text:
    RONNIE GORDON v. STATE OF MARYLAND
    [No. 338,
    September Term, 1967.]

      Decided September 16, 1968.

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

      Jack E. Richards for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., S tat As Attorney for Baltimore City, and James Garrity, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty of robbery with a deadly weapon at a court trial in the Criminal Court of Baltimore and sentenced to imprisonment for a term of 8 years. On appeal from the judgment the contentions raised go to the sufficiency of the evidence to sustain the conviction.

There w’as evidence adduced by the State that on 11 February 1967 about 2:30 A.M. Mrs. Lyndel Hogan, a cab driver, discharged a passenger at Fremont and Penn Streets. Three boys came up, one with a gun on the driver’s side of the cab and the other two on the opposite side. They took her purse, with her money — $53.00 — and personal belongings. Another cab approached and the boys ran. She reported the robbery on her radio. At the trial Mrs. Hogan identified the boy with the gun as Ronnie C. Gamble, Jr. but was unable to identify the other two. The cab that approached the scene of the crime was driven by Leroy Williams. He saw the three boys, one leaning inside the cab on the driver’s side and two on the opposite side. They ran as he approached. He heard the report of the robbery on his radio, followed them and saw them go into a house on Portland Street. The police arrived and he reported his observations. At the trial he identified the appellant and Gamble as two of the boys he had seen. Officer James George responded to the report of the robbery and went to the scene. After talking to Mrs. Hogan and Williams he went to 625 Portland Street, the house Williams had seen the boys enter. He and other'officers were admitted into the house and found a pistol and the contents of Mrs. Hogan’s purse strewn about the premises. No question as to the search and seizure is presented on appeal. The three boys were arrested in the house. Mary Johnson testified that the appellant, Gamble and Beckett had been in her house earlier that evening. They left and returned about 2:30 A.M. after being gone a “half hour to an hour.” Five or ten minutes after they returned the police arrived.

The corpus delicti of the crime of robbery with a deadly weapon was proved and we think that the evidence was sufficient for the lower court to find beyond a reasonable doubt that the appellant was one of the criminal agents. Williams followed the three boys he saw at the scene of the crime to 625 Portland Street and observed them enter the house. .Mary Johnson identified the appellant as one of the three boys who entered her house at that time. The fruits of the crime were found in the house. Williams identified the appellant as one of the boys he saw at the cab and that he did not identify him at a line-up goes only to the weight of his testimony. Logan v. State, 1 Md. App. 213. The weight to be given a courtroom identification is a matter for the trial court. Cox v. State, 3 Md. App. 136. We cannot say that the findings of the lower court on the evidence were clearly erroneous. Md. Rules, 1086; Hutchinson v. State, 1 Md. App. 362.

Judgment affirmed.

      . Ronnie C. Gamble, Jr. and Clarence L. Beckett were also charged with the crime. Gamble, tried with the appellant, was convicted of robbery with a deadly weapon and carrying openly a deadly weapon with intent to injure and sentenced to imprisonment for a total term of 10 years. Beckett was found to be not guilty at a separate trial.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    WILLIAM THEODORE KIDWELL v. STATE OF MARYLAND
    [No. 344A,
    September Term, 1967.]

      Decided September 16, 1968.

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

      Leonard S. Freedman for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, Jr., State’s Attorney for Anne Arundel Coimty, and T. Joseph Touhey, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

William Theodore Kidwell, together with Carson W. Sullivan, Glen A. Sullivan and William Nelson, was indicted for the murder of Raymond Howard on July 10, 1966. Kidwell was convicted of murder in the second degree by a jury. He was sentenced to a term of 15 years. On appeal he raises three contentions which will be set out and discussed hereinafter.

The story of this senseless crime begins when Joseph Stanley Franklin and James Johnson, two Negro youths, went to the Fifth Avenue Cafe to purchase some gin. Franklin went inside while Johnson waited outside talking with Clyde Wandley Toney, Nelson’s cousin. Kidwell, Nelson, and one of the Sullivans walked around the side of the building and someone said, “hit that nigger.” At this point Kidwell produced a knife and started towards Johnson who ran off down the road. Franklin testified that after he had come out of the bar Johnson wasn’t there, and he was approached by Kidwell who said, “Well, if you knew what I knew, you’d run on up the road where your buddy went to.” Franklin turned around to walk away when he was grabbed by Glen Sullivan. He tried to break away, and as he did Kidwell reached out with a knife and cut him. Franklin ran off pursued by the four accused and some other “white men,” running through the Hess gasoline station’s lot out to Route 175 where he hailed a passing car and left the area.

The deceased, Raymond Howard, who was accompanied by Walter Hall, Louise Hill, and Delores Woodson, all Negroes, had stopped at the Hess gasoline station. As they were about to leave the Hess station, they observed Franklin running across the Hess station’s lawn being chased by a number of “white men.” The deceased drove out of the station on to Route 175, pulled off to the shoulder of the road, stopped and got out of his car. His three companions remained in the car. He proceeded to the front of his car and spoke to the men who had been chasing Franklin. He was thereafter stabbed and beaten, and when he attempted to escape by running toward the Hess station, he was knocked to the grass and again assaulted. As a result of the assault, he received at least five knife wounds, the most significant being a “deep sucking chest wound” and a “deep penetrating-type w'ound in the right lateral abdomen, just below the edge of the liver” which caused “massive bleeding” and “internal bleeding.” The details of the fatal assault varied somewhat with each witness but the jury could have found that: when the car stopped and the deceased got out somebody told him “to get back into the car” to which he replied “nobody could make him.” Someone yelled “hit him” and one of the Sullivans stabbed him in the back. The deceased ran to a grass spot closer to the filling station and Kidwell knocked him down after which he was attacked by the four defendants and possibly others. Kidwell testified, denying that he had a knife, denying that he cut Franklin and denying that he assaulted Howard.

Kidwell alleges error in the refusal to grant his motion to strike the testimony of the various witnesses concerning what transpired in front of the Fifth Avenue or Johnson’s Bar. He relies on Dobbs v. State, 148 Md. 34, 129 A. 275 which gives the general rule that evidence of unconnected and unrelated crimes are inadmissible unless they show (1) knowledge (absence of mistake or accident) (2) motive (3) intent (4) common scheme or (5) identification. It would seem that the evidence in this case would come within all five of the exceptions. Kidwell’s participation in the first instance showed that his participation in the second was not the result of any mistake or accident; showed that he was motivated by racial prejudice; showed his intent to commit harm and showed a common scheme to chase away members of a.minority race from that bar and his identification as a participant in the first affair tended to show his identification as a participant in the second. See Gilchrist v. State, 2 Md. App. 635, 236 A. 2d 299, Hayes v. State, 3 Md. App. 4, 237 A. 2d 531 and Wethington v. State, 3 Md. App. 237, 238 A. 2d 581.

Kidwell’s second contention is that his motion for a mistrial should have been granted because the jury had heard evidence, stricken by the court, as to the activities of Franklin and Johnson subsequent to their encounter with Kidwell and the other defendants. The evidence consisted of the fact that they met each other at the 1630 Club, that they went back to the Fifth Avenue Cafe, where they identified Kidwell and that they procured warrants for his arrest for assault. There was no contention that the identification was in any way improper, but the motion to strike was made and granted solely on the basis of relevancy to the particular crime being tried, the murder. In the absence of a contention concerning the unfairness in the identification procedure it is apparent that this testimony was innocuous. The granting or denying of a motion for a mistrial is within the discretion of the trial court. Barton v. State, 2 Md. App. 52, 233 A. 2d 330. We see no abuse of the discretion here.

Finally, Kidwell contends that the evidence was insufficient to support his conviction for murder in the second degree and that his motion to acquit should have been granted. The aforegoing recital of facts shows the contention to be without merit. Kidwell was one of the leaders of an attack in which a man was stabbed to death. Although no one actually saw Kidwell personally do the stabbing, he was shown to be in possession of a knife, and willing to use it, immediately before the fatal assault. His actions in knocking the deceased to the ground and then attacking him would, under the facts of this case, have made him responsible for the death even if the jury believed that he did not personally use his knife. One who is actually present and who wilfully aids or abets the commission of a crime is a principal in the second degree. Agresti v. State, 2 Md. App. 278, 234 A. 2d 284.

Judgment affirmed.


text:
    WILLIAM VILLANI NELSON v. STATE OF MARYLAND
    [No. 344B,
    September Term, 1967.]

      Decided September 16, 1968.

    The cause was argued before Murphy, C.J., and And®rson, Morton, Orth, and Thompson, JJ.

