author: Orth, J.,

text:
    JOSEPH LAURENCE BOSWELL and ROBERT EDWARD POE v. STATE OF MARYLAND
    [No. 138,
    September Term, 1968.]

      Decided December 30, 1968.

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

      Thomas V. Miller, Jr., for appellant Poe and Michael G. Trainer, with whom was Philip A. Cole on the brief, for appellant Boswell.

      Thomas N. Biddison, Jr., 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 E. Kenkel, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellants, jointly indicted, were jointly tried and each was found guilty of burglary and grand larceny by a jury in the Circuit Court for Prince George’s County. Each was given a 10 year concurrent sentence on each conviction. Separate appeals were filed. Each appellant presents questions relating to the following:

I The competency of trial counsel.
II The advisory nature of the instructions of the lower court to the jury as to the presumption of innocence and the burden of proof.

Poe presents a question relating to the following:

III The absence of counsel at the preliminary hearing.

Boswell presents questions relating to the following:

IV Leading questions propounded by the State.
V Hearsay testimony.
VI The instruction of the jury with respect to recent possession of stolen goods.

We shall lastly consider the questions under I relating to the competency of trial counsel.

II and VI

The Maryland Rules of Procedure clearly provide: “If a party has an objection to any portion of any instruction given, or to any omission therefrom, or to the failure to give any instructions, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge.” Rule 756f. And Rule 756g provides: “Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time.” In the instant case the instructions were given prior to the closing arguments of counsel. When the instructions were concluded the court asked the State and defense counsel: “Are there any suggestions for additional instructions or exceptions?” The State replied: “The State has none.” Defense counsel replied: “I have none.” Therefore the appellants may not assign error in the instructions as of right. But Rule 756g also provides that this Court either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused, even though objection was not made. Both appellants suggest plain error material to their rights in the lower court telling the jury that its instructions were advisory only; they claim that the presumption of innocence, the burden on the State to prove guilt and that guilt must be proved beyond a reasonable doubt are binding on the jury and cannot be disregarded by them. They urge that it was prejudicial error for the court to tell the jury that its instructions with respect to these matters were advisory only. The Constitution of Maryland, Art. XV, § 5 provides that in the trial of all criminal cases the jury shall be judges of law as well as of fact, except that the court may pass upon the sufficiency of the evidence to sustain a conviction. Md. Rule 756b states in relevant part: “The court shall in every case in which instructions are given to the jury, instruct the jury that they are the judges of the law and that the court’s instructions are advisory only.” We cannot construe the constitutional provision to mean that the jury are the judges of some of the law but not all of the law nor can we construe the mandate of the rule so as to permit the court to tell the jury that its instructions with regard to certain laws are binding on them but with regard to other laws are merely advisory. The import of the appellants’ contention is that Art. XV, § 5 of the Maryland Constitution, and, thus the rule, violates the federal constitution. In Slansky v. State, 192 Md. 94 the Court of Appeals held that the Maryland constitutional provision did not conflict with the Fourteenth Amendment to the Constitution of the United States. In Giles v. State, 229 Md. 370, appeal dismissed, 372 U. S. 767, it was held that the provision did not violate the due process and equal protection clause of the federal constitution. The Court, referring to Slansky said, at 383, “[W]e were of the opinion then, as we are now, that § 5 of Art. XV is not unconstitutional and that we are not bound, absent a decision of the Supreme Court to the contrary, to follow the rulings in other jurisdictions with respect to similar constitutional provisions in other states, even though some of the cases have held that a state may not permit juries to determine the law in criminal cases without violating the Constitution of the United States.” It pointed out that the provision has not been construed as all inclusive and limitations on its scope have been recognized. It noted, at 385 : “ [W] here full use is made of all presently available safeguards, it may be difficult, in practical operation, to distinguish between the power of a jury (under binding instructions) to render a verdict and the right of a jury (under advisory instructions) to determine the law for itself in reaching a verdict.” See also Wilson v. State, 239 Md. 245. We know of no Supreme Court decision to this date holding that a state may not permit juries to be the judges of the law in a criminal case. Brady v. Maryland, 373 U. S. 83, without questioning the constitutionality of the Maryland constitutional provision, commented that the provision did not mean precisely what it seems to say, noting, as did the Court of Appeals in Giles, the limitations added by the state statute or judicial construction. And it was said in Wyley v. Warden, 372 F. 2d 742 (4th Cir. 1967) that not only has the validity of the provision been repeatedly upheld by the Maryland courts, but the Supreme Court of the United States had occasion to consider it and failed to intimate any doubt of its constitutionality. This Court has also upheld the constitutionality of Art. XV, § 5. Reeves v. State, 3 Md. App. 195; Lewis v. State, 2 Md. App. 678; Avey v. State, 1 Md. App. 178, cert. granted and reversed for other reasons, 249 Md. 385. The appellants present no reasons sufficient to persuade us to depart from the precedent so firmly established.

Boswell contends that the lower court committed prejudicial error in the instructions “on the inference arising from recent possession of stolen goods in that the court neglected to include therein the requirement that such possession must be ‘exclusive.’ ” He suggests that we take cognizance of this in the absence of objection under Md. Rule, 1085. We think that Md. Rule 756g is the appropriate rule but we cannot say that the alleged error here was such as this Court should take notice as plain error material to the rights of the appellant. The lower court said in its instructions, “The possession of property recently stolen without giving a satisfactory account of why it is in a person’s possession, by that may be inferred either the theft of the property or that it was received knowing it to be stolen.” The general rule is that there is an inference of guilt which arises from the possession of recently stolen property. Upon proof of the corpus delicti, the inference is strong enough to establish the criminal agency of the possessor of such goods and thus to sustain the conviction. If a burglary is proved to have been recently committed, the inference is that the possessor of goods taken during its commission was the burglar, Anglin v. State, 1 Md. App. 85; if a larceny is proved to have been recently committed, the inference is that the possessor of goods taken during its commission was the thief, Frey v. State, 3 Md. App. 38; if either a burglary or larceny is proved to have been recently committed and there is credible evidence that another was the burglar or thief, the inference is that the possessor of goods taken during the commission of the crimes was a receiver of stolen goods, Boblits v. State, 4 Md. App. 534. Once the inference arises, a burden is cast upon the possessor of such goods to give a reasonable explanation of how it came into his possession. Debinski v. State, 194 Md. 355, 360. The constitutional right of a defendant not to incriminate himself and the prohibition against adverse comment and inference from his failure to testify does not protect him from the probative force of the evidence against him. If he does not attempt to rebut the incriminating fact that he was the possessor of property recently stolen, lie cannot, merely by remaining silent, escape the natural and reasonable inferences deducible from such fact. Or if he does testify but fails to testify as to how he came into possession of the stolen goods, the trier of fact may draw the adverse inference from his failure to give a reasonable explanation with respect to his possession. 1 Wharton’s Criminal Evidence, 12th Ed. Anderson, § 146, p. 277. Thus it is relevant for tb.e defendant to offer evidence of facts and circumstances showing that his possession was innocent; for example, that he found the goods, that he came into possession under an honest belief that it belonged to him; that upon discovering the mistake, he had sought out the owner and paid the value of the property or returned the property itself; that he purchased the property. In explaining the possession he may prove from whom he got them and what the parties said at the time. And it is relevant for him to offer evidence of what he said, or what explanation he gave, at the time when he was first found with the property in his possession. 1 Wharton’s Criminal Evidence, supra, § 204, p. J-13. Of course the credibility of the witnesses explaining the defendant’s possession of the goods and the weight of the evidence with respect thereto are matters for the trier of fact as in the proof of any other fact. The inference to be drawn from possession of recently stolen goods is one of fact and it does not in any case raise a presumption of law of the possessor’s guilt. See 32 Am. Jur. Larceny, § 140, p. 1052.

It appears that the Court of Appeals, in stating the rule, first used the word “exclusive” to characterize the possession of recently stolen goods in Jordan v. State, 219 Md. 36 at 46, citing People v. Galbo, 112 N. E. 1041, 1044 (N. Y. 1916). In Jordan the Court did not expound on the word “exclusive” nor did Judge Cardoza in Galbo. In Buts v. State, 221 Md. 68 it was contended that the possession was not exclusive. The Court stated the general rule and then said:

“We shall not labor the appellant’s claim that his possession was not ‘exclusive’ * * * There can be no doubt that where it is shown that the possession was personal and involved a distinct and conscious assertion of possession by the exercise of complete dominion and right of disposal by the defendant, it is ‘exclusive’ within the rule.” pp. 77-78.

In Anglin v. State, 244 Md. 652 at 656 the Court used the word “exclusive” in stating the rule but in a number of cases after Jordan there was no reference to the requirement of the exclusiveness of the possession. This Court, in stating the rule, has at times used the word “exclusive” as to the possession and at times made no reference to it. We think it clear that to support the inference the possession must be personal and with a distinct, implied, or express assertion of property by the exercise of complete dominion and right of disposal. A mere constructive possession is not enough; the accused will not be presumed to have stolen articles which he does not know he possesses. It is in the sense of a personal possession and an assertion of property, express, or implied by the exercise of dominion and right of disposal, that the possession is exclusive. So the possession of stolen property is exclusive if it shows exclusion of all persons who are not parties to the crime, although as to accomplices, the possession of one is the possession of all. See 3 Underhill’s Criminal Evidence (1957) § 900, p. 1461. Thus, the possession to be exclusive, need not necessarily be in one person and may be a joint possession of several persons. Grimes v. State, 4 Md. App. 607. The term “exclusive,” like the term “recent” is a relative one, and its meaning as applied to a given case will vary with the circumstances of the case. 1 Wharton’s Criminal Evidence1 12th Ed., Anderson, § 135, pp. 257-258.

