imposed, to run concurrently with the other sentences. Appellant objected to the corrected sentence and contends on this appeal that the court’s action in so revising the sentence violated Maryland Rule 764b which prohibits the court from increasing the length of any sentence previously imposed.

Section 300 of Article 27 of the Maryland Code (1967 Repl. Vol.), relating to the penalties to be imposed for unlawful possession and control of narcotics, provides in part that “For a second offense * * * the offender shall be fined not more than two thousand dollars ($2000) and be imprisoned not less than five or more than ten years.” The thrust of appellant’s argument is that the court was empowered to impose a sentence lesser than the statutory minimum of five years since Section 306B of Article 27 authorizes it to suspend the sentence imposed on narcotics violators, including second offenders, and send them to a hospital for treatment. Appellant reasons that as the court has this authority, it necessarily is empowered to impose a term of imprisonment less than the minimum set forth in Section 300.

As a general rule, where the punishment for a criminal offense is fixed by statute, that imposed by the court must conform thereto. 24B C.J.S. Criminal Law, Section 1982, and cases there cited. In Kirschgessner v. State, 174 Md. 195, 198, it was held to be within the province of the Legislature “to fix the penalty for the commission of crimes and offenses, and thus limit the power of the courts to impose penalties, and, prior to the year 1906, courts were restrained by the limits, high and low, imposed by statute.” The 1906 statute to which the Kirschgessner court had reference (Chapter 536 of the Acts of 1906) is now codified as Section 643 of Article 27, and reads as follows:

“In all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the judge of the Criminal Court of Baltimore and the several judges of the circuit courts of the counties may, in lieu of the minimum penalty so prescribed, impose a less penalty of the same character; provided, however, that nothing herein contained shall be construed as affecting any maximum penalty fixed by law, or the punishment for any crime where the law provides one and only one penalty.”

In Robertson v. Warden, 212 Md. 646, it was held that Section 643 “would only be controlling in the case of laws existing at the time of its adoption [in 1906], although it might perhaps be given effect as to subsequently enacted laws by construction.” To the same effect, see State v. Fisher, 204 Md. 307. As the narcotics laws which appellant was convicted of violating were first enacted in 1935 (see Rosemary Jones v. State, 3 Md. App. 616), the provisions of Section 643 would not be applicable to such offenses unless we could, by construction of the pertinent statutes, conclude that the Legislature intended the provisions of that Section to be applicable to sentencing under Section 300.

We are of the opinion, however, that the Legislature intended that the statutory minimum of five years imprisonment for a second offender under Section 300 constitute a mandatory sentence which the court could suspend under Section 306B, where it deemed treatment, rather than incarceration, to be the appropriate disposition. The preamble to Section 306B (see Chapter 376 of the Acts of 1966) contains a number of recitals wherein the Legislature purports to recognize that drug addiction may be a sickness and that criminal sentences for addicts may interfere with their proper treatment and rehabilitation. The Legislature did not, however, repeal Section 300 or in any way indicate an intention to abolish incarceration in a penal institution as a means of dealing with violators of the narcotics laws. By Section 306B, the Legislature provided statutory machinery whereby the sentencing judge, in dealing with second offenders, was authorized, after imposing sentence under Section 300, to suspend it and direct that the offender be referred for treatment at an appropriate hospital or other institution.

Maryland Rule 764a authorizes the court to correct an illegal sentence at any time. In changing its initial imposition of a two-year sentence under the addendum to the five-year mandatory minimum required by Section 300, we think the court was, in effect, correcting an illegal sentence and was not, as contended by the appellant, unlawfully increasing, in contravention of Maryland Rule 764b, the length of a sentence previously imposed. As previously indicated, the trial judge, prior to sentencing the appellant, took into consideration the provisions of Section 306B, but apparently concluded that society’s interest would best be served by incarceration under Section 300, rather than treatment under Section 306B.

      . Possession of narcotics (count 1); control of narcotics (count 2); possession of narcotic paraphernalia (count 3).


author: Anderson, J.,

text:
    BACHELLER, et al. v. STATE OF MARYLAND
    [No. 52,
    September Term, 1967.]

      Decided April 15, 1968.

    The cause was argued before Anderson, Morton, Orth, and Thompson, JJ., and Childs, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.

      Anthony G. Amsterdam, with whom was Fred B. Weisgal on the brief, for appellants.

      Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Alan B. Lipson, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On April 19, 1966, the appellants were tried in the Municipal Court of Baltimore and convicted of disorderly conduct in violation of Article 27, section 123, Maryland Code (1967 Repl. Vol.). Appellants were each sentenced to a term of sixty days in the Baltimore City Jail and fined fifty dollars plus costs. An appeal was duly noted and a trial de novo granted. Trial was held in the Criminal Court of Baltimore on June 8, 1966, before a jury, Judge J. Gilbert Prendergast presiding. Appellants were found guilty and each was sentenced to sixty days in the Baltimore City Jail and fined fifty dollars plus costs.