      C. Osborne Duvall and Jaynes L. Wray for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, Jr., State’s Attorney for Anne Arundel County, and T. Joseph Touhey, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

William Villani Nelson, together with Carson W. Sullivan, Glen A. Sullivan and William Kidwell, was indicted for the murder of Raymond Howard on July 10, 1966. Nelson was tried separately and was convicted of murder in the second degree by a jury. He was sentenced to a term of IS years. On appeal he raises 11 contentions which will be set out and discussed hereinafter.

The story of this senseless crime begins when Joseph Stanley Franklin and James Johnson, two Negro youths, went to the Fifth Avenue Cafe tp purchase some gin. Franklin went inside while Johnson waited outside talking with Clyde Wandley Toney, Nelson’s cousin. Nelson, Kidwell and one of the Sullivans walked around the side of the building and someone said, “hit that nigger.” At this point Kidwell produced a knife and started towards Johnson who ran off down the road. Franklin testified that after he had come out of the bar Johnson wasn’t there, and he was approached by Kidwell who said, “Well, if you knew what I knew, you’d run on up the road where your buddy went to.” Franklin turned around to walk aw7ay when he was grabbed by Glen Sullivan. He tried to break away, and as he did Kidwell reached out with a knife and cut him. Franklin ran off pursued by the four accused and some other “white men,” running through the Hess gasoline station’s lot out to Route 175 where he hailed a passing car and left the area.

The deceased, Raymond Howard, who was accompanied by Walter Hall, Louise Hill, and Delores Woodson, all Negroes, had stopped at the Hess gasoline station. As they were about to leave the Hess station, they observed Franklin running across the Hess station’s lawn being chased by a number of “white men.” The deceased drove out of the station on to Route 175, pulled off to the shoulder of the road, stopped and got out of his car. His three companions remained in the car. He proceeded to the front of his car and spoke to the men who had been chasing Franklin. He was thereafter stabbed and beaten, and when he attempted to escape by running toward the Hess station, he was knocked to the grass and again assaulted. As a result of the assault, he received at least five knife wounds, the most significant being a “deep sucking chest wound” and a “deep penetrating-type wound in the right lateral abdomen, just below the edge of the liver” which caused “massive bleeding” and “internal bleeding.” The details of the fatal assault varied somewhat with each witness but the jury could have found that: when the car stopped and the deceased got out somebody told him “to get back into the car” to which he replied “nobody could make him.” Someone yelled “hit him” and one of the Sullivans stabbed him in the back. The deceased ran to a grass spot closer to the filling station and Kidwell knocked him down after which he was attacked by the four defendants and possibly others; after he was down Nelson hit him twice with his fist and kicked him once. Nelson testified, claiming self-defense, and stated that he took a blackjack away from the deceased. Other witnesses testified that the deceased had no weapon.

I

Nelson’s first contention on appeal is that the trial court committed error when the jurors, over objection, were asked the question “Have you any conscientious scruples against capital punishment?” Nelson presented the testimony of Leonard H. Ainsworth, PhD, a clinical psychologist and Chief Psychologist for the Supreme Bench of Baltimore City, Dr. Ainsworth has had considerable training and experience. Relying upon his studies and his own experience but particularly a .study involving 187 college students by Dr. W. C. Wilson, “Belief in Capital Punishment and Jury Performance” and a study of 72 ex-jurors by Dr. Robert F. Crosson “An Investigation into Certain Personality Variables Among Capital Trial Jurors,” testified that jurors who answered this voir dire question negatively were more likely than those answering contrariwise to convict than to acquit. Nelson also presented Richard T. Kraus, M.D., a psychiatrist whose experience consisted of three years residency in psychiatry and two years in private practice, whose testimony agreed with that of Dr. Ainsworth. This same contention was recently presented to the Supreme Court of the United States in the case of Witherspoon v. Illinois, 390 U. S. 986, 88 S. Ct. 1770, 20 L. Ed. 102. At 88 S. Ct. 1774 the Court said:

“The petitioner contends that a State cannot confer upon a jury selected in this manner the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant’s innocence, accept the prosecution’s version of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he described as ‘competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.’10
“The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.”
“10 In his brief, the petitioner cites two surveys, one involving 187 college students, W.C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964), and the other involving 200 college students, F.J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Capital Cases (Unpublished Manuscript, Morehouse College, undated). In his petition for certiorari, he cited a study based upon interviews with 1,248 jurors in New York and Chicago. A preliminary, unpublished summary of the results of that study stated that ‘a jury consisting only of jurors who have no scruples against the death penalty is likely to be more prosecution prone than a jury on which objectors to the death penalty sit,’ and that ‘the defendant’s chances of acquittal are somewhat reduced if the objectors are excluded from the jury.’ H. Zeisel, Some Insights Into the Operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957).”

Although Dr. Ainsworth explained the method used by Drs. Wilson and Crosson in their studies, we do not think that the record in the present case is more impressive than that considered and rejected in Witherspoon v. Illinois, supra. We therefore reject Nelson’s first contention.

II

Nelson contends that he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States and under Article 23 of the Maryland Declaration of Rights because the trial court refused to allow interrogatories and depositions of the state’s witnesses as is permitted in civil cases. The Court of Appeals disposed of similar contentions in the case of Kardy v. Shook, 237 Md. 524, 207 A. 2d 83, and we need not repeat the reasons here. See Ward v. State, 2 Md. App. 687, 236 A. 2d 740.

III

Nelson alleges that the state concealed a witness, one Denver Wilson. Aside from the fact that he does not state what the testimony of Denver Wilson would have been, the issue was not presented to the trial court and therefore under Maryland Rule 1085 it is not before us for review. Even if we were inclined to waive the rule there is an insufficient record for us to make any intelligent resolution of the matter.

IV

Nelson next contends that the state concealed a copy of the statement of the witness, Jerry Robert Sparks. The record fails to show that Sparks gave any such statement to the police, and in any event the matter is not properly before us under Maryland Rule 1085, since the issue was not presented to and decided by the trial court.

V

Nelson requested that the trial judge instruct the jury that the State’s Attorney, in rebuttal argument, misstated the law when he said that the defendant had a right to introduce a statement of his witness, Clyde Wandley Toney. There was no objection to the argument at the time it was made, but we will consider the question since it was subsequently presented to and ruled upon by the trial court. To put the matter in proper focus we quote that portion of the argument:

“And then we go through the series of statements of what the State has produced. We didn’t produce the statement of Clyde Toney. Ladies and gentlemen, the best evidence that a man can give in Court is the evidence that he presents in Court at the time. We had a dozen different ways that we could have impeached the testimony of Clyde Toney. They are almost too numerous to count because we’ve been working on this case for so long. But simply because the State does not use one object of impeachment against Clyde Toney, we are to be accused and believed to be suppressing evidence and in some way working to hurt William Nelson, in violation of our duty as officers of the Court. Well, again, ladies and gentlemen, I’m not going to give that the courtesy of a reply. I think Clyde Toney’s testimony spoke for itself. I think the cross-examination of Clyde Toney, without any visual aids or implements of any sort, was shattered enough just by listening to that man. We didn’t produce the statement. The statement was available, very clearly available. If the defense wanted to introduce it in some way, they could have. This is his witness. He could have put it on if he wanted to.”

Although the State’s Attorney’s argument may have been a misstatement of the law we do not see how Nelson’s rights could have been so prejudiced that there is reversible error. The matter of prejudice resulting from a State’s Attorney’s argument is peculiarly for the trial judge to determine because of his superior position to judge the effect of the remarks. See Bowyer v. State, 2 Md. App. 454, 461, 235 A. 2d 317 and Avey v. State, 1 Md. App. 178, 228 A. 2d 614, cert. granted on other grounds by the Court of Appeals of Maryland, Avey v. State, 249 Md. 385, 240 A. 2d 107.

On appeal Nelson objects to several other statements made by the State’s Attorney in final argument. These were not presented to the trial court and are therefore not properly before us for review, Maryland Rule 1085.

VI

Nelson next presents the novel argument that the entire testimony of the witnesses, James Johnson and Joseph Edward Jackson, should have been stricken because of their failure to identify Nelson specifically as one of the participants in the events they described. Nelson’s identity was clearly established by other witnesses and admitted by himself. The contention is frivolous.

VII

Nelson alleges reversible error in that the trial judge refused proffered testimony of two Negro witnesses to testify that they had, “at least once a week repaired with him and other white and Negro employees to a tavern called ‘The Brass Lantern’ where they drank alcohol together, occasionally becoming drunk; where they played cards and shot dice and at no time had the defendant engaged in a fight or offered to engage in a fight with any Negro present.” At the outset it should be noted that in the record other witnesses testified that Nelson had mingled closely with Negroes on a business and social basis. While we think that in a case such as this, a general good reputation for a particular trait necessarily involved in the crime charged would be admissible, Vernon v. Tucker, 30 Md. 456, McLaughlin v. State, 3 Md. App. 515, 240 A. 2d 298, the evidence must relate to the general reputation of the accused in the community in which he lives. This is the general rule, 1 Wharton, Criminal Evidence § 222 (12th Ed.) and it is also the Maryland rule, see Allison v. State, 203 Md. 1, 98 A. 2d 273 and the cases collected therein. The trial court was clearly proper in sustaining objections to the proffered testimony as to specific acts.

