text:
    WARREN CHRISTOPHER ROBINSON v. STATE OF MARYLAND
    [No. 106,
    September Term, 1967.]

      Decided July 9, 1968.

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

      Howard L. Stern for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty of storehouse breaking with intent to steal goods of the value of $100 or more and grand larceny by a jury in the Circuit Court for Prince George’s County. He was sentenced to imprisonment for a term of 5 years on each offense, the sentences to run concurrently.

About noon on 4 July 1965 Officer Charles Ward of the Prince George’s County Police Department, on routine patrol, observed that a lock had been cut on a gate in the chain fence •enclosing an area in which a storehouse was situated. He drove into the area and further observed that a door to the storehouse had been broken. He saw four men inside the storehouse. One of them called, “There’s the cops” and all four ran. Two of them, one of whom the officer identified as the appellant, ran out the door. The officer chased them and they jumped the fence and escaped amid a fusillade of shots fired by the officer. He “put a lookout” for the four men, for breaking and entering, describing the clothes of the appellant and the other man who had jumped the fence.

Officer Philip Donahue, of the Bladensburg Police Department, heard the lookout about 12:10 P.M. He saw the appellant and another man answering the descriptions given “coming out from the railroad tracks” about three-quarters of a mile from the storehouse. “I observed the defendant and then I saw that he was running, his pants were all raggedy and torn up and he matched the description that the lookout was put out for”. They came onto Kenilworth Avenue, “hitch-hiking”. As the officer approached in his car, they entered a car which had stopped to give them a lift. Donahue ordered them out at pistol point and the appellant said to his companion, “Let’s get him. There’s only one of him”. The officer called for help on his car radio and about five minutes later Officer Donald DeSantis of the Prince George’s County Police Department arrived. He searched them — “we always check them for weapons before they get in the car or anything of that nature” — and seized $205 from the person of the appellant. He took them back to the storehouse and turned the men and the money over to Sergeant Joseph Thornberry who was at the scene with other officers. Detective Sergeant Frank Bishop arrived and the appellant was again searched and an automobile registration card seized from him. “As a result of information on that registration card” Bishop went to a white 1962 Cadillac convertible that was parked outside the front gate of the storehouse fence and without opening the doors, looked inside, and saw a pair of bolt cutters on the rear floor. He searched the car and seized the bolt cutters. They were identified by him at the trial. The automobile was taken to the police station lot in Seat Pleasant and photographed. At the trial two photographs were identified by the photographer and by Bishop as being photographs of the automobile from which the bolt cutters were recovered. The bolt cutters, although marked for identification, were never offered in evidence. The photographs were received in evidence while Bishop was on the stand.

The evidence as above summarized was received in the presence of the jury. The appellant objected to testimony with regard to the Cadillac and the photographs of it when the photographer was testifying, when Officer Ward was testifying, when Officer Bishop was testifying and objected to the photographs being received in evidence. He moved for a mistrial when the bolt cutters were displayed and identified and later moved for a mistrial regarding the evidence concerning the Cadillac “because just to move to strike all the testimony about this Cadillac from the trial, there has been too much in it and the pictures have been admitted in evidence and it is highly prejudicial”. He moved to strike all testimony with regard to the bolt cutters. The answer of the State to that motion was that the bolt cutters were not going to be introduced in evidence. The bases of his objections and motions were that his arrest was illegal and that the search of his person and automobile and the seizure of evidence as a result thereof were unlawful. The objections were overruled and the motions denied. At the conclusion of evidence offered by the State the trial court said to the jury, “Members of the jury, anything you see lying around on the table introduced for identification purposes, unless it has been offered in evidence and admitted in evidence you are not to consider it”. It denied a motion for judgment of acquittal on all counts. At the conclusion of all the evidence the appellant moved “to strike from the evidence and the record'the items seized as a result of the arrest, and that is the wallet and its contents, the registration card, the subsequent seizure of the Cadillac, the pictures of the Cadillac and the pictures that have been placed in evidence, and in addition the $205. All references within the record concerning these matters should be struck and we base our motion on the fact of the illegal arrest”. The court then granted the motion to quash all the evidence as to the bolt cutters, the car and the pictures of it and the cash. It denied a motion for judgment of acquittal as to the storehouse breaking and larceny and granted the motion as to receiving stolen goods. In its charge to the jury the court said:

“Now, there is certain evidence that was admitted during the course of the trial that was also stricken by virtue of the motions because the Court determined that the search, original search, was an illegal search and all the fruits that flowed from that illegal search are inadmissible. Therefore, you will strike from your minds all the exhibits that were admitted except — may I have them, Mr. Clerk? — the picture of the broken glass on the door, the picture of the inside of the warehouse showing the safe and the other pictures showing the safe with the pipe here sitting on top of it. You may properly consider that along with the two plats that were drawn by the witnesses. And you may likewise consider all the testimony that has not been excluded other than the fruits of the search, you may not consider that. The snippers (bolt cutters) and the pictures of the automobile and the possession on the defendant of the sum of money, you may not consider that because that flowed from the fruits of an illegal search”.