Appellants raise seven allegations of error on appeal:

1. That Article 27, section 123 is unconstitutional on its face under the First and Fourteenth Amendments to the Constitution of the United States.
2. That Article 27, section 123 as applied was an unconstituitonal abridgement of the appellants’ right of free speech, expression, petition and assembly, guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.
3. That appellants’ convictions violate the First and Fourteenth Amendments because the trial court refused to instruct the jury that appellants had a Constitutional right to express their political beliefs and that the jury could not convict on the basis of a disagreement with appellants’ expressed views.
4. That the denomination of appellants’ cause before the jury as an “appeal” deprived them of their statutory right to a trial de novo in the Criminal Court of Baltimore City, and their Federal Constitutional right to a fair trial.
5. That the refusal of the trial court to question jurors on the voir dire examination about relatives serving in Vietnam deprived appellants of their statutory right to challenge jurors for cause.
6. That the trial court committed reversible error in reopening the case to allow the testimony, highly prejudicial to the appellants, of a witness for the prosecution who had been taught and prompted by the content of the previous testimony.
7. That the trial court committed reversible error by failing to give a promised instruction that the Jury should ex-elude from consideration the evidence of events inside the recruiting station.

The evidence adduced below established that on Monday, March 28, 1966, at approximately 3 :00 p.m., a group comprised of 30 to 40 demonstrators, evidencing dissatisfaction with the United States policy in the Vietnam conflict, congregated outside the United States Recruiting Station at 3328 Greenmount Avenue, Baltimore, Maryland. Subsequently, three of the appellants entered the Recruiting Station and demanded, through their spokesman, Harding, that their protest posters be displayed inside. This request was rejected and the appellants refused to leave until there was compliance with their demand. Thereafter, the three additional appellants also entered and joined the original three.

Mr. Frank Udoff, United States Marshal for the District of Maryland, approached the appellants shortly before the usual 5 :00 p.m. closing time, identified himself, and requested them to leave peacefully. This request was rejected and it became necessary for Mr. Udoff to deputize several Baltimore City policemen to assist in the physical removal of the appellants to the sidewalk outside. By stipulation, there was no dispute as to the authority of the Marshal to so remove the appellants.

Some appellants were carried outside and deposited in a prone position upon the sidewalk while others were escorted out. Two appellants attempted to crawl back to the doorway and thus bar its closing.

Appellants then assumed either a semi-circular sitting or prone position, fully blocking the ten to twelve foot sidewalk for picketers and pedestrians alike. This performance attracted a gathering of between 80 and 100 onlookers. Some of the gathering became hostile and hurled statements at the demonstrators inclusive of “let’s get them,” “we’ll take care of them.” As the crowd increased its discontent, the police found it necessary to hold the crowd back and to intercede between the two elements. As the situation grew more tense and the anger grew, additional sentiments were hurled from the crowd, such as, “Bomb Hanoi,” “let’s get them, I’ll bust him in the mouth.” The resultant turmoil was such that the police found it necessary to fend off the crowd’s attempt to vent its displeasure on the demonstrators and to ward off the trampling of the appellants. The size of the crowd continued to increase.

At this juncture, the appellants were ordered by police to get up, but they declined to abide by the order. As the possibility of violence increased the order was repeated three times, but appellants continued to refuse to respect the order. Subsequently, the officers arrested the appellants and charged them with disorderly conduct directly arising out of the obstruction of the sidewalk which consequentially was causing a public disturbance and the specific refusal to comply with three lawful commands of the police officers.

I and II

The thrust of the appellants’ first and second contentions is that Article 27, section 123, Maryland Code Annotated (1967 Repl. Vol.), fails to afford sufficient fair warning that the conduct herein engaged in was subject to criminal sanctions and is therefore unconstitutionally vague and indefinite; and that, furthermore, the application of the statute infringed upon the rights protected by the First and Fourteenth Amendments.

All statutes come before this Court cloaked in a presumption of constitutionality. Therefore, any challenge levied at the constitutionality of a duly enacted statute must clearly establish that said statute plainly contravenes the Federal or State Constitutions, otherwise the presumption remains unrebutted and the statute will not be declared unconstitutional. See Woodell v. State, 2 Md. App. 433, 437, 234 A. 2d 890 (1967). Clearly, a statute is within the guidelines of the constitutional safeguards only if persons of ordinary intelligence would be able to know when their conduct would place them in violation of the specified statutory prohibition. Connally v. General Construction Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926); Lanzetta v. New Jersey, 306 U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939). However, while compelling strict compliance to such guidelines, the Federal Constitution refrains from the imposition of impossible standards of specificity in the construction of penal statutes. The primary requirement is that a statute convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” United States v. Petrillo, 332 U. S. 1, 8, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947); United States v. Woodard, 376 F. 2d 136, 140 (1967).