VIII

Nelson alleges that the court committed reversible error in refusing instructions he requested. The first alleged error concerns a requested instruction to the effect that “if the jury find a witness has sworn falsely in testimony to one detail, material to an issue in the case, the witness may be considered unworthy of belief as to all the rest of his or her testimony.” While the statement can be considered a correct statement of law if the words “knowingly and wilfully” are inserted before the words “sworn falsely,” the question as to whether or not the refusal of the instruction is reversible error presents an entirely different problem, Basoff v. State, 208 Md. 643, 119 A. 2d 917. Generally the granting or the refusal of such an instruction is entirely in the discretion of the trial judge. The cases are collected in 4 A. L. R. 2d 1077 and indicate that a reversal on the refusal of this instruction has seldom, if ever, been granted. In the present case Louise Hill, a passenger in the car of the deceased, her father-in-law, testified that Nelson had a stick and was fighting. She further testified that Raymond Howard had only one bottle of beer and that he had been in her company for approximately four hours prior to his injuries. The autopsy showed that at the time of death his alcoholic blood level was 0.11% but the doctor gave his opinion that at midnight the blood level would have been approximately 0.16%. While the doctor’s testimony would indicate that the deceased had drunk more than one bottle of beer we cannot say that the trial judges abused their discretion in refusing the instruction. It is entirely possible that Howard did have other drinks without the witness’ knowledge, and we do not think the discrepancy was so material as to justify the instruction.

The second alleged error pertaining to the instruction consisted of the refusal of an instruction: that “if the defendant, Nelson and others, were engaged in the assault upon Raymond Howard, the deceased, and if the jury also find that one of the others suddenly resorted to use of a deadly weapon without the aid, knowledge or consent of Nelson, then Nelson has no responsibility for the homicide.” He relies on the case of Mer cer v. State, 225 Md. 14, 169 A. 2d 398. In that case .the court assumed, without deciding, the argument here presented was a correct statement of the law. We will make the same assumption. The trial court did instruct the jury as follows :

“Now, you’ve heard counsel on just how this occurred, and the defense has told you what an accomplice might be, and I will give you a definition of an accomplice. Now, an accomplice is one who knowingly, voluntarily and with common interest with the principal offender participates in the commission of a crime either as principal or as accessory before the fact. And an accessory before the fact is one who aids or abets the principal offender before or at the time of the commission of the crime. To be an accomplice a person must participate in the commission of the crime knowingly, voluntarily and with a common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime. Also, the mere presence of a person at the scene of a crime is not of itself sufficient to establish that that person was either a principal or an accessory to the crime or sufficient to establish any fact except that he was present. To be a principal or accessory, there must be some participation of some kind, as I’ve stated, in the crime itself.”

We think the instructions given adequately covered the rules of law inherent in the requested instruction, as applied to the evidence in the record. There is no necessity for the court to use the exact language requested. Maryland Rule 756 (b).

A third alleged error in the instructions relates to the refusal of an instruction: “that there has been testimony in the case that two other persons, a Mrs. Delores Woodson and a Mr. Walter Hall were in the automobile with Raymond Howard [the deceased] and were eye witnesses; the witnesses have not been called to testify and you are advised that the state has not produced testimony that is in its control and which it would naturally be interested in producing, and you may infer that the testimony would have been unfavorable to the state’s case if the state had produced it.” Nelson relies on Critzer v. Shegogue, 236 Md. 411, 204 A. 2d 180. In that case the Court thoroughly reviewed the law on this proposition and in part said:

“In De Gregorio v. United States, 7 F. 2d 295 (C. A. 2d; Rogers, Hough and Learned Hand, JJ.), the legality of two police officers’ entry was questioned. One only of the officers was called to testify, and the court refused to charge that the failure to call the other officer created an inference that his testimony would have been unfavorable to the prosecution. In upholding this ruling the Court stated: ‘The rule has been much misunderstood, and is often misapplied. It does not obtain when the uncalled witness is purely cumulative, and when he was not in a better position to know the facts than those who were called. . . Any other rule would require a party to call all eyewitnesses at the risk of having it presumed that those not called would contradict those who were. The rule has no such purpose; it rests on the notion that the suppression of more cogent evidence than that produced is some indication that it would be unfavorable.”

There is nothing in the record to indicate that the testimony of the witnesses would have been other than cumulative. See Bagley v. State, 232 Md. 86, 192 A. 2d 53, 57, Streams v. State, 238 Md. 278, 208 A. 2d 614 and Harris v. State, 1 Md. App. 318, 322-23, 229 A. 2d 604. The instruction was properly refused.

IX

Nelson alleges error in the refusal to grant his motion to strike the testimony of the various witnesses concerning what transpired in front of the Fifth Avenue or Johnson’s Bar. He relies on Dobbs v. State, 148 Md. 34, 129 A. 275 which gives the general rule that evidence of unconnected and unrelated crimes are inadmissible unless they show (1) knowledge (absence of mistake or accident) (2) motive (3) intent (4) common scheme or (5) identification. It would seem that the evidence in this case would come within all five of the exceptions. Nelson’s participation in the first instance showed that his participation in the second was not the result of any mistake or accident; showed that he was motivated by racial prejudice; showed his intent to commit harm and showed a common scheme to chase away members of a minority race from that bar and his identification as a participant in the first affair tended to show his identification as a participant in the second. See Gilchrist v. State, 2 Md. App. 635, 236 A. 2d 299, Hayes v. State, 3 Md. App. 4, 237 A. 2d 531 and Wethington v. State, 3 Md. App. 237, 238 A. 2d 581.

X

Out of the presence of the jury the judge accepted testimony from Dr. Maurice Klawans that when he was called to the jail to examine the witness, Joseph Stanley Franklin, on January 16, 1967, he found him to be in a delirious condition which he diagnosed as “acute brain syndrome probably due to alcoholism.” Based on this testimony Nelson objected to Franklin’s testifying saying that he was an incompetent witness. The state rebutted this testimony by that of Dr. Yavuz Inel, Director of Forensic Psychiatry at the Crownsville State Hospital. He testified that Franklin was competent to testify. His opinion was based on his examination over a period of months while Franklin had been a patient at the hospital. Assuming that the court would have been justified in refusing to receive Franklin’s testimony based on Dr. Klawans single observation, we cannot say that there was .reversible error because the trial judge elected to accept the testimony of Dr. Inel. Nelson questions the qualifications of Dr. Inel because he was not licensed to practice in the State of Maryland, but the Court of Appeals has ruled contrary to the contention, Crews v. Director, 245 Md. 174, 225 A. 2d 436. Dr. Inel’s qualifications were not otherwise questioned.

XI

Finally Nelson argues that the trial .court committed reversible error when it refused to allow'cross examination of Joseph Stanley Franklin about his assault and battery convictions for the purpose of showing that he was the aggressor in one of the earlier affrays. In Barger v. State, 2 Md. App. 565, 235 A. 2d 751 we held that where there is a question of self-defense and some question as to who was the aggressor recent specific acts of violence by the victim are admissible only if the specific acts were known to the accused at the time of the violence. There is no evidence in the present case that Nelson was at all acquainted with Franklin prior to the night in question. This contention is therefore without merit.

Judgment affirmed.

      . Chapter 500, Acts of 1967, approved April 31, 1967, codified as Section 8A, Art. 51, Md. Code (1968 Repl. Vol.) provides that no juror shall be disqualified by reason of his belief against capital punishment. This act became effective June 1, 1967. The trial in the present case began May 8, 1967. See Curtis v. State, 4 Md. App. 499, 343 A. 3d 636, which was tried after the statute became effective. The record in the present case shows the question was asked. It does not disclose whether or not any jurors were disqualified as a result of their answers.

      . In making this decision we are not unmindful of the decision of the Court of Appeals (4th Circuit) in Crawford v. Bounds, 3 CrL 2077, but we note that that decision was prior to Witherspoon v. Illinois, supra.


author: Per Curiam.

text:
    LEON KEELING, JR. v. DIRECTOR, PATUXENT INSTITUTION
    [No. 185,
    September Term, 1967.]

      Decided September 19, 1968.