In the instant case we think it clear that the evidence showed that Boswell had personal possession of two shotguns which were recently stolen and that the possession involved a distinct and conscious assertion by the exercise of dominion and right of disposal. There was evidence that Boswell personally presented the guns to a Homer A. Webb and sold them to him. Webb said Boswell told him he was selling them for a friend and Boswell testified that he sold them at the request of a Norman H. Harley. He said Harley went with him to sell the guns but remained outside and was not present at the actual sale. The name of the owner from whom the guns were stolen was engraved on the barrel of one of the guns. Harley was not produced at the trial; Boswell said he did not know Harley’s whereabouts at that time. Boswell claims on appeal that as he was selling the guns for a friend, he was an agent and his possession was not exclusive; since there was evidence showing that his possession was not exclusive the lower court erred in omitting the term “exclusive” in instructing the jury. But the evidence relied on by Boswell showed that he had exclusive possession; the guns were in his personal possession and he sold them. And the jury could have properly found that both Harley and Boswell had possession of the stolen property and this would not compel a finding that the possession in Boswell was not exclusive. Thus as there was evidence sufficient to show exclusive possession in Boswell, it raised the inference that he was the burglar and the thief. The evidence relied on by Boswell was not relevant to the fact of his possession or of its exclusiveness but rather was an explanation of his possession going to his innocence. The lower, court correctly instructed the jury as to the inference raised from possession of recently stolen property absent a “satisfactory” explanation. The jury was under no obligation to believe the explanation and did not believe it. In the circumstances here, even if proper objection had been made, we see no reversible error in the failure of the lower court to state that the possession required for the inference must be “exclusive.” Md. Rule 756b.

111

Rickey Searce testified that he lived near the burglarized premises. About 8:30 P.M. on the night of the burglary he saw a truck containing three men pull up to the house of Alejo Lopez. Lopez was not at home. Two of the men ran into the yard and went into the house and the third, identified by Searce as Poe, raised the hood of the truck and stayed near it. Poe sent Searce to the store for cigarettes and when Searce returned he saw the two men “taking stuff out of the house.” Thereafter the three men left in the truck with Poe driving. On cross-exami"-ition he was asked how the men got in the house and he said, “They had a screwdriver and they picked the lock. His door is all bent up.” No objection was made to this in-court identification of Poe.

Poe alleges on appeal that there was a preliminary hearing at which he was not represented by counsel. He claims that the absence of counsel at the preliminary, hearing denied him equal nrotectien of the laws as an accused represented by counsel at such a hearing is “given the marked advantage of having available important discovery opportunities as well as the testimony of State witnesses for impeachment.”. He further claims that the lower court erred in admitting any evidence of identification by Searce because he stood alone at the preliminary hearing and was confronted by Searce. He urges that the principles of United States v. Wade, 388 U. S. 218 are applicable.

Objection to the in-court identification now challenged was waived by failing to object at the time it was offered. Md. Rules, 522 d 2; 725f. The point not being tried and decided by the lower court, it is not properly before us. Md. Rules. 1085. Further, the basis of the contention now made is what Poe now says occurred at a preliminary hearing. The proceedings at the preliminary hearing, assuming it was held, do not appear in the record before us and in the lack of evidence relating thereto there is nothing for us to review. In any event, assuming arguendo, that there was a preliminary hearing, that Poe was n'dt represented by counsel thereat and that he was there confronted by Searce, there is no merit to his contentious. Similar contentions were raised in Tyler v. State, 5 Md. App. 265 and considered at length by this Court. We think that Tyler is dispositive of questions here presented. We note that the witness here was directly confronted by Poe at the time of the crime and had ample opportunity to observe his features. Considering the questions here raised on their merits, we hold that the lower court did not err in admitting the in-court identification and that the constitutional rights of Poe were not denied in the circumstances here by absence of counsel at a preliminary hearing.

IV

Rickey Searce was 10 years of age and in the fourth grade of school. No question was raised as to his competency to testify. The capacity of children to testify is within the discretion of the trial court, Reckard v. State, 2 Md. App. 312, and we see no abuse of its discretion here. From the record his testimony was clear and coherent; he had no difficulty in recounting what he had observed. Although Boswell claims that he was improperly led by the State, the questions he alleges were leading appear to be two. At the beginning of the substantive part of Searce’s testimony he was asked, “And while you were out in the front yard playing did there come a time when you saw a pickup truck drive up?,” and he replied, “Yes”. Defense counsel objected to the question as leading, saying, “I think he can ask what he saw.” The court said, “There is a little leeway on that when you are dealing with younger people * * *. I don’t believe that that necessarily suggests the answer, or would be detrimental to the defendants.” The witness thereafter described the truck as a red pickup with a cover in the back and recounted in detail what occurred with regard to the truck and its occupants. The other question specifically challenged now was, “Was it daylight or dark?” and he replied, without objection, that it was dark. Even assuming these questions were leading, the permissibility of leading questions is within the sound discretion of the trial court. We do not believe that there was such an abuse of discretion here as to prejudice the rights of Boswell to a fair trial. See Hubbard v. State, 2 Md. App. 364; Culver v. State, 1 Md. App. 406.

V

Immediately after Searce was asked whether it was daylight or dark and had said that it was dark, he was asked, “Do you recall about what time this was?” and he answered “About eight-thirty.” On cross-examination he was asked how he knew what time it was. He said his sister told him what time it was when he went in the house. “It was about five minutes ago when I went in, and that was a quarter to nine when I went in.” Boswell now claims that the testimony that it was eight-thirty was hearsay and inadmissible. This testimony was admitted without objection and there was no motion to strike it. Boswell correctly says that the time of the commission of the crime was essential to show whether the offense was burglary or a breaking in the daytime. But Searce had testified that the truck was there about 15 minutes and that it was “a quarter to nine when he went in” the house. (On cross-examination he said that the men were there “kind of long” but “not an hour”.) We think the evidence established, aside from the precise time, that it was dark when the crime occurred and was sufficient for the jury to find that the breaking and entering were in the nighttime. See Wiggins v. State, 4 Md. App. 95, note 9. We think, in any event, that the challenged evidence was harmless as cumulative.

I

The matter of the incompetency of trial counsel was not tried and decided below; therefore it is not properly before us. Md. Rule 1085. We have consistently declined to consider that question when raised for the first time on direct appeal. See Howard v. State, 3 Md. App. 173; Thomas v. State, 2 Md. App. 645; Jordan v. State, 2 Md. App. 415. We have repeatedly invoked Md. Rule 1085 because, among other reasons, counsel had no opportunity to defend himself. As we stated in Harris v. State, 2 Md. App. 408, 409, our refusal on direct appeal to determine the adequacy of trial counsel does not preclude the appellants from a determination of the matter under procedures available to them. The determination may then be made on factual findings by the lower court upon a hearing at which both the appellants and their trial counsel would be afforded full opportunity to offer evidence and be heard. We think this is the orderly and proper procedure for the fair administration of justice.

Judgements affirmed as to each appellant.

      . For a discussion of the word “recently” as used in the rule see Anglin v. State, supra, at 92-93.

      . See for example: Bell v. State, 220 Md. 75; Oden v. State, 223 Md. 244; Glaros v. State, 223 Md. 272; Booker v. State, 225 Md. 183; Lewis v. State, 225 Md. 474; Dyson v. State, 226 Md. 18; Ponder v. State, 227 Md. 570; Boggs v. State, 228 Md. 168; Stapf v. State, 230 Md. 106; Brooks v. State, 235 Md. 23; Matthews v. State, 237 Md. 384; Howard v. State, 238 Md. 623.

      . See for example: Gamble v. State, 2 Md. App. 271; Prey v. State, 3 Md. App. 38; Wilkins v. State, 4 Md. App. 334; Grimes v. State, 4 Md. App. 607; Burkett v. State, 5 Md. App. 211.

      . See for example: McGlothlin v. State, 1 Md. App. 256; Musgrove v. State, 1 Md. App. 540; Allen v. State, 2 Md. App. 298; Bury v. State, 2 Md. App. 674; Scott v. State, 2 Md. App. 705; Bever v. State, 4 Md. App. 436; Fisher v. State, 5 Md. App. 155; Jones v. State, 5 Md. App. 180; Hale v. State, 5 Md. App. 205.


source: Caselaw Access Project

license: Public Domain

text:
    MORRIS D. TURNER v. STATE OF MARYLAND
    [No. 158,
    September' Term, 1968.]

      Decided December 30, 1968.

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

      Robert W. Baker for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Peter D. Ward, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant, convicted at a court trial, in the Criminal Court of Baltimore of assault with intent to murder and sentenced to 15 years imprisonment, presents three questions on appeal from the judgment. Two of the questions relate to the guilt stage of the trial:

I “Was the appellant, under all the circumstances of his case, denied the effective representation of counsel?”
II “Does the failure of the trial judge to make a finding of sanity at the time of the offense after a written plea of insanity has been filed render the judgment void?”

The third question relates to the penalty stage of the trial:

III “Did the lower court’s refusal to consider the report of the Clifton T. Perkins State Hospital or to order a probation report on the appellant before sentencing deny him due process of law under the Fourteenth Amendment to the Federal Constitution?”