The formulation of statutory language is, at best, an inexact exercise vulnerable to varying degrees of doubt and ambiguity. Therefore, the enunciation of the meaning and ambit of a specific statute by judicial construction strives to ascertain and define the legislative intent and purpose, and upon making of a determination of the legislative meaning the efficacy of the statute is more clearly and precisely promulgated.

In making our determination of the instant statute’s constitutional posture, we remain attentive to the observation of Mr. Justice Holmes in Roschen v. Ward, 279 U. S. 337, 49 S. Ct. 366, 73 L. Ed. 722 (1929), when he stated at page 339:

“We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.”

Article 27, section 123, Maryland Code (1967 Repl. Vol.), states in pertinent part:

“Every person who shall be found drunk, or acting in a disorderly manner to the disturbance of the public peace, upon any public street or highway, in any city, town or county in this State * * * shall be deemed guilty of a misdemeanor; and upon conviction thereof, shall be subject to a fine of not more than fifty dollars, or be confined in jail for a period of not more than sixty days or be both fined and imprisoned in the discretion of the court * *

In rejecting a prior contention that the statute was unconstitutional on its face, the Court of Appeals in Drews v. State, 224 Md. 186, stated at page 192, through Judge Hammond (presently Chief Judge) that:

“The gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite a number of people gathered in the same area. * * * Also, it has been held that failure to obey a policeman’s command to move on when not to do so may endanger the public peace, amounts to disorderly conduct.”

In Sharpe v. State, 231 Md. 401, 404, 190 A. 2d 628 (1963), while the Court of Appeals did not reach the question of whether the charge of disorderly conduct could be justified, it did observe that “[rjefusal to obey a proper order of an officer may constitute an offense justifying an arrest, particularly where there is profanity in the presence of others that may threaten a breach of the peace. Cf. Drews v. State, 224 Md. 186, 192 and cases there cited. See also Lippert v. State, 139 N. Y. S. 2d 751, City of St. Petersburg v. Calbeck, 121 So. 2d 814 (Fla.); City of Saint Paul v. Morris, 104 N. W. 2d 902 (Minn.). Other cases are collected in a note, 34 A.L.R. 566.” (Emphasis added).

Then in Harris v. State, 237 Md. 299, 303, 206 A. 2d 254 (1965), the Court of Appeals stated:

“A failure to obey a reasonable and lawful request by a police officer fairly made to prevent a disturbance of the public peace constitutes disorderly conduct. Sharpe v. State, 231 Md. 401, 190 A. 2d 628; Drews v. State, 224 Md. 186, 167 A. 2d 341 (vacated on other grounds, 378 U. S. 547, 12 L. Ed. 2d 1032).”

Our review, therefore, is directed not only to the statute per se but to the judicial construction of same, as the cumulative effect constitutes the controlling constitutional posture of the statute at the time of the alleged offense. Shutlesworth v. City of Birmingham, 382 U. S. 87, 92, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965); Ashton v. Kentucky, 384 U. S. 195, 198, 86 S. Ct. 1407, 16 L. Ed. 2d 469 (1966).

It is of considerable significance that the prior constitutional challenge levied upon this specific statute and section in Drews v. State, supra, 224 Md. 186, reversed and remanded on other grounds in Drews v. Maryland, 378 U. S. 547 (1964) was affirmed on remand in Drews v. State, 236 Md. 349, 204 A. 2d 64 (1964) and the appeal was dismissed and certiorari denied in Drews v. Maryland, 381 U. S. 421 (1965). This in conjunction with the fact that similar disorderly conduct statutes have been held constitutional by the United States Supreme Court in Feiner v. New York, 340 U. S. 315, 71 S. Ct. 303. 95 L. Ed. 267 (1951), and Chaplinsky v. New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1034 (1942) leads us to conclude that statutes of this kind are not repugnant to the Federal Constitution.

In Feiner v. New York, 340 U. S. 315, 318, 71 S. Ct. 303, 95 L. Ed. 267 (1951), the Supreme Court upheld the conviction of Feiner for violation of § 722 of the Penal Law of New York.

In that case, Feiner’s activity was observed by the police without interference until, observing the changing tenor of the crowd, both for and against his expressed views, the police on three occasions, requested him to cease and desist. He refused to do so and the police finally “stepped in to prevent it from resulting in a fight.”

In affirming, the Court stated at page 320:

“This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Schneider v. State, 308 U. S. 147, 160 (1939); Kovacs v. Cooper, 336 U. S. 77, 82 (1949).”

Applying the common sense doctrine, we find that the instant statute in conjunction with the previous judicial constructions cited was sufficiently definite to inform a man of ordinary intelligence of the nature of activity proscribed. Faced with the present facts and circumstances, it would unduly stretch our credulity to accept the urging that the appellants, after obstructing the sidewalk by sitting and lying down thereon, and refusing to comply with the thrice repeated request by the police, were ignorant of the fact that they were engaged in disorderly conduct of such a nature as legally proscribed.