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

Leon Keeling, Jr. was convicted on June 20, 1962 by Judge Shirley B. Jones, sitting in the Criminal Court of Baltimore, of robbery and was sentenced to five years in the Maryland State Reformatory for Males. On September 17, 1963, Judge Jones, at the request of the Department of Correction, ordered Keeling to be transferred to Patuxent Institution to determine whether he was a defective delinquent pursuant to the provisions of Art. 31B, § 5, Md. Code (1967 Repl. Vol.). After a full evidentiary hearing before Judge Michael J. Manley, sitting with a jury, he was found to be a defective delinquent and was ordered by Judge Manley to be committed to Patuxent in accordance to Art. 31B of the Code. On November 22, 1967, it was redetermined that he was a defective delinquent in a trial before Judge Joseph L. Carter, sitting without a jury. It is from this redetermination that he requests leave to appeal.

Keeling contends that he did not receive a fair redetermination hearing in that:

(a) the judge who presided at the redetermination hearing was biased.
(b) Dr. Boslow was biased.
(c) his trial counsel was incompetent.

All of the reasons that the applicant assigns are without merit.

The first reason cited is a bald statement without any showing how the judge was not impartial or how the applicant was in any way prejudiced. Bald assertions afford no grounds for relief. Wilmer v. Warden, 244 Md. 718, 224 A. 2d 106, Curnyn v. Warden, 1 Md. App. 450, 230 A. 2d 685.

The second reason advanced by the applicant is also a bald statement affording no grounds for relief.

The last reason advanced by the applicant is in regards to incompetency of counsel at the redetermination hearing on the grounds that he failed to discuss with the applicant his choice of an independent psychiatrist; failed to notify him of any report rendered by the independent psychiatrist or the contents of that report; and failed to present any defense on behalf of the applicant. The statute permits him to select a psychiatrist of his own choosing to examine him at public expense. Apparently his lawyer selected a psychiatrist to make such an examination. He does not allege that he made any objection to the selection thus made, or that he was in any manner prejudiced thereby as required by Daugherty v. Director, 235 Md. 662, 202 A. 2d 593. The standard now used to determine competency of counsel is whether the petitioner has been afforded genuine and effective representation, Green v. Warden, 3 Md. App. 266, 238 A. 2d 920, Gullion v. Warden, 3 Md. App. 263, 239 A. 2d 140. Neither the allegations nor the record before us discloses any indication that petitioner was not afforded such representation at the redetermination hearing. In all probability the reason that the applicant’s counsel did not summon Dr. Lerner, a psychiatrist selected by the applicant’s court-appointed attorney to examine him, was that Dr. Lerner stated in his report “At the present time he fits the description of a Defective Delinquent in accordance with the Maryland State law quite well.”

Application denied.


text:
    IRVIN VENEY v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 186,
    September Term, 1967.]

      Decided September 19, 1968.

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

The application of Irvin Veney for leave to appeal from an order of Judge James A. Perrott, presiding in the Criminal Court of Baltimore, denying relief prayed in a third petition under the Uniform Post Conviction Procedure Act is denied for the reason that the petition failed to set forth any allegations of special circumstances tending to rebut the statutory (Md. Code Art. 27, Sec. 645 c; Md. Rule BK 48 as amended) presumption of waiver arising from his failure to raise the issues in his direct appeal, Veney v. State, 225 Md. 237, 170 A. 2d 171 or in the second post conviction petition which was appealed, Veney v. Warden, 232 Md. 659, 194 A. 2d 273. See Jones v. Warden, 2 Md. App. 343, 234 A. 2d 472. It is also noted that the petitioner has also filed four habeas corpus petitions.

Veney included a supplement to his application for leave to appeal presenting additional questions regarding his conviction. Claims not asserted in the lower court will not be considered by us on an application for leave to appeal. Roe v. Director, 240 Md. 717, 214 A. 2d 162.

Application denied.


author: PER Curiam.

text:
    LYNN KENNY PRICE v. STATE OF MARYLAND
    [No. 362,
    September Term, 1967.]

      Decided September 19, 1968.

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

      Norman P. Summers, with whom was Harry D. Barnes on the brief, for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Brands B. Burch, Attorney General, and Donaldson C. Cole, Jr., State’s Attorney for Cecil County, on the brief, for appellee.
   PER Curiam.

The appellant was found guilty of assault and battery by a jury in the Circuit Court for Cecil County and sentenced to imprisonment for a term of two years.

On appeal he contends that the evidence was not sufficient to sustain the ■ conviction, that he was prejudiced by the remarks and conduct of the trial judge and that there was error in admitting certain evidence.

I

No. motion for judgment of acquittal was made by the appellant' either at the close of the evidence offered by the State or at- the close of all the evidence. In the absence of such a motion at the close of all the evidence this Court will not review the sufficiency of the evidence in a case tried by a jury. Culver v. State, 1 Md. App. 406; Quinn v. State, 1 Md. App. 373. In any event, in the instant case there was evidence that a girl 16 years of age, babysitting for her neighbor, took six young children to movies on Saturday afternoon about 2:30 P.M. to see a double feature of two Walt Disney movies. She was seated in the first row that was empty with four of the children, two of them going further down front. The appellant, who was seated in the row in front of where she was seated, kept glancing back at her. “While the movie went on, he had his hand down behind the seat and he bumped my leg. I did not think anything of it, I thought it was an accident. At different times I had to go up and get candy and things for the kids, and every time I went, he watched and kept looking back. One time I was coming back from the candy thing and he was standing there by the men’s room watching which way I was going * * * I did not want to go by him, so I went around the other way, back to the kids, back where they were sitting. When I got back and sat down, he had returned to his seat * * * So one time I was taking one of the kids up to the front to go to the bathroom, that is when he put his hand down behind, and he had his hand there and had a hold of my leg, I said, ‘You beast,’ and took off to the front of the movies * * * He had hold of my leg, he grabbed it as 1 was getting up.” He had hold of her leg “about around the knees. I pushed my way by and he did not move his hand. I was scared to go back, so I sent Dolores down to get the other kids and he told them not to move.” She had one of the children call their father, Miller Carroll. The father saw the babysitter in front of the Sheriff’s office. “She was very disturbed and upset. She was crying and really emotionally upset * * * She said a gentleman in the movies had been fooling with her legs.” She accompanied the father and the theatre manager into the movie, although she “did not want to go. She was scared. We went as far as the door in the movies and she saw him, then she turned and in a very emotional way and ran out the door.” The appellant accompanied the theatre manager to the jail where he was identified by the prosecuting witness. The appellant, 30 years of age and married, testifying on his own behalf, denied putting his hands on the girl or that he touched her in any way or that he glanced back at her or looked at her. “Any unlawful injury whatsoever, however slight, actually done to the person of another, directly or indirectly, in an angry, revengeful, rude or insolent manner is a battery. Every battery includes an assault * * Clark and Marshall, Crimes, 6th Ed. § 10.19, p. 654; Leatherberry v. State, 4 Md. App. 300, 305; Kist v. State, 4 Md. App. 282.

The test in reviewing the sufficiency of the evidence in a jury case is whether any relevant evidence was given to the jury which could have sustained the conviction. Tillery v. State, 3 Md. App. 142. We think the evidence here met this test; we cannot say that there was no relevant evidence before the jury which could have sustained the conviction. The jury was not obligated to believe the denials of the appellant. Johnson v. State, 2 Md. App. 486; Logan v. State, 1 Md. App. 213.

II

During the direct examination of Miller Carroll the State asked what happened when he saw the prosecuting witness in front of the Sheriff’s office. Carroll said, “I talked to her and she told me about this — .” Defense counsel objected to the witness testifying as to what the prosecuting witness said. The record shows the following:

“THE COURT: He can say she made a complaint and the nature of the complaint.
MR. BARNES: If it please the Court. The defendant was not present.
THE COURT: This is a corroboration for the person that made the complaint, just as it is in the other sex offenses. The truth of it is, of course, for the jury to decide. It is in a sense, corroborative of the girl’s statement, because nobody saw it except she. I am going to permit this. You have your objection and I overrule it.
Q. Mr. Carroll, what was the nature of her complaint, not her conduct ? :
A. She said a gentleman in the movies had been fooling with her legs.”

The appellant contends that he was prejudiced by the reference of the trial judge to “other sex offenses” as it was “such as to inflame the conscience of the jury and prejudice the jurors against him.” But no objection was made to the remarks nor did the appellant move to strike them or request that a mistrial be declared. The point is not properly before us. Md. Rules, 1085. The appellant also claims that the court erred in overruling the objection to the testimony. We do not feel that the testimony that the prosecuting witness said that “a gentleman in the movies had been fooling with her legs” was properly admissible under the rule relating to complaints and the details thereof applicable in rape cases as set forth in Green v. State, 161 Md. 75, 82 (see Culver v. State, 1 Md. App. 406, 414). But we do think that the testimony was admissible as part of the res gestae. We said in Reckard v. State, 2 Md. App. 312 at 316-317 :

“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.
To constitute res gestae an utterance need not in all strictness be contemporaneous, in the sense of simultaneous, with the principal act; it may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated by meditation.
The point is not so much the lapse of time or change of place as the continuance of a situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an independent, preconceived action of the speaker’s will.”