I

COMPETENCY OF COUNSEL

The issue of the competency of trial counsel was not tried and decided below and thus is not properly before us. Md. Rule, 1085. We have repeatedly invoked this rule because, among other reasons, counsel has had no opportunity to defend himself, Jordan v. State, 2 Md. App. 415, and because an appellant is not precluded from raising the point in other proceedings available to him, Harris v. State, 2 Md. App. 408. We are not persuaded from the record here or from the appellant’s contentions with regard to the issue to entertain it now. Although it is, perhaps, possible that ineptness of counsel would be so apparent from the face of the record we could determine on an appeal that an appellant had been denied due process of law, such inadequacy is not apparent on this record. Thomas v. State, 2 Md. App. 645.

II

THE VERDICT

Prior to trial the appellant filed a written plea of “not guilty,” “not guilty by reason of insanity at the time of the offenses,” and “not guilty by reason of insanity now,” and he went on trial under those pleas. At the time of trial and preliminarily thereto the State offered and there was received in evidence a copy of a letter addressed to the court from the Superintendent of Clifton T. Perkins State Hospital reporting the results of “a comprehensive psychiatric evaluation with psychological testing, social service investigation, electroencephalography, and other pertinent clinical as well as laboratory studies” made of the appellant pursuant to an order of the court. It stated that it was the unanimous opinion of the medical staff that the appellant was “currently able to understand the nature and object of the proceedings against him and to assist in his own defense” and that “at the time of the alleged offenses (he) did not have a mental disease or defect which would have caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” On the insanity issues the appellant submitted on this evidence. The court found that the appellant “does have the capacity to be tried at this time.” It reserved “further finding until the end of the case.” The docket entries read as to the verdict: “Guilty 1st count (sane then and now)”; but the transcript of the proceedings does not disclose that the court made a specific finding in rendering its verdict at the close of the evidence and after hearing from counsel, as to the appellant’s sanity at the time of the commission of the offense, the. verdict merely being that the appellant was guilty of assault with intent to murder. The appellant contends that the failure of the lower court to make a finding that he was sane at the time of the commission of the offense voids the judgment of conviction and sentence.

: In Price v. State, 159 Md. 491 (1930), by a four to three decision, the Court of Appeals reversed a judgment on a conviction of murder in the first degree, holding that where a defense of insanity was raised the jury should have rendered a separate verdict on the issue of insanity, by a proper construction of the statute then in effect, Md. Code, (1924), Art. 59, § 6. This statute had been in effect for more than a century with a consistent practice contrary to the holding of the majority. Berman v. Warden, 232 Md. 642, 646. Shortly thereafter, in 1931, the General Assembly amended the section to require a preliminary hearing on insanity and by Ch. 81, Acts of the Special Session of 1933, reinstated the former practice. Codified as Art. 59; § 7 the Act provided, among other things, that if a' verdict does not contain a finding on insanity, a finding of sanity is conclusively presumed from the verdict of guilty of the crime charged. In Berman v. Warden, supra, Berman, who had been convicted in 1928, raised under post conviction procedures the same issue which had been raised in Price and relied on that opinion. Denying the application for leave to appeal the Court assumed but did not decide that the statute, construed in Price and applicable at the time of Berman’s conviction, required a separate verdict on the issue of insanity and that the failure to render such a verdict was not cured by a general verdict of guilty in which a finding of sanity would seem to be implicit. It held, however, that the failure to render such a verdict was “[a]t most * * * a technical error in procedure which did not nullify the judgment of a court of general jurisdiction having complete jurisdiction of the person and subject matter, or render it subject to collateral attack.” It said, at ’646:

“We are not aware of any decision of the Supreme Court of the United States, .or of any federal court, holding that the rendition.of a general verdict or the entry of a judgment under such circumstances is a violation of due process.”

It expressly overruled the holding in Price that the error was jurisdictional. Chapter 709, Acts of 1967, repealed former §§ 7-12 of Art. 59 and enacted new §§ 7-12 in lieu thereof. The Act, applicable to all cases tried on and after 1 June 1967, established new tests for competency to stand trial and of responsibility for criminal conduct, replacing the tests followed in Maryland theretofore. See Bergin v. State, 1 Md. App. 74; League v. State, 1 Md. App. 681. New § 9(b) requires, when it is desired to interpose a defense of insanity, that there be filed a plea in writing in addition to the plea or pleas otherwise required or permitted by law, alleging that the defendant was insane at the time of the commission of the alleged crime. It also provides: “At the trial of any case where there has been theretofore filed a plea of insanity at the time of the commission of the crime, the court shall direct the jury to render a special verdict on the sanity of the defendant at the time of the alleged crime.” And it provides a sanction for the failure to file the plea as required: “No such verdict as to insanity of the defendant at the time of the alleged crime shall be directed or accepted unless a plea in writing alleging that the defendant was insane at the time of the commission of the alleged crime shall have been filed by the defendant or his counsel.” Thus the provisions with respect to the special verdict and the sanction for failure to file the required plea apply only to jury trials and there is no provision for such a special verdict nor is there a sanction stated for failure to file the required plea in a court trial, although we think it clear that the requirement that the defense of insanity be interposed by a plea in writing is applicable to both jury trials and court trials. See Strawderman v. State, supra, p. 695, note 6. In Strawderman, at 697-698, we enunciated the rule to be followed under Chapter 709. We held that when the required plea had been filed, “The court should determine preliminarily whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men. If it finds that it is not, the State has no further burden with respect thereto and in a jury trial, the question is not submitted to the jury.” So whether the trier of fact be the court or a jury, if the court determines that the proof adduced was not sufficient to raise the requisite doubt, the issue does not go to the trier of fact, and no special verdict is rendered. Since a person is presumed to have been responsible for criminal conduct and sane at the time of such conduct, it is only upon the determination of the court on preliminary hearing, the issue of sanity having been raised, that the proof was sufficient “to surmount the threshold question of doubt of the accused’s responsibility” that the State has the burden of convincing the trier of fact that the accused was sane. It is in that event that evidence on the issue should be introduced before the trier of fact, and, in a jury case, that the statute, as we have interpreted it, provides that the court shall direct the jury to render a special verdict. And we think it the better practice, even though the statute does not so expressly provide, that when the issue is before the court as the trier of fact, that the court render such a special verdict.

With that background we turn to the instant case. As the trial was held on 4 April 1968, the provisions of Art. 59, new §§ 7-12 were applicable. The appellant had filed a plea in writing interposing the defense of insanity as required. But at the hearing on the issue prior to trial the only evidence before the court was the unanimous opinion of the medical staff of Clifton T. Perkins State Hospital that the appellant was sane, reached after a thorough examination of him. There being no scintilla of proof that the appellant was insane, the court should have then determined that the evidence was insufficient to raise the requisite doubt and found that the appellant was sane at the time of the commission of the alleged offense. But the court reserved its finding, and neglected to make a finding on the issue when it rendered the verdict of guilty. However, in the circumstances we find no error requiring reversal. We think it apparent that the sanity issue was never before the court as the trier of fact and was not considered so to be by the court, the State or the defense; no evidence on the issue was proffered or received at the trial on the merits. The court simply reserved its finding, which more properly should have been made preliminarily, and failed to make it thereafter. Although the reservation of the finding was not conducive to orderly procedure and we cannot justify the failure to make the finding ultimately, we see no prejudice to the accused and he showed no actual prejudice. We feel that a finding of sanity was implicit in the general verdict of guilty and note that on the evidence before it the court could not have properly found other than that the appellant was sane. But even assuming, arguendo, that the verdict of guilty did not cure the failure to make the finding, we believe it was, at most, a technical error in procedure which did not nullify the judgment and that it was not a jurisdictional error. We are not aware of a Supreme Court decision holding that the rendition of a general verdict or the entry of a judgment under such circumstances violates any constitutional right, there is no statute in this State compelling a holding to the contrary and we think the ruling in Berman v. Warden, supra, apposite at least by analogy, supports our view.

We note that there was no objection below to the reservation by the court of its finding on the issue of sanity. Nor was the failure to make the finding raised and thus was not tried and decided by the lower court. Therefore, having found that the error was not jurisdictional, the question is not properly before us. Md. Rule 1085. We have considered it ex mero mo tu, however, as desirable for the guidance of the lower court.

The matter before us as we have considered it, did not encompass questions arising from a failure to render a special verdict on the sanity of a defendant in a court trial or a jury trial when the issue of sanity was before the trier of fact after a preliminary determination by the trial court that there had been offered proof of insanity sufficient to overcome the initial presumption of sanity of the accused. We shall consider such questions, within the purview of new §§ 7-12 of Art. 59, if and when they are squarely before us.

Ill

THE SENTENCING PROCEDURE

The appellant contends that he was denied due process of law because, in imposing sentence:

(1) The lower court refused to consider relevant portions of the report of the examination and evaluation of him by the medical staff of Clifton T. Perkins State Hospital; and
(2) The lower court refused to order a presentence investigation.