While it is clear that the protections afforded by the First and Fourteenth Amendments encompass a spectrum of application with regard to freedom of speech that includes the less pure non verbal freedom of speech, Stromberg v. California, 283 U. S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931); Carlson v. California, 310 U. S. 106, 60 S. Ct. 747, 84 L. Ed. 1104 (1940); Brown v. Louisiana, 383 U. S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966), freedom of even the pure forms of speech are by no means absolute. As Mr. Justice Holmes stated in Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919):

“[T]he character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U. S. 194, 205, 206. The most stringent protection of free speech would not protect man in falsely shouting fire in a theatre and causing a panic.”

The controlling principle was enunciated as:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger * *

In the subsequent case of Frohwerk v. United States, 249 U. S. 204, 206, 39 S. Ct. 249, 63 L. Ed. 561 (1919), Mr. Justice Holmes extended the aforenoted statement in Schenck, supra, stating “that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U. S. 275, 281.”

Here, however, we are not confronted with such a pure form of expression as the verbalized or printed word, but by a particular form of conduct and as such the constitutional protection afforded is more limited. We are unaware of any tenet of law which requires the State law enforcement facilities to stand impotently aside, while disruption and strife reign in the streets in the guise of protected activity, nor is the principle of standing responsible for the product of the force or chain of events that one puts into effect alien to our concept of justice. As Mr. Justice Goldberg stated in Cox v. Louisiana, 379 U. S. 536, 555, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965):

“We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. * * * We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, (336 U. S. 490) at 502, that ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written or printed.’ ”

Our interpretation of the cases directed at the subject of free speech evidences to our satisfaction that it is the substance rather than the form of communication to which the protection attaches and such regulation of the form is constitutional where same arises from a legitimate State interest and not for the sole purpose of censoring the underlying thought or idea. See Brown v. Louisiana, supra, (383 U. S. 131); Cox v. Louisiana, supra, (379 U. S. 536); Carlson v. California, supra, (310 U. S. 106); Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); Stromberg v. California, supra, (283 U. S. 359).

We find the instant statute to be a proper exercise of the police powers of this State directed toward the maintenance of public order.

Ill

Appellants’ third contention is without merit. The evidence before the trial court clearly established that the arrests and charges resulted from appellants’ refusal to cease their obstruction of the sidewalk and resultant public disturbance and because they had refused to comply with three lawful commands of a police officer. We further note that the standing demonstrators were not arrested. Since the evidence adduced below rejected any substance to the allegation that the arrests were predicated upon suppression of political views, the instructions were properly rejected.

IV

Appellants’ fourth contention is without merit. Appellants contend that the term “appeals” with respect to their trials, improperly informed the jury that they had been convicted in the Municipal Court of Baltimore City.

The record before us clearly establishes that the trial court excluded all papers reflecting the guilty finding below, and replaced them with papers designating them as “Appeals.” Based upon the record below, this allegation constitutes a bald allegation devoid of any evidentiary showing of such prejudice.

V

Appellants’ fifth contention also fails. The trial court inquired sufficiently into the areas of general bias or prejudice of the prospective jurors toward the appellants. While rejecting the specific request to inquire on voir dire as to whether or not the jurors had relatives serving in Vietnam, the trial court carefully inquired into whether any preconceived opinions or judgments existed on the jurors’ part.

We find that having relatives serving in the Armed Forces an insufficient showing of alleged prejudice to constitute a challenge for cause.

VI

Appellants’ sixth contention is devoid of merit. The matter of allowing the State to reopen its case by presenting another ■witness is clearly within the discretion of the trial court. Tinglen and Wright v. State, 1 Md. App. 389, 392, 230 A. 2d 375 (1967). Concerning the apparent violation of the sequestration order, it is clear that even where such a violation exists, this would not of itself require a reversal. “It is within the discretion of the trial judge to determine whether to admit the testimony of the witness where there has been a violation of the ex-elusion order.” Cunningham v. State, 247 Md. 404, 417, 231 A. 2d 501 (1967); Mayson v. State, 238 Md. 283 290, 208 A. 2d 599 (1965). We find no abuse of the trial court’s discretion.

VII

Appellants’ final contention is without merit. We find the events which led to the ejection from the Recruiting Station, resulting in the appellants’ presence on the sidewalk, constituted a proper and relevant background to the crime charged.

Judgment affirmed.

      . Section 722:
      “Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; 3. Congregates with others on a public street and refuses to move on when ordered by the police; * *


author: Per Curiam.

text:
    THOMAS ELI LONG v. STATE OF MARYLAND
    [No. 90,
    September Term, 1967.]

      Decided April 15, 1968.

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

      Norman N. Yankellow for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Allen S. Handen, State’s Attorney for Calvert County, on the brief, for appellee.
   Per Curiam.