In the instant case the declaration was made at such a time and under such circumstances that the exciting influence of the occurrence clearly produced a spontaneous and instinctive reaction on the part of the declarant. She was still emotionally engulfed by the situation. We find no error in the court’s ruling.

The appellant also complains that the trial court was prejudiced against him and not impartial because it sustained objections to certain questions propounded by his counsel on the direct examination of him. The questions were attempting to elicit where the appellant had been taken after his arrest and whether he had a preliminary hearing. The relevancy of the evidence sought was not apparent and there was no offer of proof to show that it was relevant. See McCormick, Evidence (1954), § 151. We find no error in the court’s rulings axxd no showing that the court was in anywise prejudiced against the appellant or other than impartial.

Judgment affirmed; appellant to pay costs.

      . The appellant was arrested on July 8, 1967. The docket entries show that a criminal information was filed against him on 19 July, bail was set at $1000 on 31 July and a recognizance bond in that amount was filed the same day. In argument to the court defense counsel said that there was a hearing “where (the appellant) was illegally detained and they sent him to the insane asylum * * * ” but the record is otherwise silent on the matter.


author: Murpi-iy, C.J.,

text:
    JEROME POWELL EDMONDS a/k/a JEROME POWELL and HENRY GARFIELD STANLEY v. STATE OF MARYLAND
    [No. 364,
    September Term, 1967.]

      Decided September 19, 1968.

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

      H. Rutherford Turnbull, III, for appellants.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Robert A. DiCicco and Clewell Howell, Jr., Assistant State’s Attorneys for Baltimore County, on the brief, for appellee.
   Murpi-iy, C.J.,

delivered the opinion of the Court.

Appellants were convicted by the court sitting without a jury of (a) breaking a specified outhouse (storehouse) of Goodyear Service Stores with intent to steal goods of the value of $100.00 and upwards, and (b) with breaking into said premises and stealing therefrom designated goods of a value of $5.00 and upwards. Each appellant was sentenced to eight years imprisonment. On this appeal they jointly contend (1) that the trial court erred in admitting in evidence their fingerprint records on file with the Baltimore County Bureau of Identification since they contained their past criminal histories, and (2) that the evidence was insufficient to justify their convictions;

There was evidence adduced at the trial showing that sometime between the hours of 12:15 a.m. and 7:50 a.m. on June 10, 1967, the Goodyear Service Store in Baltimore County was broken into and goods of a value in excess of $2,200.00 were stolen. Entry had been made by breaking out a 22" x 33" pane of glass in a ground level overhead-type door. The broken glass had been neatly stacked in a pile alongside the door. An office within the building, partially enclosed by glass, had also been entered by cutting out a pane of glass. A piece of cut glass was found on the office desk. Both the outer door and the interior office were located in areas accessible to and used by the general public.

Corporal Edward Vanik of the Baltimore County Crime Laboratory processed the crime scene shortly after 9 :00 a.m., at which time he lifted a number of latent fingerprints from the broken glass fragments. Testifying with reference to the prints which he obtained from the broken glass found at the outer door, Vanik stated that the prints were so located “that whoever removed the glass deposited these prints on same, because 1 received prints from both sides of the glass at the edge in a way that it would have to have been placed on there by the subjects who removed the glass from the door.” Vanik further testified to lifting fingerprints from the glass fragment found on the desk in the interior office. The officer also stated that all of the latent fingerprints lifted by him on both sides of the broken glass were less than a day old.

Sergeant William D. Krause, a fingerprint expert, testified that he compared the latent prints on the broken glass found at the outer door and in the building office “with the known set of fingerprints.” When asked the results of that comparison, the appellant Stanley objected on the ground that “there’s no basis for what he is comparing to,” so that “he cannot now testify as to whether there was a likeness or non-likeness.” The court sustained appellant Stanley’s objection. Sergeant Krause then testified without objection that he compared the latent fingerprints with “two sets of fingerprint cards,” (containing ink rolled impressions) one belonging to each appellant and identified by their Baltimore County Bureau of Identification number. Asked as to his conclusions following these comparisons, appellant Stanley again objected on the ground that introduction of the fingerprint card would be prejudicial since it would indicate that the subject of the card had been arrested. The court did not directly rule on the objection, but permitted Sergeant Krause to testify that appellant Stanley had been fingerprinted on February 25, 1963, March 20, 1966, and August 20, 1967. Appellant Stanley again objected on the ground that such testmony indicated the existence of a prior criminal record, noting at the same time that the fingerprint cards in question, together with photographs and police cards, were “spread out” before Sergeant Krause four or five feet from the bench, “all of which is to the absolute prejudice of the defendant.” Appellant Edmonds expressly waived any objection on the same ground. The court, after noting that testimony as to a prior criminal record of the accused is generally inadmissible, then stated:

“* * * I don’t see how the mere fact that they have a card of this nature you can infer or assume that there have been convictions. I think all it would show, at most, would be an arrest and maybe not even that much, because, they can obtain a card on a voluntary basis, or a print on a voluntary basis.”

Against this background, Sergeant Krause was then asked on direct examination as to the results of such comparison and appellant Stanley again objected, this time on the ground that the fingerprint cards had not been admitted in evidence. The court ruled, in effect, that there was no necessity to put the cards in evidence and that “they’re not going to be allowed in evidence, I don’t think.” Sergeant Krause then testified that the latent prints were those of appellants Stanley and Edmonds.

On cross-examination appellant Stanley’s counsel asked Sergeant Krause in effect to explain the nature of the Baltimore County Police Bureau fingerprint cards, counsel inquiring specifically of Krause:

“What would those records indicate to you, I don’t have any idea, we haven’t seen them, they haven’t been introduced -in evidence, would you tell his Honor what the records are, what they mean ?”

Krause replied that on a certain day fingerprint impressions of the subject are ink rolled on the card. Krause was then asked by Stanley’s counsel whether the card indicated that the subject was a member of “the postal service, or were they in the armed forces, or was this a security check to get a job with the Government or what?” Krause responded that the subjects were either arrested for investigation or were charged with some offense. Appellant Stanley’s counsel then directed Krause to read what was on the card and Krause said:

“One card indicates August 20, 1967, investigation of breaking and entering, and on February 25, 1963, it has larceny of guns, in parenthesis, shoplifting laws. March 20, 1966 it has on it the charge of grand larceny.”

Following these self-induced testimonial revelations concerning the nature of the fingerprint cards, and of the offenses with which Stanley had been charged, he then objected thereto on the ground that the card indicated that he had a prior police record. On redirect examination of Sergeant Krause, the State introduced without objection appellant Edmonds’s fingerprint card dated August 23, 1967; and also introduced, over objection, appellant Stanley’s card dated March 20, 1966.

Neither appellant testified and no evidence was offered on their behalf. The court found each appellant guilty on the evidence of their fingerprints found at the scene of the crime considered in the light of all the attendant circumstances.

I

Appellants contend that the trial court committed prejudicial error when it admitted into evidence their Baltimore County Police Bureau fingerprint cards which contained their criminal histories, since they were thereby denied their constitutional right to a fair trial.

As to appellant Edmonds, when his fingerprint card was offered in evidence, his counsel examined it and offered to stipulate that Edmonds was arrested on August 23, 1967. No objection was entered at any time during the trial to the fingerprint card or to any testimony concerning it. Since the contention that Edmonds’s fingerprint card was erroneously admitted was not raised or decided below, it is not properly before us for appellate review. See Maryland Rule 1085. The admissibility of Edmonds’s fingerprint card is thus not an issue within the scope of this appeal. Baker v. State, 3 Md. App. 251; Anthony v. State, 3 Md. App. 129; Bell v. State, 2 Md. App. 471.