(1)

Md. Rule 761a provides in relevant part: “Before imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment.” The appellant claims that he was denied the opportunity to present evidence in mitigation of punishment because the court refused to consider the Clifton T. Perkins report, received in evidence on the -preliminary issues of competency to stand trial and responsibility for criminal conduct, in imposing punishment. We think the contention is based on an incorrect premise. At the close of all the' evidence the appellant’s counsel made his argument to the court. He referred to the subject report and specifically to that portion “which deals with the stress Mr. Turner was under as a result of the marital problems which grew out of his marriage to Mrs. Turner.” He developed the appellant’s background and urged that the shooting resulting in the charge against the appellant “arose out of * * * jealousy, whether it was legitimate or insane jealousy of a man who has a rigid set of values, perhaps too rigid set of values. Instead of talking it out with someone he allowed these doubts and worries as to his wife’s fidelity to bore within him and they- exploded in November on DeSota Road. I hope Your Honor will take this into consideration.” The court said it could not take it into consideration as there was no' evidence to support it. Counsel said, “You have the report,” and the court replied, “That is hearsay under the grossest type, and self-serving * * * I don’t have a scintilla of evidence to support the allegation in the third paragraph of the report regarding the alleged jiromiscuity of the wife.” Counsel then requested probation without verdict as the appellant had no criminal record. He urged that if the appellant was given the opportunity he would go back to Virginia and his job and be able to support his family of four children. Counsel asked for a “probation report” but the court reminded him that it had not made a finding yet. It then rendered the verdict. We think it obvious that the court refused to consider the report on the question of the appellant’s criminal agency, not on the question of punishment. The guilt stage of the trial had not been concluded and the court’s remarks that the report could not be considered related to the matter of guilt or innocence and were entirely correct. The report had not been offered in the trial on the merits, was not relevant or material to the question of guilt and there was no other evidence before the court with respect to the matters urged in argument. As presented there was no denial of due process by the refusal of the court to consider the report.

(2)

The court may order a presentence investigation before imposing sentence, but it is not obliged to do so, it being a matter entirely within its province. Md. Rule 761c. The general principle is that, if the sentence is within the limits prescribed by law, it ordinarily may not be reviewed on appeal. Gleaton v. State, 235 Md. 271. However, an allegation that the procedure in the determination of the sentence violated the constitutional right to due process, if supported, is reviewable on appeal as an exception to the general principle. Costello v. State, 237 Md. 464, 469. See Williams v. New York, 337 U. S. 241 (1949). The allegation that the procedure in the determination of the sentence here violated the constitutional right to due process is not supported by the reason advanced by the appellant. We find no error in the refusal of the court to order a presentence investigation.

Judgment affirmed.

      . No issue is raised in the instant case with regard to the competency of the appellant to stand trial. In Strawderman v. State, 4 Md. App. 689 at 695, we said that this issue is not raised by a plea and its determination is a matter resting exclusively in the court, not being for the determination of a jury. Here the issue was raised by a plea in the form usually used under old § 7 but the procedure followed by the court was proper and the evidence before it was sufficient under the new test for it to be convinced beyond a reasonable doubt that the appellant was competent to stand trial.

      . If the presentence investigation is ordered, inspection of the report by counsel is a matter of the sound exercise of the court’s discretion. Md. Rule, 761d; Costello v. State, infra. But any information which might influence the judgment of the sentencing judge, not received from the defendant himself or given in his presence, should be called to the defendant’s attention or to the attention of his counsel, without necessarily disclosing the sources of such information, so that the defendant may be afforded an opportunity to refute or discredit it. Driver v. State, 201 Md. 25; Jordan v. State, 5 Md. App. 520.

      . The appellant filed an application for review of sentence. By order of the Review Panel a change in the sentence was denied.


author: Thompson, J.,

text:
    DAVID LEROY LAMAR v. STATE OF MARYLAND
    [No. 66,
    September Term, 1968.]

      Decided January 14, 1969.

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

      Vernon G. Frame for appellant.

      H. Fdgat Lentz, Assistanti 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.

David Leroy Lamar, the appellant, was convicted of assault with intent to rape and assault in a jury trial before Judge Matthew S. Evans of the Circuit Court for Anne Arundel County. Lamar was sentenced to sixteen years.

There was evidence from which the jury could have found the following:

At about 1:30 on the morning of April 26, 1967 Carol Ann Cochran, the victim, left Patton’s Luncheon in Odenton, Anne Arundel County, with her friend, Robert Holland. They had been out that evening with Carol’s friends, Kathy North, Evelyn Roberts and Sharon Lee (Linda) Malone. The three girls, who were roommates, were accompanied by two soldiers. Carol Ann and Robert Holland went to her apartment. While at her apartment a misunderstanding arose and Robert left soon thereafter. Meanwhile the other three girls and their male companions had gone to the girls’ apartment which was about a block from Carol Ann’s.

At about 3:00 in the morning Carol Ann, upset and unable to sleep because of the argument, got dressed and walked the block to her friends’ apartment. She wanted to talk to Linda; however, when she arrived Kathy North, who answered the door, told Carol Ann that Linda was asleep. Carol Ann then left. She testified that on her way home, she met Lamar, the appellant, in Patton’s parking lot. She knew him because he had been a customer in the tavern where she worked, and she had also observed him prowling around her apartment a few days before. As Carol Ann approached Lamar, he stated that he wished to talk to her about the trouble he had recently at her place of employment. She went by him and continued walking, and when she turned around she .realized that he was following her and she began running. Carol Ann testified that she knew she would not be able to get into her locked apartment fast enough, so, seeing the lights at nearby Meade Heights, she ran toward these hoping for safety. After running a short distance she stopped, thinking Lamar had discontinued his chase, when in fact he was approximately 10 feet behind her. She screamed and started running again, but he caught up with her and knocked her to the ground. He hit her several times, put his hand over her mouth and stated that he wanted a “relationship.” He pulled her slacks and underwear down around her ankles and her blouse and bra up around her neck. She was observed in this condition by a police officer and the three girlfriends, all of whom responded to her screams. The victim was beaten so severely that she lost two weeks from work.

Linda, although half asleep, overheard Carol Ann ask for her; so she decided to dress and go over to Carol Ann’s apartment at once. When she emerged from her apartment building she saw Carol Ann and called to her, but apparently she was not heard. Linda then began to run in order to catch up with Carol Ann; however, she lost sight of her when she ran down to the parking lot of Patton’s Luncheon. She returned to her apartment and enlisted the aid of her friends stating that she had heard Carol Ann scream and had seen “Dave” chasing her. (Linda knew Lamar in the same capacity as the prosecutrix and knew him by the name of “Dave”). The three girls and the two soldiers began looking for Carol Ann. In a well lighted field adjoining the parking lot Kathy found footprints which she followed until Lamar emerged from the bushes. She called out his name “Dave.” He stopped and turned around, but then began running again.

Carol Ann, Kathy and Linda áll identified Lamar at a lineup. The lineup was conducted twice and they identified him both times. Kathy and Linda identified Lamar in court as the man they saw leaving the bushes in the vicinity of the prosecutrix, and Carol Ann identified him as the man who assaulted her.

Lamar contends the lower court coinmitted error by failing to cure the prejudicial effect of an'improper question proposed by the State’s Attorney. The alleged error occurred when Lieutenant Gerald Lee Kenney, a lieutenant in the army stationed at Fort Meade, Maryland, was called as a witness for the defendant. On cross-examination the following occurred :

“Lieutenant Kenney, you have in your possession official records of the defendant, David Leroy Lamar? “Yes, I do.
“And these are records kept by the United States Army in the regular course of business as to this individual ?
“Yes, they are.
“And does that record also contain any record or information as to prior criminal convictions as to this individual ?
“MR. CARMODY: I object. 1 object. The defendant’s character is not at issue at this point. I beg the Court to admonish the State’s Attorney and instruct the Jury as to the impropriety of this question.
“COURT: Would you two approach the Bench, please ?
“MR. TOUHEY: The State will withdraw the question. Thank you, Lieutenant, no further questions.”

The requested instruction was not given.

It has been a long established rule in Maryland that the accused’s character cannot be attacked by the State by showing prior convictions until the accused has testified. Cook v. State, 225 Md. 603, 171 A. 2d 460. See Woodell v. State, 2 Md. App. 433, 437-38, 234 A. 2d 890. Lamar cites numerous cases standing for the proposition that such an attack would be reversible error. Gallman v. State, 195 So. 768 (Ala. 1940), Gonzales v. State, 97 So. 2d 127 (Fla. 1957), Pilcher v. State, 85 S.E.2d 618 (Ga. 1955), People v. Kingcannon, 114 N. E. 508 (Ill. 1916), People v. Faught, 175 N. E. 446 (Ill. 1931), State v. Dixon, 253 S. W. 746 (Mo. 1923) and State v. Jones, 268 S. W. 83 (Mo. 1924). We note, however, that in all of these cases there were also other reasons for the reversals.

1 Wharton Criminal Evidence § 232 at 497 (12th Edition) states the law as follows:

“When the proof of the commission of another crime is not proper, it is likewise improper for the prosecution to state or insinuate that such crime has been committed, whether in the examination of witnesses or in the address to the jury. A conviction may be set aside for violation of this rule.”

See, however, the 1968 supplement to Vol. 1 at 107 as follows :

“The improper admission of proof of other crimes does not always constitute reversible error and convictions may be sustained when the nature of the other crimes is so minor that it is unlikely that the defendant was prejudiced, or the evidence of guilt so strong that it is improbable that a contrary result would be reached.” (Footnotes omitted)

Chapman v. California, 386 U. S. 18, 23, 87 S. Ct. 824, 827, 17 L.Ed.2d 705 defined a harmless error as one which would have “little if any likelihood of having changed the result of the trial.” We have followed that principle in our cases dealing in harmless error. Since evidence of guilt in this case is so overwhelming we have no difficulty in holding that one unanswered question concerning Lamar’s criminal record did not, in any way, change the result of the trial.

Judgments affirmed.

      . Lamar did not testify at the trial.