Appellant, Thomas Eli Long, was convicted in the Circuit Court for Calvert County by a jury, Judge Perry G. Bowen presiding, of murder in the second degree, and carrying a deadly weapon openly with intent to injure, and was sentenced to serve terms of eighteen years and two years, respectively, in the Maryland Penitentiary, sentences to run concurrently. This is an appeal from his conviction of murder in the second degree.

Appellant raises two contentions on appeal: (1) that the court erred in admitting into evidence the victim’s incriminating statement as part of the res gestae; and (2) that the court erred in instructing the jury that the defendant had the burden of proving by a preponderance of evidence that he acted in defense of himself and his mother.

We shall only state those facts which are necessary for our consideration of the issues presented.

On May 16, 1966, at approximately 10:30 p.m., James Clifton Long was shot at close range by a twelve gauge shotgun during an argument with his wife on the porch of his home in Calvert County. He subsequently died as a result of the shooting. The appellant, Thomas Eli Long, admitted the shooting, but testified that he shot his father in defense of himself and his mother.

Corporal Yinger and Trooper Baker of the Maryland State Police arrived at the Long home at approximately 12:30 a.m. and proceeded to administer first aid. Trooper Cawthorne, who arrived a few minutes later, testified that upon arrival first aid was being administered to Mr. Long who was lying on a bed in the bedroom. He asked Mr. Long what happened. In answer to the question, Mr. Long stated that “he had been in an argument with his son and his son shot him.” Due to loss of blood and shock and because of the extent of his injuries, he was not questioned further. An ambulance was summoned and he was removed to the hospital.

There he was examined by Dr. George Weems who testified, without objection, that the victim Long stated to him that he was shot by his son a short distance from the edge of the porch. After he was shot he fell and then his son and his wife assaulted him. He passed out and sometime after that they left. He was out for a long time and when he did come to, he finally was able to crawl into the house. After describing the serious nature of his injuries, Dr. Weems testified that he had been transported to the University Hospital in Baltimore where he

Appellant urges as his first contention that the trial court erred in admitting in evidence over objection the statement made by the deceased to Trooper Cawthorne “that he had been in an argument with his son and his son shot him” as part of the res gestae.

“The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness of time, but by casual [causal] connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part of it.” Wilson v. State, 181 Md. 1, 3-4, 26 A. 2d 770 (1942). See also Stevens v. State, 232 Md. 33, 40, 192 A. 2d 73 (1963), where the facts were remarkably similar to the instant case even as to time. There the Court found that the deceased’s statement made more than two hours after she was beaten was “so closely connected with the main fact as to constitute a part of it,” and thus was part of the res gestae.

Judge Morton, speaking for this Court, in Reckard v. State, 2 Md. App. 312, 316, 234 A. 2d 630, 632 (1967), explained res gestae as follows: “As otherwise expressed, whether a declaration is a part of the res gestae depends upon whether the declaration represented the facts talking through the party or whether the party was talking about the facts, since res gestae comprehends a situation which presents an occurrence sufficient to produce a spontaneous and instinctive reaction under such circumstances as to show a lack of forethought or deliberate design on the part of the declarant.”

Here the statement made by the deceased, some two hours after the shooting, was made under such circumstances that the awful influence of the occurrence produced a spontaneous and instinctive reaction on the part of the declarant. When the State Troopers arrived the victim was found lying upon a bed in the bedroom, bleeding profusely from the mortal wounds he had received from the shotgun blast. He was unattended and in a state of shock, in great pain, and had lost consciousness for a period prior to their arrival. We find that the statement given under such conditions was properly received as part of the res gestae.

Assuming, however, without deciding, that the statement was improperly admitted, the admission of the statement failed to constitute prejudicial error to appellant. Appellant does not deny the shooting but claims he shot in self defense. Moreover, the same testimony was admitted in evidence without objection through Dr. Weems, the examining physician, who related to the court and jury a history given him by the deceased upon his arrival at the hospital.

II

Appellant’s second contention is that the court erred in its instructions to the jury as to the law of self defense. However, a careful review of the transcript reveals that no objection was made or exception taken to the court’s instructions by appellant at the conclusion of the charge, and, accordingly, the issue is not properly before this Court. Maryland Rules 756 f and g and 1085; Culver v. State, 1 Md. App. 406, 415-416, 230 A. 2d 361 (1967); O'Connor v. State, 1 Md. App. 627, 630, 232 A. 2d 551 (1967); Cox v. State, 3 Md. App. 136, 141, 238 A. 2d 157 (1968); Hicks v. State, 3 Md. App. 225, 231, 238 A. 2d 577 (1968).