As to appellant Stanley, it is entirely clear from the record that Sergeant Krause’s testimony concerning the existence of appellants’ fingerprint cards among the records of the Baltimore County Bureau of Identification came in without objection on the State’s direct examination and as a result of Stanley’s insistence that a proper foundation be laid before the Sergeant could be permitted to testify as to his identification of the latent fingerprints found at the crime scene as being those of appellants. We think it plain that the State’s only purpose in making reference to appellants’ fingerprint cards was to identify the basis upon which Sergeant Krause predicated his conclusion that the latent prints found at the scene of the crime were those known to belong to the appellants. It was not the State, but the appellant Stanley who produced the testimony showing that the fingerprint cards contained a notation that he, Stanley, had been charged with criminal offenses. Appellant Stanley introduced this testimony at a time when it was questionable whether the State would offer the cards in evidence, and despite the fact that the court had previously indicated that it did not view the mere existence of a fingerprint card as meaning that the subject of the card had a criminal record. Indeed, it was appellant Stanley’s position, on the one hand, that the cards must be placed in evidence if Sergeant Krause was to make any reference to them, and, on the other hand, Stanley contended that the cards were inadmissible since they contained prejudicial information indicating a prior criminal record. Under these circumstances, the State’s subsequent introduction of appellant Stanley’s fingerprint card of March 20, 1966 was less than anticlimactic and we do not think that its admission could be deemed prejudicial. Even if the card was inadmissible, the fact that the appellant himself produced the evidence which he now claims was prejudicial would, in no event, constitute reversible error. See Jones v. State, 205 Md. 528.

Since fingerprinting is used in numerous branches of business and civil and military service, we make the observation that the fact of fingerprinting cannot, of itself, be deemed a badge of crime or connote the existence of a criminal record, nor would the introduction of such evidence for the limited purpose of comparison with latent fingerprints of an accused found at a crime scene per se constitute prejudice or deny the accused his constitutional right to a fair trial. See United States v. Kelly, 55 F. 2d 67 (2nd Cir.) ; State v. Riley, 154 N. W. 2d 741 (Neb.) ; Tester v. State, 416 P. 2d 52 (Okla. Cr.) ; Bridges v. State, 19 N. W. 2d 529 (Wis.). It has been held that where such a fingerprint record contains extraneous matter which is itself incompetent and prejudicial, the introduction thereof in evidence may or may not constitute reversible error, depending on such factors as whether the material was or was not seen by the trier of fact or whether the objection thereto, if made, was waived by the defendant. See Annot., 28 A. L. R. 2d 2115, at 1135-1136. Thus, in I^ester v. State, supra, it was held that the admission of an accused’s fingerprint records for comparison purposes was not error where the record was so covered up that the extraneous material (that it was a police department record) was not seen by the jury. To like effect, see Sibley v. United States, 344 F. 2d 103 (5th Cir.) ; Moon v. State, 198 P. 288 (Ariz.); State v. Viola, 82 N. E. 2d 306 (Ohio).

In Riley, the question before the court was whether a mistrial should have been granted because of the admission, over objection, of certain police department fingerprint records of the defendants which had been taken prior to the commission of the crime for which they were on trial. There, as here, the objection to such evidence was on the basis that the introduction of the fingerprint cards tended to show prior criminal activity on the part of the defendants. The court held at page 743 that, at most, the records inferred “that the defendants had some prior contact with the police,” and that there was “no legal inference of the commission of another crime or being charged with another crime from the fact that a police identification department has on record the fingerprints of a person.” In concluding that the introduction of the fingerprint cards was not prejudicial to the defendants, the court, quoting from Bridges v. State, supra, stated: (pp. 743-744)

“In this age and particularly in these times it is a matter of common knowledge that it has become customary and considered proper in private business and industry, as well as in public service and institutions, to take photographs and fingerprints of individuals, who are connected therewith or engaged or detained therein, for their identification for many other purposes or respects than in criminal matters. It is commonly known that such photographing and finger printing is a matter of daily practice and the usual method of identification used in the police service in populous communities of persons arrested, — but not yet convicted, — for violations. The use of that practice and method is considered to be for the common good and the rights of police authorities to resort thereto has been recognized in most jurisdictions, and such use thereof is, in itself, not considered a badge of crime.”.

While we do not think it essential to the State’s case that such a fingerprint record be actually introduced into evidence (see Couser v. State, 4 Md. App. 543), where, as here, the fingerprint card was not introduced until after the accused himself produced the testimony showing the notation on such card of the allegedly prejudicial matter (the prior criminal charges), we think, as heretofore stated, that the card’s admission under such circumstances would in no event constitute reversible error. In so concluding, we are mindful of the fact that the trial judge in this non-jury case advised the appellant Stanley that in his opinion the mere existence of a fingerprint record of an accused did not mean that such person had a prior criminal record. In any event, we do not assume that bias, prejudice or improper influence prejudiced the defendant; the burden is on him to show that such fact existed. Halstead v. State, 4 Md. App. 121. We do not think that appellant Stanley has met this burden, nor do we find the cases relied upon by him apposite under the facts of this case.

II

Appellants’ contention that the evidence was insufficient to support their convictions is grounded on the premise that evidence of their fingerprints found at the scene of the crime, standing alone, is not legally sufficient evidence upon which to base a conviction in the absence of a showing by the State that the prints could only have been impressed at the time the offense was committed.

It has been generally recognized that where, as here, the only evidence of guilt of accused persons consists of their fingerprints found at the scene of the crime, the evidence, to be legally sufficient to sustain a conviction, must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the prints were impressed at a time other than that of the crime. McNeil v. State, 227 Md. 298; Slacking v. State, 4 Md. App. 664. 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. See Lawless v. State, 3 Md. App. 652. In that case, we said at p. 659;

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

On the record before us, we are persuaded that the judgment of the lower court sitting without a jury was not clearly erroneous (see Maryland Rule 1086), as the evidence of the attendant circumstances with respect to the finding of appellants’ fingerprints on the broken glass was such that the trial judge could properly conclude that they were present at the time the crime was committed and that they were, in fact, the criminal agents.

The evidence was clear that the crime was committed within a seven hour span in the early morning hours of June 10, 1967. That entry had been effected through the outer door from which glass had been removed was likewise clear. It would be beyond reason, in the absence of evidence to the contrary, to assume that anyone other than the burglars had neatly stacked the glass fragments from the broken panel. The fingerprints on the glass fragments found at the outer door appeared on both sides of the glass in such a manner as to compel the conclusion that they were imprinted at the time the glass was removed from the door. And the evidence showed that the prints were less than a day old. Linder these circumstances, and bearing in mind that appellant Stanley’s prints were also found on the glass cut out from the window of the interior office — the only rational conclusion being that it was the burglars who removed the glass from both the outer door and inner office window — we conclude that the evidence was legally sufficient to support the convictions of each appellant.

Judgments affirmed.

      . Such a door, when opened, slides into the ceiling of the building-.

      . People v. Van Cleave, 280 P. 983 (Calif.); United States v. Dressier, 112 F. 2d 972 (7th Cir.).

      . In Musgrove v. State, 3 Md. App. 54, we said at p. 56 that it was “a sound principle of law that proof of fingerprints corresponding to those of the accused, found in the place where a crime was committed, under such circumstances that they could only have been impressed at the time the crime was committed may be sufficient proof of identity to sustain a conviction.” Appellants seize on our use of the term “only” in Musgrove and contend that unless the prints could only have been impressed at the time the crime was committed, the evidence is insufficient to convict. Our recitation of the rule in Musgrove was not intended to, nor did it, establish a different standard of legal sufficiency of fingerprint evidence to support a conviction than that set forth by the Court of Appeals in McNeil v. State, supra. See Lawless v. State, supra. For cases in which we found fingerprint evidence sufficient to support a conviction, see Flacking v. State, supra; Couser v. State, supra; McGhee v. State, 4 Md. App. 356; McCargo v. State, 3 Md. App. 646; Hannah v. State, 3 Md. App. 335. For cases in which we found such evidence insufficient to convict, see Gray v. State, 4 Md. App. 155; Mills v. State, 3 Md. App. 693, and Musgrove v. State, supra.


author: Orth, J.,

text:
    WILLIAM CHARLES BARNES v. STATE OF MARYLAND
    [No. 372,
    September Term, 1967.]

      Decided September 19, 1968.

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

      James W. McAllister for appellant.

      Dickee Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Thomas N. Biddison, Jr., Assistant Attorney General, Joseph D. Werner, State’s Attorney for St. Mary’s County, and Fred Grant, Assistant State’s Attorney for St. Mary’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty generally under a two count indictment charging robbery with a deadly weapon and robbery, by a jury in the Circuit Court for St. Mary’s County and sentenced generally to imprisonment for a term of 18 years.

On appeal from the judgment he presents three questions:

I “Was the appellant deprived of his constitutional rights ?”
II “Was the evidence of identification proper and sufficient in view of the testimony ?”
Ill “Was the evidence sufficient to sustain the conviction?”