Maryland Rule 729, effective 1 September 1967, provides for the filing of a motion for the suppression, exclusion or return of property seized which may be used as evidence at trial on the ground that it was obtained by an unlawful search or seizure. Section b, subsection 1. But the rule does not require a pre-trial motion and the failure to file such motion before trial “shall not constitute a waiver of a defendant’s right to object at the trial to the introduction of such evidence”. Section c. When such motion is filed at least five days prior to the trial date, or if a petition is transferred to the court of criminal trial jurisdiction as provided by the rule, the trial shall not commence until the matter is determined by the court. Section d, subsection 1. In all other cases the court shall have discretion to determine the motion as a preliminary matter or during trial. “If the case is being tried before a jury the hearing on the motion, or on objection to the introduction of evidence alleged to have been obtained by an unlawful search and seizure, shall he out of the presence of the jury”. Section d, subsection 2. The rule was not effective at the time of the appellant’s trial, but the substance of it was the preferred procedure prior to its adoption. It was established before the rule was adopted that the determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart from the question of the guilt or innocence of the accused. “If the case is being tried before a jury, such a matter should be heard out of the presence of the jury”. Farrow v. State, 233 Md. 526, 533. Nor was it essential prior to the effective date of the rule, that a motion to suppress the evidence be made prior to triaL A motion to suppress the evidence and objection to its introduction at trial preserved a defendant’s basic constitutional right. Shrout v. State, 238 Md. 170, 174. In the instant case we think the trial court erred in not determining the matter of the admissibility of the challenged evidence out of the presence of the jury. The question is whether in the facts and circumstances the error was so prejudicial as to require reversal of the judgments.

THE ARREST

The law of arrest in Maryland has not been codified but is the “spawn of judicial and social thought, to many * * * long been considered mature in its present state”. The Law of Arrest in Maryland by David Kauffman, 5 Md. L. Rev. 125, 171 (1941). Mr. Kauffman points out: “To those more keenly cognizant of the change in the requirements of an administration of criminal justice, the doctrine is not only mature, it is over-ripe”. The probative force of this observation is enhanced by the felony-misdemeanor distinction in this State, for this distinction plays a large part in the determination of whether an arrest made without a warrant is valid or invalid, Shelton v. State, 3 Md. App. 394; Boone v. State, 2 Md. App. 479, and, in turn, the validity of the arrest determines whether a search incident thereto is reasonable as to make evidence seized thereby admissible, McRae v. State, 3 Md. App. 388. The general rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested has committed it. Duckett v. State, 3 Md. App. 563, 572. But when the offense is a misdemeanor, the general rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe that a misdemeanor has been or is being committed in his presence or view and that the arrestee is the misdemeanant. Thompson v. State, 4 Md. App. 31, 37; Salmon v. State, 2 Md. App. 513, 522. See McCarthy v. State, 2 Md. App. 400.

Under the common law felonies denote offenses “as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of ‘misdemeanors’ only”. 4 Blackstone, Commentaries 5. In Maryland only those crimes are felonies “which were such at common law, or have been so declared by statute”. Bowser v. State, 136 Md. 342, 345; Dutton v. State, 123 Md. 373, 378. It is clear that the common law differentiation between felonies and misdemeanors is not practical in application today. Nor can the Maryland system of differentiation be logically supported. In many instances there is no correlation between the designation of the offense as a felony or misdemeanor and the seriousness of the crime or the severity of the punishment permitted. This has been recognized to some extent by the legislative designation of some crimes as felonies which were theretofore misdemeanors. And the felony-misdemeanor differentiation is no longer material with respect to the admissibility of evidence. Since Mapp v. Ohio, 367 U. S. 643 (1961) illegally seized evidence is not admissible, be the prosecution for a felony or a misdemeanor. State v. Jacobs, 242 Md. 538. But the differentiation is still relevant to the determination of the validity of an arrest and peace officers in Maryland frequently find themselves under a handicap due to the unusual distinctions between felonies and misdemeanors. Eight years ago, in Oden v. State, 222 Md. 325, 329, the Court of Appeals referred to the problems pointed out inter alia in the Kauffman article, and noting that they still persisted, stated that they could be dealt with by legislative, but not by judicial action. The Court found the problems to be still existent in 1965, Goad v. State, 239 Md. 345, 347, and the instant case clearly shows that they exist today.