Moreover, we find that the portion of the court’s instructions-relating to self-defense is an accurate statement of the law of Maryland. The burden of proving by a preponderance of the evidence that he acted in self-defense is on the defendant. Davis v. State, 237 Md. 97, 103, 205 A. 2d 254 (1964); Perry v. State, 234 Md. 48, 52, 197 A. 2d 833 (1964); Bradford v. State, 234 Md. 505, 514, 200 A. 2d 150 (1964); Gunther v. State, 228 Md. 404, 411, 179 A. 2d 880 (1962).

Judgment affirmed.


text:
    JAY CHAMBERS v. STATE OF MARYLAND
    [No. 94,
    September Term, 1967.]

      Decided April 15, 1968.

      The cause was argued before Murphy, C. J., and Anderson, Morton, Ortii, and Thompson, Jj.

      Frank M. Kratovil for appellant.

      Edward S. Digges, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and James C. Kenhil, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

Appellant, Jay Chambers, was found guilty of criminal contempt by a jury, Chief Judge J. Dudley Digges presiding, in the Circuit Court for Prince George’s County, and was sentenced by the court to serve one year in the Maryland House of Correction, and appealed. He had been adjudged to be in contempt of court for failing to obey a court order to take a blood test in connection with a paternity proceeding.

In its brief and oral argument before the court the State-moves that this appeal be dismissed on the grounds that this Court lacks appellate jurisdiction in contempt cases. Since the granting of the motion will be dispositive of the appeal, we will consider the motion to dismiss.

The lower court, the State’s attorney and the appellant all’ considered this case to be in the nature of a criminal contempt. In support of its motion the State argues that, assuming this proceeding is of a criminal nature, it is not such a “conviction” as referred to in Maryland Code (1967 Cum. Supp.), Article-5, sec. 12 (Criminal Appeals) or non-capital “criminal case”' as stated in Maryland Code (1966 Repl. Vol.), Article 26, sec. 130, over which this Court has appellate jurisdiction.

Under the common law there was no appeal from the judgment or order of the court in contempt proceedings regardless of whether the contempt was criminal or civil in its nature, unless specially authorized by statute. This was the conclusion reached by the Court of Appeals of Maryland in Kelly v. Montebello Park Co., 141 Md. 194, 118 A. 600 (1922). There ■the Court in its opinion pointed out that since there is no statute in this State providing for appeals in contempt cases, the "common law would apply, and “the order appealed from is not subject to review by this Court.” The Court of Appeals reached -a similar conclusion in the later case of Ex Parte Sturm, 152 Md. 114, 124-126, 136 A. 312 (1927), where the Court found 'that a judgment imposing a fine for criminal contempt in violating an order within the legitimate scope of the Court’s authority was not appealable, since there was no statute in force expressly providing for appeals in such cases.

Following the decision in Ex Parte Sturm, supra, the General Assembly enacted express legislation authorizing appeals to be taken in all contempt proceedings. Laws of Maryland 1927, Ch. 357.

The statutory authorization for appeals in contempt cases is now set forth in Sections 18 and 7 (e) of Article 5 of the Maryland Code (1957) and (Cum. Supp. 1967). Section 18 of Ar'ticle 5 (Code 1957) titled “Appeals in Contempt Cases” provides as follows:

“Any person may appeal to the Court of Appeals from any order or judgment passed to preserve the power or to vindicate the dignity of the court and adjudging him in contempt of court. Upon such appeal, in cases of both direct and constructive contempt, the Court of Appeals shall consider and pass upon the law and the facts and shall make such order as to it may deem proper, including the reversal or modification of the order from which the appeal was taken.”

Section 7(e) of Article 5 (1967 Cum. Supp.) titled “Appeals from Certain Interlocutory Orders” provides:

“Any party may appeal to the Court of Appeals from any of the following interlocutory orders entered by or actions of a court of equity* * *
“(e) An order, remedial in its nature, adjudging in ■contempt of court any party to a cause or any person not a party thereto, except orders entered requiring the payment of alimony.”

Section 12 of Article 5 (Code 1957), titled “Appeals in Criminal Cases,” was amended in 1966 (Ch. 12, sec. 1, Raws of Maryland 1966), to transfer jurisdiction in all non-capital criminal cases from the Court of Appeals to the Court of Special Appeals. However, Sections 7(e) and 18 of Article 5 (Code 1957), authorizing appeals in contempt cases were not so amended, and appeals from orders and judgments for contempt remain exclusively within the jurisdiction of the Court of Appeals. Had the General Assembly intended otherwise, it would have amended Sections 7(e) and 18 of Article 5 (Code 1957) in the same manner that it amended Section 12 of Article 5, to transfer jurisdiction from the Court of Appeals to the Court of Special Appeals. Not having done so, we can only conclude that the General Assembly intended jurisdiction in criminal contempt proceedings to remain in the Court of Appeals.

Since appeals in criminal contempt cases were not authorized under the general statutory provisions for criminal appeals (See Ex Parte Sturm, supra, and Montebello Park Co., supra), the amendment of Article 5, Sec. 12 (Code 1957) passed in 1966 (Cum. Supp. 1967) would not vest this Court with appellate jurisdiction over such cases.