I

The appellant claims that he was deprived of his constitutional rights but his argument is completely lacking in specificity. He briefly summarizes the procedural requirements of Miranda v. Arizona, 384 U. S. 436 and cites Escobedo v. Illinois, 378 U. S. 478 and Gideon v. Wainwright, 372 U. S. 335 but does not state how they are here applicable. No statement obtained from the appellant during a custodial interrogation was offered in evidence so Miranda affords him no benefit. Crosby v. State, 2 Md. App. 578. The record does not disclose that he at any time requested counsel and such request was denied so he is not within the ambit of Bscobedo. Reeves v. State, 3 Md. App. 195; Crumb v. State, 1 Md. App. 98. Nor does it show that he was not afforded effective representation of counsel at every critical stage of the proceedings against him as required by Gideon and its offspring. Such contentions as he raises in regard to the first question are without merit.

II

The State produced two witnesses who made a courtroom identification of the appellant as one of the robbers. Ezmer E. Taylor, an eyewitness to the crime, made a positive identification. The transcript of the trial is not clear as to the courtroom identification by the victim of the robbery, Dorothy M. Stehley. During the direct examination of her, after she had recounted the circumstances of the robbery, stating that there were two robbers, one of whom had a rifle, the transcript reads as follows :

“Q. Mrs. Stehley, would you look around here and take your time and tell us whether or not you can identify the one with the rifle.
A. (The witness pointed).
THE COURT: No, you don’t have to walk around. Just count down or describe pieces of clothing which one you’re pointing to.
THE WITNESS : This one, the next to the end.
THE COURT: Which one?
THE WITNESS : The next to the end.
THE COURT: All right.
THE WITNESS: I haven’t seen him for over a year.”

The State continued its examination, eliciting testimony as to the size of the man with the rifle (about 5 feet 10 inches, 150-160 pounds), how he was dressed at the time of the crime (a dark overcoat, a Derby hat with a small brim, black, a white shirt and tie), how long he had been in her view (about 10 minutes), whether he had anything on his face (he did not but another robber did), and whether she was shown “any pictures of a number of people” (she had been shown pictures shortly after the crime by the police). At this point defense counsel objected, saying, “It’s perfectly clear the witness has not identified the defendant in this case, Your Honor. And Mr. Weiner now is trying to show a group of pictures that the defendant appears in.” Mrs. Stehley thereupon said, “Well, I said the one in the end.” The State, over objection, showed her eight pictures from which she picked out the picture of the appellant as the robber with the rifle and the pictures were admitted in evidence with no objection. On cross-examination she was asked:

“Q. You did, when asked by the State’s Attorney, to point and by the judge, to point to one. You did point to this gentleman here.
A. Yeah, but I pointed to that one first.
Q. But you pointed to this one in answer to the judge’s question, did you not?
A. That’s right. I haven’t seen him for a year.
Q. But you were shown a picture of him by the State. You were shown this group of pictures by the State about a week, about two weeks ago, weren’t you?
A. Yes.”

On redirect examination the transcript shows:

“Q. Mrs. Stehley, when you first pointed to Barnes (the appellant) did he have his hand up or up— (the question was objected to as leading and the objection was overruled).
THE WITNESS: You mean when he came in?
MR. WEINER: Today, yes, now. When you first identified Barnes, was his hand down or up from his face ?
THE WITNESS : I think it was up a little.
BY MR. WEINER:
Q. When you first—
A. Yes, I first identified him as the one. That is right.
Q. When you first identified him, was his hand down?
A. I think it was up, but I’m not positive.”

The witness was then questioned on re-cross-examination by-defense counsel:

“Q. And the judge did ask you to point out to the jury the person that came into the Atwood Bus Station. And in answer to the judge’s question, you did point to this gentleman here.
A. That is second choice. I pointed to this one first.
Q. Did the judge not ask you to point or to describe the clothing by which this person was dressed?
A. Yes.
Q. You understood his question? You understood the judge’s question?
A. Yes, when — -
Q. In answer to the judge’s question you pointed to this gentleman.
A. Yeah, but this one first.
Q. You’re missing my — my question is, in answer to Judge Bowen’s question you pointed to this gentleman.
A. The second time, yes. It’s been a year since I’ve seen him.
Q. I understand.
MR. WEINER: You first pointed to Barnes, is that correct ?
THE WITNESS : I first pointed to Barnes.”

In any event, we think from the transcript that defense counsel, the State and the court accepted that Mrs. Stehley had identified the appellant in the courtroom at some stage during her testimony. At the trial, defense counsel, in arguing the matter to the court, acknowledged that she had identified the appellant in the courtroom and in his brief, the appellant so acknowledges — “[t]he testimony further shows that Mrs. Stehley identified one other than the defendant in court as the defendant (sic), though she later changed.” He then refers to the “other witness (Taylor) to identify the defendant at the trial * *

As we construe the arguments made by the appellant in his brief with regard to his question II, he raises three contentions. First, he baldly states: “As a corollary to question No. 1, the evidence of the identification should have been excluded under the applicable cases cited thereunder.” We find none of them applicable. The constitutional principles enunciated in Miranda relate only to custodial interrogations. The placing of an accused in a line-up and the viewing of pictures by witnesses are not testimonial or communication acts of the accused and are not within the ambit of Miranda. The applicability of the right to counsel under Gideon and Escobedo, the other two cases cited by him under his question I, leads into his second contention, that the identification evidence was inadmissible because he was not represented by counsel at the line-up or when the witnesses had been shown pictures. He relies on United States v. Wade, 388 U. S. 218. But neither Wade nor Gilbert v. California, 388 U. S. 263 are applicable to the instant case, for we apply their principles only to line-ups conducted after 12 June 1967. Stovall v. Denno, 388 U. S. 293; Thompson v. State, 4 Md. App. 31; Tender v. State, 2 Md. App. 692. The line-up here was conducted prior to that date. The absence of counsel at the lineup did not preclude the challenged testimony. There was no claim that the line-up was otherwise improper. And there is no constitutional requirement that counsel be present when pictures are viewed by witnesses. See Simmons v. United States, 390 U. S. 377, decided 18 March 1968. The third contention is that the courtroom identification of Taylor and Mrs. Stehley was inadmissible because it was “tainted.” As far as we can gather from the argument in the brief, the claim that such evidence was “tainted” was based on the fact that pictures in which that of the appellant was included, had been shown to the witnesses and that although Mrs. Stehley identified the appellant at the line-up, Taylor did not make an identification thereat. The appellant alleges that “about a week before the trial, all the witnesses had a conference with counsel for the State and were shown photographs (six) which included the defendant. All this in the presence of each other and for a period of about an hour.” This allegation does not appear to be supported by the record. A police officer testified that Mrs. Stehley was shown six photographs two weeks before trial and identified that of the appellant. Taylor testified that he was shown nine or ten photographs about a week before the trial and picked out that of the appellant. Another witness was shown six photographs a week before the trial but was unable to make an identification. There is no evidence that another witness was ever shown the photographs.® Photographs shown the witnesses were admitted in evidence without objection. Evidence as to the extrajudicial identifications was challenged only on the basis of Wade. There was no claim at the trial and there is none on appeal that the confrontation of the witnesses with the pictures was otherwise improper. The general rule is that testimony that a victim was able to identify his assailant from a police photograph is admissible. Austin v. State, 3 Md. App. 231. In Simmons v. United States, supra, noting that “[d] espite the hazards of initial identification by photographs, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through the scrutiny of photographs,” and recognizing that the “danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the methods potential for error,” the Supreme Court said that it was “* * * unwilling to prohibit its employment, either in the exercise of our supervisory power or,' still less, as a matter of constitutional requirement. We hold that each case must be considered on its own facts, and that a conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” We find nothing in the record before us that the photograph identification procedure in the instant case was so impermissibly suggestive and hold that the courtroom identifications were properly admitted in evidence. Compare Rath v. State, 3 Md. App. 721. That Taylor did not identify the appellant at the line-up (he said that at that time he was scared of the appellant), such lack of positiveness in the identification at trial by Mrs. Stehley and the pretrial identification by photograph went only to the weight of the identifications, a matter for the jury. Cox v. State, 3 Md. App. 136; Logan v. State, 1 Md. App. 213.

We have found that the “evidence of identification” was properly admitted. We also think that it was sufficient to show the criminal agency of the accused. The jury could have reached this conclusion by the identification of Taylor without considering the testimony of Mrs. Stehley on the matter. The positive identification of a single eyewitness, if believed by the trier of facts, is sufficient to sustain a conviction. Montague v. State, 3 Md. App. 66.