      . Lewis v. State, 2 Md. App. 318, 234 A. 2d 487, Grice v. State, 2 Md. App. 482, 233 A. 2d 316, Sparkman v. State, 3 Md. App. 527, 240 A. 2d 328, Gunn v. State, 4 Md. App. 379, 243 A. 2d 15, Brown v. State, 4 Md. App. 612, 244 A. 2d 444, Jones v. State, 4 Md. App. 616, 244 A. 2d 459.


text:
    JAMES CURTIS HALL v. STATE OF MARYLAND
    [No. 84,
    September Term, 1968.]

      Decided January 14, 1969.

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

      Allan C. Westcott for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Jidian B. Stevens, Jr., State’s Attorney for Anne Arundel County, and Raymond G. Thieme, Jr., Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

'James Curtis Hall, the appellant, was convicted of sodomy by the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding without a jury. The sentence imposed was two years consecutive to the sentence which Hall was then serving. The questions presented on appeal concern the admissibility of certain evidence and the sufficiency of the evidence to support the verdict.

The testimony can be summarized as follows :

James Stuart Aberts, age 23, testified that while he w^as incarcerated at the Maryland House of Correction on January 28, 1967, a riot broke out in the institution at or about the hour of 4:30 to 5 :00 p.m. Some of the prisoners seized keys from the guards and unlocked the cell doors of the remaining prisoners. Aberts testified that after his cell door was opened he walked out on the tier and when he was passing cell No. 4, which adjoined his own, four persons, of whom Hall, the appellant, was not one, attacked him and knocked him unconscious. When he became conscious he was lying on his stomach on a bed in cell No. 4 with a man, in a supine position, engaged in a sexual assault upon him. While the act continued one of the other persons present yelled “Who is on him now” when another unknown person stated that “Billy Hall” was on the victim. (The record shows that Billy Hall was the nickname commonly used for the appellant). Whereupon the person on his back yelled to the others to quit hollering his name out and told the victim that he had better forget his name. Aberts further testified when he heard Hall’s voice he recognized it because he had had an argument with him on two separate days some two weeks prior thereto saying “He’s got a way of talking, the way they put a lot of drive in their tongue, it is just familiar, I knew it. I’d argued with him before and I knew that was his voice.” He further testified that the lights were out and it was too dark for him to identify Hall except by his voice.

Ronald Kurz, a correctional officer at the Maryland House of Correction, about 24 hours after the riot, went to the medical observation area of the House of Correction where Hall was being held for medical examination and informed Hall that someone was there to see him and requested that he put on his clothes. He accompanied Hall to a room where several bundles of clothes of persons who were undergoing medical examination were in neat piles around the room. Hall looked over the piles of clothing until he found what was obviously his and put on undershorts, trousers and shoes. After the officer observed that the shoes fitted, he told Hall that he could stop getting dressed because the man who wanted to see him was already there. Sergeant Snyder of the Maryland State Police, who was standing at the door, then asked Hall about the stains on the clothing which were located on front of the trousers and around the fly area of the undershorts. Hall was directed to undress and Sergeant Snyder took the clothes. On cross-examination Kurz stated that the undershorts showed they were size 34, that the belt was size 32, and the trousers measured at the trial were 30J4 inches around the waist. He further testified that the clothing Hall put on fitted him as well as any other inmate’s clothes at the institution. Sergeant Snyder confirmed the testimony of Correctional Officer Kurz and stated that when he asked Hall about the obvious blood stains on the front of the trousers that Hall responded that a lot of people had gotten blood on their trousers during the riot. An examination of the trousers at the laboratories of the Federal Bureau of Investigation showed that blood stains were on the trousers but not on the shorts, and that seminal stains were on both the trousers and the undershorts.

John L. Beard, who at the same trial was convicted of assault in connection with a sodomy attack not directly connected with the present appeal testified for the defense that he was Hall’s cellmate and that Hall had stayed in his own cell throughout the riot, and further that he, Beard, had spent much of the time directly in front of their cell talking with Robert Earl Paesch.

Hall testified in his own defense and stated that he spent the entire time of the disturbance in his cell with Beard; that he saw Robert Earl Paesch during the riot. He stated that he had argued with Aberts some two weeks before on two separate days and on the second occasion concluded by saying “Well, we talked and wound up shaking hands and I left, and that was all in December, that was the last him and I had any words or any kind of relationship.” He stated that the clothes which he wore to the medical observation area were the same clothes that he had worn during the riot, but that the clothes introduced into evidence were not his except for the belt. Hall testified that he wore size 30 undershorts, and that he remade all of his trousers in the tailor shop so that they fitted him better than otherwise they would have. Hall stated that at the time he was called upon to dress in the area he put on only pants; that he did not put on shoes or undershorts; that he had not seen any of the clothes, except for the belt, that he wore to the medical room; and that the first time he had seen the belt was the day of the trial. In rebuttal the State called Robert Earl Paesch who denied that he had seen Hall at any time during the riot.

Hall contends on appeal that the court committed error in admitting the clothing into evidence because it was not sufficiently connected with him. He argues that its connection is questionable because it might have been mixed up with clothing of other prisoners which was also in the room at the time he was called upon to dress. This contention causes us little concern. All that is required to connect an exhibit to an accused is reasonable probability. Veihmeyer v. State, 3 Md. App. 702, 240 A. 2d 649. Hall was directed to put on his clothes, and after looking over the piles of clothes he put on those admitted into evidence. The shoes fitted him and the other clothes fitted him as well as the clothes of other inmates fitted them.

Hall further contends that it was error for the trial court to admit the “hearsay” testimony concerning the conversation between unidentified persons and the criminal while the crime was in progress. Hall complains specifically of the conversation between the unidentified persons rather than the words of the criminal, but we fail to see how the words of the criminal would be at all intelligible unless the words of the bystanders were also admitted.

The Court of Appeals in the case of Robinson v. State, 57 Md. 14 gave an excellent discussion of what evidence constitutes res gestae. On a charge of forcibly abducting four children of one James McGee, the accused proffered a witness who stated that when the accused and Mrs. McGee came to her house to spend the night she told the witness, out of the presence of the accused, that she had made up her mind not to live with her husband any longer and had left home and taken the children with her and had gotten the accused to drive the wagon. The Court reversed because of the refusal of the trial court to admit that testimony and quoted with approval 1 Taylor on Evidence § 521 as follows:

“ ‘Certain other declarations and acts are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation.
“ ‘ The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in its turn becomes the prolific parent of others, and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to he known, in order to a right understanding of its nature. These surrounding circumstances may always be shown to the jury along with the principal fact, provided they constitute parts of what are termed the res gestae, and whether they do so or not must in each particular case be determined by the judge in the exercise of his sound discretion, according to the degree of relationship which they bear to that fact;’ and then after giving cases in which such proof was admitted, the author goes on to say: 'So also where a person enters upon land in order to take advantage of a forfeiture to foreclose a mortgage, to defeat a disseisin or the like; or changes his actual residence or domicile, or is upon a journey or leaves his home, or returns thither, or remains abroad, or secretes himself, or in fine does any other act material to be understood; his declarations made at the time of the transaction, and expressive of its character, motive or object are regarded as “verbal facts,” indicating a present purpose and intention, and are therefore admitted in proof like any other material facts.’ ”

Professor Wigmore in 6 Wigmore Evidence § 1791 says that utterances serving to identify are admissible as every other circumstance of identification would be under his rule that verbal acts are admissible because the hearsay rule is not applicable. 6 Wigmore, Evidence § 1745.

In 1 Wharton Criminal Evidence § 279 (12th Edition) the strict rule is as follows :

“When strictly defined, res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.”

At page 627 he cites Cohen v. State, 173 Md. 216, 195 A. 532, cert. denied, 303 U. S. 660, 58 S. Ct. 764, 82 L. Ed. 1119 as authority for the proposition that Maryland follows the broadest possible rule as to what constitutes res gestae. Perhaps the rule is formulated most clearly by Professor McCormick in McCormick Evidence (1954) § 274 at 586:

“If there is any common element or concept present in all these variegated uses of the term res gestae it .is a very rudimentary one, namely the notion that evidence of a concededly relevant act or condition may bring in likewise the words which accompanied it.
This represents a broadening of the original employment of the term which denoted words accompanying the principal litigated fact, such as the murder, collision or trespass, which is the subject of the action.
This older meaning is still often reverted to, and serves to narrow the usefulness of the doctrine without perceptible gain. The .general notion of words accompanying an act or situation involves also some requirement of concurrence, or close relationship, in time between the words and the act or situation. Here again the narrowness or liberality in the application of this requirement is a measure of the scope of the usefulness of res gestae in the particular jurisdiction.
“Perhaps we may discern two main policies or motives in the recognition of res gestae as a password to the admission of evidence. Surely one is a desire to permit the witness to tell his story in a natural way by telling all that happened at the time of the narrated incident including those details which give life and color to the story. Truth is a seamless web and the naturalness with which the details fit each other gives confirmation to the whole account. The other policy, most emphasized in the last generation under the leadership of Wigmore, is the recognition of spontaneity as the source of special trustworthiness. This quality of spontaneity characterizes in greater or less degree nearly all the types of declarations which have been labeled res gestae.”

See: 2 Jones on Evidence § 319 at 598 (5th Edition) wherein it states:

“The commonest instance of the admission of evidence under the res gestae doctrine is that of the introduction of declaration by a party to the transaction in suit, uttered at the time of the occurrence, and tending to explain the facts thereof.
“On the same principle, evidence is received to show complaints and statements of an injured person, made at the time of the harmful occurrence, both as to bodily suffering and the circumstances of the occurrence.
The facts and circumstances surrounding the occurrence in issue may also, it has been held, be admissible as a part of the res gestae. Of course the rule applies equally to declarations of persons who were not actual participants in the event but who were observers thereof.”