As we find that we have no appellate jurisdiction in criminal contempt proceedings, the appeal must be dismissed.

However, an examination of the record discloses that appellant noted his appeal to the Maryland Court of Appeals from' the judgment in this case, but, through a clerical error, the record was transferred from the Circuit Court for Prince George’s County, Maryland to the Court of Special Appeals of Maryland and docketed in that Court.

The appeal must be dismissed for lack of jurisdiction, without prejudice to any right he may have to further perfect his appeal to the Court of Appeals of Maryland.

Appeal dismissed.


text:
    GEORGE LEONARD McCARGO alias JAMES McCLAIN v. STATE OF MARYLAND
    [No. 121,
    September Term, 1967.]

      Decided April 15, 1968.

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

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

      William B. Whiteford, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, and James A. Wise, State’s Attorney for Caroline County, on the brief, for appellee.
   Per Curiam.

This is an appeal from a general verdict of guilty by the court in the Circuit Court for Caroline County under an indictment charging storehouse breaking with intent to commit a felony (1st count) and grand larceny (2nd count) and consecutive sentences of imprisonment for a term of 5 years on the first count and 10 years on the second count.

The record indicates that the appellant was arrested on July 27, 1965 on a charge of larceny of a pistol. While awaiting trial he escaped from the county jail on August 30, 1965, was apprehended about 36 hours later, was tried and convicted for the escape in October 1965 and sentenced to imprisonment for a term of 18 months. The charge of larceny of a pistol was dismissed. On November 1, 1965, during his incarceration on the escape conviction, he was indicted for the offenses which are the subject of this appeal. He was brought before the Circuit Court for Caroline County on November 8, 1965, informed of the nature of the charges against him, of the maximum sentence which could be imposed upon conviction and of his right to counsel. On the same day counsel was appointed to represent him. He served about 13 months on the escape sentence but was still confined on a detainer. He was admitted to bail on the offenses of storehouse breaking and grand larceny then pending on October 13, 1966 and tried and convicted on those offenses on January 30,1967.

He presents three questions on appeal:

I. Was he denied a speedy trial ?
II. Was he afforded effective assistance of counsel ?
III. Was the evidence sufficient to sustain the convictions?

I

On November 7, 1966 the appearance of counsel appointed to represent the appellant was stricken. He retained private counsel whose appearance was entered on that date. On January 11, 1967 a motion to dismiss the indictment was filed on the ground that a speedy trial had been denied him. The motion was heard on January 24 and 25, 1967 and denied. At the hearing on the motion to dismiss the appellant testified that he had importuned his court appointed counsel to seek a trial. Counsel testified that, in his opinion, trial while the appellant was incarcerated on the escape conviction would be detrimental and that he would not press for trial until he thought it would be to the appellant’s advantage for trial to be had. It “was purely a matter of legal tactics” and counsel’s “own best judgment or decision,” in the appellant’s best interest. When the appellant was released from the sentence for escape, counsel was in the hospital, which fact was known to the appellant. AVhen the appellant was released on bond, counsel had no further communication from him. The appellant claimed he was prejudiced because his wife died on July 4, 1966 and she would have testified that he was away from home from 2 July to 7 July and had telephoned her from Baltimore. The lower court found no actual prejudice. “Obviously all his wife could have testified to under any circumstances was that he was not home from the 2nd to the 7th of July (the crime was alleged to have been committed on 6 July), and where he was she had no personal knowledge except he called her on the telephone and said he was talking from Baltimore City * * * She could not have possibly said whether he was in Caroline County on the 6th of July or whether he wasn’t. She wasn’t with him and didn’t know where he was. AVe don’t believe she could have been used to any effect as an alibi witness.” The lower court further found that no proper demand had been made for trial until January 11, 1967 when the motion to dismiss the indictment was filed and that the delay occasioned after retained counsel entered his appearance on November 7, 1966 was due “to pleadings filed by the accused through his counsel.” The lower court found that the right to a speedy trial had not been denied. We agree and find no error in the denial of the motion to dismiss the indictments. In Fabian v. State, 3 Md. App. 270, we noted that a defendant may waive the right to a speedy trial by failing to demand it, or, having demanded it, he may waive it by his conduct thereafter. We held that when an accused does not make a demand for a speedy trial, he must show that he has suffered actual prejudice caused by the undue delaying tactics of the State. Absent such a showing, the right to a speedy trial has not been denied him. The appellant had waived any right he may have had to a speedy trial until January 11, 1967 and showed no actual prejudice by the delay. He went on trial 19 days after his demand. This delay of 19 days was in no wise arbitrary, capricious, oppressive or unreasonable and did not reach constitutional proportions.