Ill

There was evidence before the jury that Mrs. Stehley, a cashier and ticket seller at the Atwood Bus Station was on duty shortly after 2:00 A.M. on 30 November 1966 when she -was robbed by two men, one of whom was armed with a rifle. They stole about $2700 from a cash drawer and a safe behind the counter. The one with the rifle was unmasked but the other had a mask over his face. Taylor was a passenger in a taxi cab which pulled into the station while the robbery was in progress. The appellant ran out of the station with a rifle, came up to the cab and “tells everybody to get out * * * and put your hands over your head.” He then ordered them to run “through the alley.” Taylor heard a car drive off, “very loud.” He also saw another man behind the counter but “I focused my attention to the man with the gun more than I did the other man.” The car was a ’51 Chevrolet. As the men came into the station, Mrs. Stehley had pushed a button which activated a buzzer in the cab stand. The taxi cab dispatcher told the driver of the cab in which Taylor was one of the passengers to investigate and when he drove up “I saw a man behind the counter and I saw a man in front of the counter. A lady had her hands up and then the man in front of the counter had a rifle pointed at the lady.” He corroborated the testimony of Taylor about being ordered out of the cab and “chased up the alley.” He also heard the car starting and saw it drive away. He had seen it parked behind the station. The testimony of another passenger in the cab w'as substantially the same. The getaway car had been touched up with a “spray bomb” and had “mag wheels on the front.” The next morning the police located a car answering the description of the car used in the robbery in a garage by the appellant’s residence. It was owned by the appellant’s stepbrother. While the police were looking at the car the appellant came out of the house and said he had not driven the car lately because it had “an inadequate muffler and bad tires.” On 2 December Mrs. Stehley picked out the photograph of the appellant from among six photographs shown her. The cab driver and his passengers identified the car as the one they had seen drive away from the scene of the crime. The appellant, testifying on his own behalf, denied that he had committed the robbery but admitted that he had driven the car in the past and although his brother had the keys to the car “there’s a lock switch on it and the switch could be jimmied and it could be started.”

In order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Agresti v. State, 2 Md. App. 278. We have no difficulty in finding that there was legally sufficient evidence on which the jury could find that the crime of robbery, had been committed and that it had been committed with a dangerous and deadly weapon. We have found that there was evidence sufficient to show that the appellant was one of the participants in the crime by the positive identification of him by an eyewitness ; the identification of the car used in the crime and its connection with the appellant are-also of probative value with regard thereto. There being legally sufficient evidence to prove both the corpus delicti of the crime and the criminal agency of the appellant, the jury could properly find him guilty beyond a reasonable doubt and we may not overturn the judgment.

Judgment affirmed.

      . The verdict of guilty generally convicted the appellant on each count. Manning v. State, 2 Md. App. 177. 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 only 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 based on the same alleged acts, was a conviction on a duplicitous count. Jones v. State, 3 Md. App. 608. But the appellant did not raise the point below and does not raise it on appeal, treating the verdict of the jury as a conviction of robbery with a deadly weapon. The general sentence imposed was within the maximum authorized by § 488.

      . This case points up the importance of identifying for the record those matters occurring during the testimony of a witness which are not apparent from the words of the witness or the words of the court and counsel. While what went on here may have been clear to those present at the trial, it is certainly obscure from the bare transcript of the testimony. It cannot be ascertained from the transcript to whom the witness pointed, who was the person “next to the end” and “on the end,” who was “this gentleman here” or “this one” or “that one.”

      . The crime was committed on 30 November 1966. The trial commenced 17 November 1967.

      . Defense counsel objected to and moved to strike a police officer’s testimony concerning the identification of the appellant from the pictures “based on a recent Supreme Court case U. S. versus Wade.” The courtroom identification by Taylor came in without objection and thereafter defense counsel moved to strike it “for the same reasons.” Motion was made to strike the courtroom identification by Mrs. Stehley “for the reason that Mrs. Stehley had identified the defendant at a line-up when the defendant was not represented by counsel, and the State had not laid a proper foundation for her identification outside of the line-up itself.” The objections were overruled and the motions denied.

      . The cab driver described “mags” as “a racing tire rim made of magnesium alloy that are both a decoration and functional on some cars. And they are very popular with young people.”

      . The appellant’s brother, Henry M. Barnes, operated a tavern, Mable Ball’s place, at St. Inigoes. He testified that he purchased the car about a month before 30 November 1966 but had not been driving it because “I had to do some work to it.” He had another car, a ’65 station wagon, which he drove.


text:
    ROBERT LINDSAY FISHER v. STATE OF MARYLAND
    [No. 377,
    September Term, 1967.]

      Decided September 19, 1968.

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

      Louis Peregoff, with whom were William S. Cooper and A. Samuel Peregoff on the brief, for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F. Moylan, Jr., State’s Attorney for Baltimore City, and Steven Harris, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Robert Lindsay Fisher, the appellant, was convicted in the Criminal Court of Baltimore of storehouse breaking, malicious destruction of property and petty larceny of a set of Maryland license plates. Fisher was sentenced to ten years under the storehouse breaking charge, one year, concurrent, under the malicious destruction of property charge, and two years, also concurrent, under the petty larceny charge. Fisher’s sole contention on appeal is that the evidence was insufficient to support the convictions.

On December 21, 1966 at approximately 10:00 P.M. Joseph Penn, the Vice-President and General Manager of Penn Brothers, Inc., an automobile agency, locked and secured the auto agency. He gave no one permission to enter the premises later that night. When the agency was opened the next morning by employees of Penn Brothers, they discovered that the premises had been broken into and vandalized. Physical damage exceeded $3,000. Merchandise exceeding $6,000, including a 1967 Plymouth Belvedere automobile, was missing.

In the early evening of December 22, 1966, Officer Mills of the Baltimore Police Department stopped a 1967 Plymouth Belvedere automobile for a traffic infraction. Fisher was the operator of the car. The officer noticed that the license plates were wired, not bolted, on. Upon discovering that Fisher did not have a driver’s license or the proper registration card, the officer made a radio check on the license tags and found that they had been issued to one Margie Hilton for a 1966 Plymouth. Fisher and Cruddup, a passenger in the 1967 Plymouth, were then placed under arrest. At the time of the arrest, Fisher and his companion gave conflicting stories as to the ownership of the car.

Petty Larceny

Margie Hilton did not testify at the trial. No evidence was produced by the state to show that the automobile tags had been stolen. We have no difficulty in finding that the trial judge was clearly erroneous under Maryland Rule 1086 when he found Fisher guilty of this charge. There was no evidence or any rational inference to support the allegation that Fisher stole the license tags, see Paesch v. State, 2 Md. App. 746, 237 A. 2d 83.

Storehouse Breaking and Malicious Destruction of Property

In order for the state to prove the charges of storehouse breaking and malicious destruction of property, it had to link Fisher to these acts by showing that the vehicle he was driving was the one stolen on the night of the crime. The sole evidence to connect Fisher with these crimes was the fact that he was operating a 1967 Plymouth with license plates issued to Margie Hilton for a 1966 Plymouth. Proof that this 1967 automobile was the one stolen was only inferentially shown by the prosecution.

When Penn testified, he failed to identify the car Fisher had been driving as the vehicle that had been stolen. He simply stated that “This is a car that was on our parking lot at the time.” This leaves to speculation how the car and the license plates came into the hands of Fisher. Penn later testified when an issue arose as to whether or not Fisher could have changed seats with his companion after the car had been stopped by the police. The following colloquy occurred:

“THE COURT: Just one question. You have heard the testimony of the officer and the defendant in this case and the question is did this automobile have bucket seats or didn’t- it ?
“MR. HARRIS: This is State’s Exhibit #2 depicting the automobile that was stolen.
“A. This is a Belvedere Sports Coup, two door hardtop. Those are the models that come with bucket seats and this is a bucket seat car.”

This Court has repeatedly held that one in possession of recently stolen merchandise can be convicted of larceny or storehouse breaking, e.g. see Bury v. State, 2 Md. App. 674, 236 A. 2d 751, Scott v. State, 2 Md. App. 705, 237 A. 2d 79. Perhaps this rule could be extended in a case such as the one at bar, to include malicious destruction of property. Nonetheless, before this rule can be applied it must be established that the accused was in possession of the identical goods which were stolen. If this is not shown the inference that one is the thief arising from the possession of recently stolen goods is not available to the prosecutor. Moreover, it is essential in the proof of larceny that the ownership of the merchandise be established. Paesch v. State, supra, Anderson v. State, 3 Md. App. 85, 237 A. 2d 813. This was not established. It is true that the conflicting statements of the accused and his companion at the time of their arrest could well indicate scienter of a crime, Hayette v. State, 199 Md. 140, 85 A. 2d 790, 792, Moore v. State, 199 Md. 676, 87 A. 2d 577, but the trier of the facts is left to speculate as to whehter it was a crime against Penn Brothers, Inc., or against someone else. This, our system of jurisprudence does not permit.

Judgments Reversed and Case Remanded for a New Trial.