As more sophisticated means of communication became available to peace officers the general rule as to arrest for felonies was applied with reference to information received by the arresting officer over the police radio network. In Mulcahy v. State, 221 Md. 413, stating at p. 421, that, “[i]n this State it has long been settled that a peace officer may arrest without a warrant, provided there were reasonable grounds to believe at the time of the arrest that a felony had been committed and that the person arrested had committed the offense”, the Court said, p. 422, that it is “wholly immaterial whether the suspicion arises out of information imparted to the officer by someone else, or whether it is founded on his own knowledge”. In later cases both the Court of Appeals and this Court have held that a report of a felony and a description of the perpetrators broadcast over a police radio may furnish probable cause for an arrest. But we do not think that it is a necessary conclusion from the language of opinions dealing with the matter that the arresting officer must himself have probable cause for the arrest, where another member of the police team has probable cause and the arresting officer has been alerted to make the arrest over the police radio. We think that Farrow v. State, 233 Md. 526 and Lamot v. State, 2 Md. App. 378 are significant. In Farrow, a police officer in Baltimore City had probable cause to believe that the defendant had committed a rape and broadcast a description of the defendant and his automobile and that he was wanted by the Baltimore City police for rape and other crimes. The defendant was arrested by Anne Arundel County police officers. The Court said, pages 531-532:

“The officers in Anne Arundel County who made the arrest knew nothing about the probable cause but they had received a look out’ for the defendant from a responsible source and we think that is sufficient. If the police team working on the particular case had accumulated sufficient information to furnish probable cause for a reasonable man to believe that the alleged crime had been committed and that there was probable cause to believe that the defendant was involved therein, there was sufficient cause for his arrest”.

In Lamot we said, p. 384, citing Farrow:

“If the police officers, working as a team, had accumulated sufficient information to furnish probable cause for a reasonable man to believe that the alleged crime (a felony) had been committed and that there was probable cause to believe that the appellants were involved therein, there was sufficient cause for their arrest”.

At common law an arrest without a warrant could be made by a peace officer for a misdemeanor only if it amounted to a breach of the peace committed in his presence. 4 Blackstone, Commentaries 292; 10 Halsbury’s, Laws of England, 342-345, 3rd Ed. (1955); Rex v. Bright, 4 C. and P. 387 (1830). But he could not arrest for a past breach of the peace where the threat of a continuing or further breach of the peace in the immediate future was not existent. 2 Hale, Pleas of the Crown, 90. A warrant was required to arrest for past misdemeanors. 4 Blackstone, Commentaries 289-296. Although the courts in some states still limit the right to arrest without a warrant for misdemeanors to those amounting to a breach of the peace committed in the presence of the arresting officer, Radloff v. National Food Stores, Inc., 20 Wis. 2d 224, 121 N. W. 2d 865 (1963), most states follow the general rule and permit the arrest to be made for any misdemeanor committed or being committed in the presence or view of the arresting officer. Some states have done so by statute. Maryland, among others, has done so by judicial decision. The first Maryland cases dealing with the matter came in the wake of the change of police au thority in Baltimore City from the City to the State. See Lewis, The Baltimore Police Case of 1860, 26 Md. L. Rev. 215 (1966). Both Mitchell v. Lemon, 34 Md. 176 and Roddy v. Finnegan, 43 Md. 490, dealing with arrests in Baltimore City by police officers stated that an officer can arrest without a warrant for a misdemeanor committed in his presence. By 1895 when B. & O. R. R. v. Cain, 81 Md. 87 was decided the rule was firmly established, although the cases therein relied on, Phillips v. Trull, 11 Johns 486 (N.Y. 1814) and Derecourt v. Corbishley, 5 E. & B. 188 (Eng. 1855), were cases authorizing arrest for a breach of the peace in the officer’s presence. In any event the rule has been consistently followed in this State.