In a civil case in McBriety v. Phillips, 180 Md. 569, 26 A. 2d 400, 404 the Court of Appeals in discussing res gestae said:

“Under the rule of res gestae, conversations of parties in the course of a transaction are admissible when the words are spontaneous and so closely related to the principal transaction as to explain its character. 1 Jones on Evidence, §358; 6 Wigmore on Evidence, §1776; 20 Am. Jur., Evidence, §§ 662, 680. Such utterances, irrespective of their trustworthiness as assertions, are received as verbal parts of the entire act.
In upholding this rule Justice Swajme said: Tn the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. * * * The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results.’ Travellers' Insurance Co. v. Mosley, 8 Wall. 397, 408, 19 L. Ed. 437, 441.”

In Alexander v. State, 198 Md. 395, 84 A. 2d 98, the Court of Appeals considered this specific problem when during the time of a gambling raid various unknown persons called and asked to speak to “Melvin” or “Melvin Alexander,” the appellant. The Court had held that such evidence was admissible as part of the res gestae and that it was unnecessary to identify the callers in order to make the evidence admissible as to identity.

Hall further contends that the evidence would have been inadmissible because of a lack of foundation showing that the anonymous persons had had an opportunity to observe the fact that Hall had been the participant in the crime at the moment. He cites 3 Wigmore § 1445 at 177 (2nd Edition), 1 Wharton Criminal Evidence § 310 at 723-24 (12th Edition), Commonwealth v. Noble, 371 Pa. 138, 88 A. 760, Commonwealth v. Fergmon, 330 Pa. 4, 198 A. 99, Pillard v. Chesapeake S. S. Co. of Baltimore, 124 Md. 468, 474, 92 A. 1040, but we do not think those authorities are controlling in the present situation. Although the evidence showed that it was too dark for Hall to be recognized at the time the act was being committed the record shows clearly that those involved in the conversations were all in a conspiracy to commit the crime upon the body of Aberts, and we think it reasonable that they would know who was with them and some would know who was actually performing the sodomy at the time of the conversation, regardless of the conditions as to visibility.

To further support the argument, Hall cites our case of Howard v. State, 4 Md. App. 74, 241 A. 2d 192 where we held that an out-of-court lineup identification was not admissible unless the witness making the identification was available and in court to testify and to be cross-examined concerning it; but that case is not relevant where the identification evidence is a part of the res gestae. We are concerned, here, with what was said at the time the crime was actually being committed and not what was said after the stress of the crime had ceased as in Hotvard, supra.

Although the facts were somewhat different in Reckard v. State, 2 Md. App. 312, 234 A. 2d 630, Lynch v. State, 2 Md. App. 546, 236 A. 2d 45 and in Van v. State, 1 Md. App. 347, 230 A. 2d 109 we reviewed the law of res gestae and held that generally all that is said and done during the commission of a crime is admissible as evidence. In fact, it is difficult to imagine anything occurring or being said while crime is in actual progress that would not be admissible under the res gestae principle, although'it impossible that we would so. hold under a peculiar set of facts.

Finally Hall contends that the evidence is not sufficient to support his conviction alleging, in oral argument, that the opportunity for a frameup under prison conditions is great. In the case of Gillian v. State, 3 Tex. App. 132 (1877) there was a jailbreak and one of the prisoners testified as follows:

“T saw the parties who broke it (the jail) open; they had been after me some time to assist them in breaking the jail; some of the parties were in town early in the night the jail was broken; I saw them on the streets; they told me they were waiting for William Gillian, the defendant. Some of the parties told me to go on the prairie, by Dr. Houston’s field, and I would meet the crowd there; they said I would find the defendant, William Gillian, there. I was well acquainted with John Gillian, a brother of the defendant; he was one of the crowd that broke open the jail, and he told me that Billy Gillian would be there. I went back of Dr. Houston’s field, as I was directed, and when I got there I found no one. After waiting two or three hours the crowd came. I was not acquainted with the defendant, but there was a man in the crowd that was called William Gillian. * * * I helped break the door (of the jail) open myself. I cannot say, upon my oath, that William Gillian was there. * * * It'was dark; there was a man present that the crowd called William Gillian.’ ”

The Court held that, while such evidence was admissible and not objectionable as hearsay, it, alone, was insufficient to identify the accused as the criminal, saying:

“It is of too common occurrence for men to assume names — and especially so when about to engage in improper or illegal conduct — and it it too often happens that conspirators, during the accomplishment of their plans, call their confederates purposely by names other than those to which they are entitled, for us to sanetion, as a precedent, that such declarations are of a satisfactory and conclusive character. Proof of identity, to warrant a conviction, should stand upon a surer and more certain basis.
“The evidence, as is said above, is permissible as a fact or circumstance connected with the transaction, to be weighed like any other fact or circumstance in the case, in the determining from the whole evidence whether the identity is proven.”

If the only evidence of Hall’s participation in the crime were the fact that his name was called out by one of the criminals we would follow Gillian v. State, supra, and hold that there was insufficient evidence to support the conviction; but here there was enough other evidence that we cannot say that the trial judge was clearly erroneous within the meaning of Maryland Rule 1086 when he found Hall guilty of sodomy. The trial judge specifically found that the clothes, with blood and seminal stains thereon, had been worn by Hall on the night of the riot. The victim identified Hall’s voice saying that it was peculiar in that he “put a lot of drive” in his tongue. We have held that voice identification, coupled with other circumstances, is sufficient to support a conviction, Nichols v. State, 5 Md. App. 340. We think there are sufficient, if minimal, other circumstances here to support the verdict.

Judgment affirmed.

      . For a full discussion of our responsibility in reviewing sufficiency of the evidence see Williams v. State, 5 Md. App. 450.


author: Murphy, C.J.,

text:
    GEORGE SANTONI v. STATE OF MARYLAND
    [No. 102,
    September Term, 1968.]

      Decided January 15, 1969.

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

      Prank B. Calm, II, for appellant.

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

delivered the opinion of the Court.

Appellant Santoni was charged in a two-count indictment in the Criminal Court of Baltimore with (1) larceny of $7,580.00, the money of Charles Grogan, and (2) with obtaining said money from Grogan by a false pretense. He was tried by the court sitting without a jury, found not guilty of false pretenses but guilty of grand larceny. Upon this verdict, the court sentenced the appellant to two years imprisonment under the jurisdiction of the Department of Correction. The sentence was suspended upon condition of “good behavior” and a fine of $1,000.00 was imposed. On this appeal, Santoni contends (a) that the evidence was insufficient to support the larceny conviction, and (b) that the lower court committed prejudicial error by restricting the scope of his cross-examination of the prosecuting witness.

The pertinent facts disclosed by the record are these: By an agreement written in longhand dated August 2, 1965, Joseph Wallsachs agreed to purchase the business known as the Surf Club, Inc. from Erank Stancliffe, individually, and T/A Central Auto Service and Surf Club, Inc. It was specified in the agreement that the purchase price was to be $30,000.00, of which $3,000.00 was to be paid in cash at the time of signing the agreement, with the balance of $27,000.00 being payable “at settlement,” $17,000.00 in cash, and a $10,000.00 note payable five years after date, without interest. The agreement further specified that the buyer would lease the premises on which the business was being conducted for five years at a rental of $6,000.00 annually, with certain options to renew the lease and purchase the premises, and an option to require the seller to transfer all stock “held by him and others” back to the corporation. In an addendum to the agreement dated August 2, 1965, the buyer was given the right to possession of the premises upon twenty-four hours notice to the seller, with the proviso that he first purchase the liquor inventory at -wholesale prices. The entire transaction was made expressly contingent upon the successful transfer of the liquor license, and settlement was to be held five days after the transfer of the license was approved by the appropriate authorities.

The negotiations were conducted and the agreement prepared and concluded at an establishment known as the Ravens Nest in Baltimore, this apparently being the appellant Santoni’s place of business. In addition to the buyer’s and seller’s presence, Roy Graner, the manager of the Surf Club, was also present, as well as Wallsachs’s attorney Erwin Frenkil, John DiTomasso, Erwin Kardin, Santoni, and Charles Grogan, the latter being the prosecuting witness. Graner signed the agreement witnessing Stancliffe’s signature; Grogan signed the agreement witnessing Wallsachs’s signature. The written agreement, including the addendum thereto, was offered and received in evidence.

Stancliffe testified that he received the $3,000.00 down payment from Wallsachs when the agreement was signed and that as Wallsachs began operating the business on August 2, 1965, he was also paid $2,000.00 for the liquor inventory and $400.00 to replace cash in the cash register.

Stancliffe testified further that at the time of the signing of the agreement on August 2, 1965, Graner, the manager of the Surf Club, held an option to purchase the business, and that appellant Santoni, DiTomasso, and Kardin, had previously offered Graner $5,000.00 for his option; that when the agreement between Wallsachs and himself was signed, $5,000.00 was to be paid for Graner’s option at the time of the signing; that this sum was not paid between August 2 and August 11, 1965, although he, Stancliffe, had made demand on Santoni for it, presumably on Graner’s behalf; that on August 13, after he had talked with Santoni on the phone, Kardin was sent over from the Ravens Nest with $1,000.00, mostly in fifty dollar bills; that on August 14, he got a check for $1,000.00 from the Ravens Nest and three weeks later the balance of $3,000.00 was paid to him in cash by one Thomas Averella, who had been brought in by DiTomasso.