II

The question whether the appellant was afforded effective assistance of counsel is directed toward his court appointed counsel. The basis of the contention that he was not afforded effective assistance is that such counsel did not press for a speedy trial. Under the circumstances shown by the record before us we cannot conclude that the court appointed counsel was inadequate by reason of his tactics in not pressing for trial. He was an attorney with extensive experience and in his considered opinion, a trial while the appellant was incarcerated for another offense would have been against the best interest of his client. In considering the matter we are not unmindful of our holding that the appellant showed no prejudice as a result of the delay. See Charles v. State, 1 Md. App. 222.

III

The corpus delicti of both the storehouse breaking and grand larceny was proved. An owner of the appliance and furniture store in Eederalsburg, Md., designated in the indictment, testified that he was the last to leave the above store about 8:00 P.M. on July 6, 1965. He “locked it up” and the inventory at that time was intact. When he opened the store about 8:00 A.M. the next morning he found that four portable television sets, two wrist watches, five radios, two portable phonographs and petty cash of $2.57 had been taken. The total value of the missing articles was in excess of $700. He observed that one of the double doors at the rear of the store had been “removed completely” and a glass pane broken. The screws had been pried loose from the door molding and the hinges removed. He called the police. A corporal of the Maryland State Police arrived on the scene about 8:30 A.M. He testified that the point of entry was the rear door, giving access to the entire store. The door had been forced with “sort of a pry type instrument.” The front of the building contained a booth that was “partitioned off” and used as an office. “It has a rail and above the rail there’s a partition of glass possibly eighteen inches high. Immediately adjacent to this office was a display case, a metal and glass display case, and in this case were numerous watches, electric shavers and small clocks. This case had a plastic strip across the top which was used more or less as an advertisement. The plastic strip had been ripped loose from the top of the case and it was apparent that several articles had been taken from the case by the vacancies created in the display shelf. Also situated to the south side of this office section was a large display case which was also made of metal and glass. The front of it was composed of two sliding glass doors, one overlapping the other. This display case was used for radios, small portable transistors, record players and items of that nature * * * The door to the case was open and it was obvious by several vacancies within this cabinet that something had been removed from the display shelf inside of the cabinet.” The officer processed the cabinets and the rear door of the building for latent fingerprints and “removed twenty-three lifts.” Three lifts were from the rear door, on its side near the door knob. Others were from the glass doors to the “radio cabinet” and from the “glass clock cabinet.” Another officer, qualified as an expert in fingerprint identification, testified that he determined that three of the latent prints, one found on “the glass clock cabinet, inside panel” and two found on “the glass doors to radio cabinet, inside left” were fingerprints of the appellant. The cards containing the latent prints were admitted in evidence. The appellant testified that he went to Baltimore on July 2, 1965, visiting his sister and parents. He did not return to his home in Hurlock, Md. until the night of July 7, 1965. Neither his sister nor his parents testified. While in Baltimore he purchased an automobile on July 7th at a total price of $305, giving the dealer first $10 and returning later that day and giving him the balance of the down payment in the amount of $85. He also paid an uninsured motorist fee. He said he had the money all the time. On cross-examination he was asked directly to explain how his fingerprints were left in the store and could offer no explanation. He had been convicted previously of burglary and larceny, which evidence could be properly considered by the trial court with respect to the appellant’s credibility.

In Lawless v. State, 3 Md. App. 652, we noted the rule stated in McNeil v. State, 227 Md. 298, 300, that “fingerprint evidence 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”. After reviewing cases in this State and in other jurisdictions we concluded 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:

“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.”

The function of this Court in a non-jury case is not to determine whether it would have come to a different conclusion but rather whether the evidence was legally sufficient to warrant a finding of the trial judge that the defendant was guilty beyond a reasonable doubt, Bury v. State, 2 Md. App. 674, giving due regard to the opportunity of the lower court to judge the credibility of witnesses, Brooks v. State, 2 Md. App. 291. In the instant case the fingerprints of the appellant were impressed on two cabinets on the premises. From this evidence the trial court could properly find that the appellant had been at the scene of the crime. The circumstances that the building was entered by a breaking of a rear door, giving access to that part of the building from which the articles were stolen, that the breaking and the larceny occurred within the same period of time, that the appellant’s prints were located on the inside of glass panels in the cabinets, that articles were stolen from those cabinets and that the appellant could not explain how his prints got on the cabinets tended reasonably to exclude the hypothesis that the prints were impressed at a time other than that of the crime. We think that the evidence and rational inferences therefrom were sufficient for the trial judge to find that the appellant’s prints were impressed at the time of the commission of the crime and that he was, therefore, the criminal agent. Thus the judgments of the trial court on the evidence were not clearly erroneous and we may not set them aside. Md. Rules, 1086.

Judgments affirmed; appellant to pay costs.

      . A Bill of Particulars was filed on November 22, 1966 and answered by the State on January 9, 1967. An earlier answer was not designated or requested.