Stancliffe testified that Wallsachs operated tire business for ten days to two weeks, after which Kardin and DiTomasso operated it until, in October of 1965, he (Stancliffe) re-purchased the liquor stock and took back the business. He stated that the sale of the Club was never consummated; that tinder the agreement he was to get a first mortgage of $10,000.00, but later discovered that he was to receive only a second mortgage because “they” were taking a $20,000.00 loan from one Albert Aaron. Stancliffe testified that he kept Wallsaclis’s down payment of $3,000.00 “for a lot of debt that was incurred.”

The prosecuting witness, Charles Grogan, testified that he had agreed to “back” Wallsachs to the extent of $10,000.00 in the event that Wallsachs purchased the Surf Club; that he was present when the agreement between Wallsachs and Stancliffe was signed on August 2, 1965 and that Frenkil (Wallsachs’s attorney) “printed a check” for $3,000.00 at that time, which Wallsachs signed and gave to Stancliffe as a down payment; that on August 3, 1965, he (Grogan) went to the Surf Club and gave Frenkil $20,000.00 in the form of two checks; that the money was to be placed in escrow, to be released to Wallsachs only on Grogan’s written signature, and only if Wallsachs, within ten days, or by August 13, had himself put in $10,000.00; that if Wallsachs failed to post this sum of money, the agreement between him and Wallsachs was cff; and that in return for his $10,000.00 he (Grogan) was to receive a chattel mortgage on the equipment of the business, together with a life insurance policy, both in the amount of $10,000.00.

Grogan testified that on August 11, Wallsachs showed him a statement to the effect that $5,400.00' of the escrowed funds had already been spent; that this expenditure was completely without his knowledge and he did not know how the money was withdrawn from the escrow account; and that on August 11, he and Wallsachs went to see Santoni at the Ravens Nest, at which time Santoni gave Wallsachs a check for $2,000.00.

Grogan testified further that on August 12 he went to Frenkil’s office, apparently to make inquiry with respect to the expenditure of the $5,400.00 of the escrow funds; that' Santoni also came to Frenkil’s office in response to Frenkil’s phone call; that Santoni said to him, “I understand you are pulling out of the deal. I want my five grand”; that he asked Santoni “Whát five grand are you talking about,” to which Santoni responded by saying “The five grand I paid out in payoff”; that Frenkil then arranged for him (Grogan) and Santoni to be alone in an adjacent office, at which time Santoni hold him that he “was out” another $2,500.00 which he had advanced to Wallsachs for expenses; that Santoni then said to him “You are going to loan me 7,500 bucks”; that after he (Grogan) declined, Santoni said, “You will loan it to me, you so-and-so, or your life won’t be worth $75.00”; that Santoni also said “We will either get the 7,500 bucks or we won’t get out of the City of Baltimore today.”

Grogan further testified that at one time Kardin came into the room and he and Santoni “spent considerable time trying to get me to say Wallsachs was a thief”; that Santoni told him that Kardin “had connections with the Teamsters Union” and that “if they didn’t get me today, eventually they would have a truck run me off the road and kill me”; that thereafter he (Grogan) and Santoni returned to Frenkil’s office where Frenkil said,

“I’m drawing two checks, one for seven thousand five hundred and eighty dollars and one for six thousand, nine hundred and forty dollars. You sign both of them.”

He further testified that he (Grogan), in Santoni’s presence, then signed the checks, which were made payable to his (Grogan’s) order because Santoni “forced me to sign it” by his threats; that he told Frenkil that he didn’t owe Santoni any money and had no intention of loaning him any money; that he didn’t want to sign the checks because “It’s nothing but fraud,” but Frenkil told him “go ahead, sign them.”

Grogan testified that Frenkil then went to the bank and came back with a cashier’s check drawn to his order for $6,460.00 and that Frenkil “handed to Mr. Santoni in the presence of everyone three bundles of one hundred and fifty dollars bills. which Santoni ruffled and put in his pocket”; that he didn’t tell Frenkil not to give the money to Santoni; that thereafter Santoni said to him (Grogan), “I am giving you a note for this money,” to which he responded by stating that he didn’t want Santoni’s note, that it was “no good,” and that “I want money”; and that Santoni said “I will give you good juice,” meaning interest.

Santoni’s note to Grogan was in the amount of $9,092.00 and called for payments of $100.00 weekly. The note was signed by Santoni in Frenkil’s presence.

Grogan testified that he did not know how much money Frenkil gave Santoni when he returned from the bank; that Santoni gave $500.00 in cash to Frenkil for his legal fees; that although he made demand for payment of Santoni’s note on October 25, 1965 from one Manning, no payments were ever made; and that he never wrote to Santoni about the note because he couldn’t locate him.

On cross-examination Grogan testified that Wallsachs had executed a note to Santoni dated August 12, 1965, the amount of which was to be the same as the amount of the note executed by Santoni to Grogan. Grogan was then asked by defense counsel:

“O. Actually, was it not that Mr. Wallsachs was supposed to pay you back this money and you would not accept his note. Isn’t that true ?”

The question was objected to by the State and the court sustained the objection. No reason was given either for the State’s objection or the Court’s ruling, and no proffer of proof was made by appellant’s counsel.

A statement made by Erwin Frenkil was received in evidence by stipulation of the parties and was substantially as follows : That Kardin, Grogan and Wallsachs “developed a transaction for the purchase of the Surf Club”; that on August 2, 1965 he drew a contract between Wallsachs and Stancliffe for the sale of the Surf Club; that the parties insisted that the matter had to be consummated then and there because among other reasons “an individual holding an option had to be satisfied rather promptly”; that Wallsachs gave him a blank check for the $3,000.00 down payment which, after it was filled in and signed by Wallsachs, was given to Stancliffe; that after the sellers left, Grogan, Kardin, DiTomasso and Wallsachs “discussed the matters to be taken up between them as to their respective interests, salary, personnel, etc.”; that Wallsachs and Grogan were “the money people” in the transaction and they were to own one-half of the business; that Grogan gave him $20,000.00 on August 3 which was placed in his (Frenkil’s) attorney escrow account; that “I was advised that $5,440.00 had been dispersed for the deposit payment, the liquor inventory and change for cash register, and was requested to make a first disbursement to Wallsachs of this amount which was done on August 4”; that on August 10, Wallsachs told him that all the money in the transaction belonged to him and that Grogan was not a real investor in the transaction, and that “papers” should be prepared to delete Grogan from the transaction; and that after “some discussion” an agreement was prepared and turned over to Wallsachs, Kardin and Santoni; that on August 12, Grogan came to his office unannounced, demanding a certified check for the balance of $14,560.00 in the escrow account, claiming this to be his money; that he (Frenkil) arranged a meeting at that time with Wallsachs, Kardin, Santoni, DiTomasso, and Grogan being present; that he told them to resolve their differences and they discussed the matter out of his presence; that after some time had elapsed, he was told that Wallsachs was not to receive anything; that Grogan asked him to issue a check for $7,580.00 which he was “to turn over to Santoni, and then to issue a check for the balance to him (Grogan)”; that Frenkil then prepared two checks, one for $7,580.00 and the other for $6,940.00; that Grogan asked him to get the checks cashed and to this end, he and Grogan went to the bank together; that Grogan cashed the one check for $7,580.00, placing the money in an envelope which he put in his pocket; that as to the check for $6,940.00, Grogan got $500.00 in cash for payment toward the legal fees, and a cashier’s check for the remainder of $6,440.00 payable to himself; that they then returned to Frenkil’s office where Grogan gave him $500.00 in cash towards his (Frenkil’s) fee; that Grogan then gave $7,-580.00 in cash to Santoni (of which Santoni paid $500.00 to Frenkil for legal services) ; that at no time did Grogan protest the pajunent arrangement with Santoni, or decline to endorse the checks, or indicate that he was under any duress; that he was then instructed to prepare a promissory note from Wallsachs to Grogan but Grogan said he didn’t want Wallsachs’s note; that thereafter he was directed to draw two more notes, both in the amount of $9,200.00, one from Wallsachs to Santoni and the other from Santoni to Grogan; that Wallsachs was told by both Grogan and Santoni to make check payments on his note to Grogan’s order, but to mail them to Santoni; that he (Frenkil) did not understand the basis of the computations, but that it was “his general understanding that the Notes were in connection with Wallsachs making good the monies which were lost in the Surf Club transaction because of his misrepresentation to all parties, including Grogan, Kardin and counsel”; that Wallsachs acknowledged his deception, and that when Grogan left his office after the meeting had terminated he did so in company with Kardin, Wallsachs, and Santoni, with “Dr. Grogan shaking my hand, expressing regret for aggravation caused me, regret at his own ineptness in being caused his financial loss, and stating in his farewell that should he have a matter in this area again, he would like to be able to call upon me for representation.”

Frenkil’s stipulated testimony further indicated that Grogan had accused him of misappropriating $5,440.00, as a result of which he was indicted, but that the State entered a “Confession of not guilty” in the case.

An F.B.I. agent, Arthur Hamilton, testified that on November 17, 1965, he spoke with Santoni at the Ravens Nest in connection with an investigation he was conducting into the sale of the Surf Club; that Santoni told him that in July of 1965 he met Grogan and Wallsachs; that Wallsachs expressed interest in buying a business such as the Ravens Nest; that Wallsachs gave him a check for $2,000.00 as a down payment on a business known as the Quimby Room and that he (Santoni) still had that check in his possession; that because Grogan didn’t like the Quimby Room, they decided to buy the Surf Club; that Graner had an option to buy the Surf Club and that DiTomasso “had arranged to have this option removed for a figure of five thousand dollars,” the payment therefor to be made (a) $1,000.00 from the profits earned by the Surf Club and be paid by Kardin, (b) $1,000.00 in the form of a check from the Ravens Nest, and (c) $3,000.00 from Averella, a friend of DiTomasso, who was interested in getting him “located somewhere”; that the $7,500.00 that he (Santoni) received on August 12 was, as to- $5,000.00 thereof, for Graner’s option, $2,-000.00 for his (Santoni’s) expenses, and $500.00 for Frenkil’s legal fees; and that $1,000.00 of this money was repaid to Kardin, $1,000.00 repaid to the Ravens Nest, and $3,000.00 given to Kardin and DiTomasso to return to Averella. Hamilton testified further that in response to his statement that Averella had never been repaid, Santoni said that “he knew nothing about this” but that “If we get this five thousand dollars back to Grogan, will that take care of everything?” According to Hamilton’s testimony, Santoni denied that no money had been paid on account of Graner’s option prior to August 11; Santoni admitted going to Frenkil’s office with Wallsachs on one occasion to draw out of the escrow account a sum in excess of $5,000.00 to be placed in Wallsachs’s account to cover checks Wallsachs had issued, one for $3,000.00 for the down payment on the Surf Club, and the other in payment for the liquor inventory of the Surf Club.

Santoni did not testify and no other evidence was introduced at the trial.

The lower court, in reaching its verdict, stated:

“Gentlemen, I have given very careful consideration to the evidence in this case, and the issue of credibility is the principal issue as far as the trier of the facts is concerned in this case. As counsel very candidly admitted, while it is true that one cannot view Mr. Grogan with a great deal of sympathy with all of his past dealings; were there no corroboration at all of certain elements about which he testified, the court might he inclined to reach a different conclusion. However, the testimony of Mr. Grogan concerning his conversations with Mr. Santoni, the offer of Mr. Santoni to an agent of the Federal Bureau of Investigation a sum of money, together with the question, ‘Would that satisfy Mr. Grogan ?’ all combined together to make this court believe that Mr. Santoni is, in fact, guilty of larceny; not guilty of false pretenses.”

It thus appears from the lower court’s abbreviated analysis of the evidence that it predicated Santoni’s guilt of larceny upon Grogan’s testimony that he gave $7,580.00 to Santoni because of the latter’s threats to kill or injure him if lie did not do so; and that Santoni’s statement to Agent Hamilton indicating a willingness to return $5,000.00 to Grogan was evidence corroborative of the criminal agency of Santoni in acquiring the money from Grogan.

Appellant contends that the “true nature of the transaction” was that Grogan was making a loan of $7,580.00 to Wallsachs so that Wallsachs could “make good the monies which were lost in the Surf Club transaction because of his [Wallsachs] misrepresentations”; and that as Grogan consented to the transaction there was no trespassory taking of the money sufficient to constitute larceny when it was turned over to Santoni.

The State contends on the other hand that there was a trespassory, non-consensual taking of the money from Grogan by Santoni based on Santoni’s threats upon Grogan’s life and safety; and that since Grogan didn’t owe Santoni any money, the giving of the promissory note by Santoni to Grogan was an obvious ruse to lend some color of legitimacy to Santoni’s criminal act.

As the record clearly indicates, a sharp conflict exists between the testimony of Grogan and the statement of Frenkil, particularly with respect to the critical events occurring on August 12 when the $7,580.00 was turned over to Santoni; and that the lower court viewed this conflict as presenting an issue of credibility, i.e., whether to believe Grogan’s version of what occurred on August 12, or Frenkil’s version of the transaction.

After Grogan had testified that he was compelled by threats to pay over the money to Santoni, and that he didn’t want Santoni’s promissory note for the money, the appellant, on cross-examination of Grogan, developed the fact that on the same day (August 12) Wallsachs had executed a promissory note payable to Santoni in the same amount as that given by Santoni to Grogan. When appellant then sought to elicit an admission from Grogan that Wallsachs was to pay the money back to him (Grogan), the court foreclosed further inquiry along this avenue by sustaining the State’s objection to appellant’s question.

As was later shown by the statement of Frenkil, he had on August 12 prepared a note from Wallsachs to Grogan for the money Grogan had paid over to Santoni, but when Grogan refused to accept Wallsachs’s note, two other notes were prepared, both in the same amount, one from Wallsachs to Santoni and the other from Santoni to Grogan, with instructions given by both Santoni and Grogan that Wallsachs, in making payments on his note, was to make his checks payable to Grogan but mail or deliver them to Santoni (indicating then the probability that Wallsachs was the primary debtor of Grogan, with Santoni also being liable, perhaps secondarily, on his note to Grogan).

As Frenkil’s statement was to the effect that he didn’t know the basis of the computations made on August 12 because “These people were in the habit of making their own deals and reporting only the net result that they wanted to have handled by me,” it was of paramount importance to appellant’s defense that he be permitted the fullest opportunity to cross-examine Grogan in an effort to develop, if he could, that in reality the transaction was a loan of money from Grogan to Wallsachs with payment thereof being made to Santoni on behalf of Wallsachs.

We think that in view of the state of the record before us-as unenlightening a record as we have have ever had before us to review — that the lower court’s restriction upon the scope of appellant’s cross-examination of Grogan was such as under the circumstances constituted prejudicial error. In so concluding, we are not unmindful of the rule that the scope of cross-examination is a matter committed to the sound discretion of the trial court, Plumley v. State, 4 Md. App. 671, and that ordinarily where, as here, no proffer was made of the answer to the question to which the objection was sustained, there is no issue properly before us for review, Darby v. State, 3 Md. App. 407, Bowyer v. State, 2 Md. App. 454, and Brown v. State, 1 Md. App. 571. But as the answer sought to be elicited from Grogan by the appellant was so obvious and apparent from the question itself (and so very vital to appellant’s defense), we do not think that a proffer of the substance of the expected answer was necessary, Baldwin v. State, 226 Md. 409, 414, so that a new trial must be granted to afford the appellant a fair opportunity to question Grogan as to whether the $7,580.00 was in any sense viewed by him as being a loan to Wallsachs, to be repaid to him; and, in this connection, to inquire as to Grogan’s understanding of the purpose and meaning of the promissory note prepared on August 12 from Wallsachs to Santoni, and particularly as to his understanding of the directions purportedly given by Santoni and himself that Wallsachs was to make payments on his note to Santoni to Grogan. In view of our conelusion, we need not consider the question of the sufficiency of the evidence to convict appellant of larceny. We note, however, that the indictment charged the larceny of the money itself, and not of the checks signed by Grogan on August 12 (see Maryland Code, Article 27, Section 343, and Felkner v. State, 218 Md. 300). To constitute larceny there must be a taking sufficient to constitute a trespass, Loker v. State, 2 Md. App. 1 — a taking from the possession of the owner against his will, Murray v. State, 214 Md. 383. More specifically, larceny is the wrongful and fraudulent taking and removal of goods or chattels (including money) from the possession of another against his will with the intent to deprive the person entitled thereto of his ownership thereof. Brown v. State, 236 Md. 505; Pletcher v. State, 231 Md. 190; Putinski v. State, 223 Md. 1; Robinson v. State, 4 Md. App. 515; Reagan v. State, 2 Md. App. 262. Ordinarily, the taking of money or other property by putting the owner in fear of personal injury constitutes robbery, Osborne v. State, 4 Md. App. 57, Harrison v. State, 3 Md. App. 148, and may under appropriate circumstances constitute extortion in violation of Maryland Code, Article 27, Section 562 (see Iozzi v. State, 5 Md. App. 415). It has been held in several older cases that under some circumstances, at least, it may constitute larceny to take property from another through fear induced by threats. See State v. Kallaher, 39 A. 606 (Conn.); Beasley v. State, 38 N. E. 35 (Ind.). As stated in 32 Am. Jur. Larceny, Section 35, the rule is that a felonious taking with the consent of the owner, when the giving of his consent is not a voluntary act but is the result of actual fear induced by threats calculated to excite a reasonable apprehension of bodily injury is, in effect, a taking without the owner’s consent and may constitute a larceny. To like effect, but with little authority cited in support of the text, see 52A C.J.S. Larceny, Section 23; Wlmrton’s Criminal Law and Procedure (Anderson Edition), Section 507; Perkins on Criminal Law, page 203.

Judgment reversed; case remanded for a new trial.

      . Averella later demanded that the $3,000.00 be returned to him. Stancliffe signed a note for the money some six months thereafter.

      . The evidence fails to disclose why Santoni gave the check to Wallsachs.

      . The record does not provide any insight into the identity of Maiming.

      . There is no evidence to indicate the terms or details of this agreement.

      . The record does not indicate how the F.B.I. became involved in the case.

      . As heretofore set out, the question was:
      “Q. Actually, was it not that Mr. Wallsachs was supposed to pay you back this money and you would not accept his note. Isn’t that true?”

      . Although neither Santoni nor Grogan were contracting parties under the agreement for the sale of the Surf Club, it is clear that both were intimately involved in that transaction. As there was some evidence showing that Santoni, together with Kardin and DiTomasso had obligated themselves to pay $5,000.00 to acquire Graner’s option on the Surf Club, and that this money was actually paid (although after August 12), and as there was evidence to the effect that Santoni paid $2,000.00 to Wallsachs, and $500.00 to Frenkil for legal services rendered in connection with the transaction, appellant’s claim that Wallsachs was turning the money over to him in order to “make good the monies that were lost in the Surf Club transaction because of his (Wallsach’s) misrepresentations to all parties” is not entirely without some evidentiary foundation.