In the instant case Officer Ward observed the cut lock on the gate in the fence, the broken door of the storehouse, the appellant on the premises and the flight of the appellant at the appearance of the police. These facts and circumstances within the officer’s knowledge were sufficient in themselves to warrant a man of reasonable caution in the belief that the misdemeanor of breaking the storehouse had been committed or was being committed in his presence and view and that the appellant was the misdemeanant. But Ward was not the arresting officer. The appellant was arrested by Officer Donahue who heard the police broadcast of a “lookout” for the four men seen by Ward, for breaking and entering, and describing the appellant. The question is whether a police officer may arrest for a misdemeanor committed in the presence of another police officer upon receipt of information that the misdemeanor has been committed and of a description of the misdemeanant. In Silverstein v. State, 176 Md. 533 a detail of police officers in plain clothes was sent to investigate if the law against gambling was being violated on the premises of the defendant. One of the officers, without trespassing, entered the premises and what he observed was sufficient probable cause for him to believe that the misdemeanor was being committed in his presence by the defendant. The detail of policemen entered, were given an account by the officer of what he had seen and the sergeant in charge of the detail arrested the defendant. The Court said, page 540:

“The crime of which the traverser was accused is a misdemeanor, which, as has been seen, was committed in the presence or view of one of a detail of police officers, and by him forthwith communicated to the detail as soon as they entered the store room. It was therefore immaterial which of the officers of the detail placed the traverser under arrest”.

We think it a proper extension of the rationale of Silverstein that when a misdemeanor is committed in the presence of a police officer and information is promptly placed on the police radio that the misdemeanor has been committed and a description of the misdemeanant given, as was done here, the arrest of the misdemeanant by another police officer within a reasonable time of the receipt of the broadcast information is valid. We feel that if a member of the police team in a felony offense need know nothing about the probable cause within the knowledge of another member of the police team in order to make a valid arrest upon receipt of a “lookout” from a responsible source, Farrow v. State, supra, a member of the police team may arrest for a misdemeanor committed in the presence of another member of the police team upon receipt of a “lookout” from a like source that the misdemeanor has been committed. We do not interpret any prior decision in this State as precluding our holding and think it advisable for the proper administration of justice. Our ruling in no way authorizes an arrest for a misdemeanor not committed in the presence or view of a peace officer. We are aware that the Court of Appeals has stated that only by legislative and not by judicial action may warrantless arrests for misdemeanors be made as permitted for felonies — upon probable cause to believe that the offense has been committed, whether or not in a peace officer’s presence or view. We hold that the arrest of the appellant was valid.

THE SEARCH

As the arrest of the appellant was valid, the search of his person incident to the arrest was reasonable and the evidence seized by such search was admissible. Speaks v. State, 3 Md. App. 371, 376. The registration card to the Cadillac was seized by continuation of the search of the appellant when he was taken, shortly after his arrest, to the scene of the crime. The continuation of the search then as incident to the arrest and the seizure of the registration card at that time was not unreasonable. See Leatherberry v. State, 4 Md. App. 300. The attention of the police was directed to the Cadillac automobile parked at the scene of the crime by the information on the registration card found on him. As the registration card properly came into the possession of the police, the connection of the appellant with the automobile as shown by the card could be properly received in evidence. The physical presence of the automobile was not in any event ascertained by a search; it was there for all to see. The bolt cutters were in plain view in the car and were seen by the police without a trespass or search. Thus, testimony as to them was proper. In the facts and circumstances we feel that the receiving of evidence in the presence of the jury to determine the legality of the arrest, the initial admission of the challenged evidence and its ultimate exclusion do not require reversal of the judgments. The appellant received more than that to which he was entitled by the ultimate exclusion of the evidence. See Watts v. State, 3 Md. App. 454.

We hold that there was no error in the denial of the motions for a mistrial.

THE SUFFICIENCY OF THE EVIDENCE

The Storehouse Breaking

The appellant does not argue in his brief that the evidence was not sufficient to show a breaking of the storehouse. He urges, however, that there was no evidence to show that the appellant took anything and that since $24,000 in merchandise had been stolen it could not have been taken by the appellant who was found on the premises and fled when seen by the police. He asserts that this showed a prior breaking by others rather than by him. Therefore his criminal agency was not proved. The $24,000 in merchandise was apparently stolen from the trailer trucks parked within the fenced area outside the storehouse, but there was testimony that either $1172 or $1171 in cash, checks and vouchers, belonging to the company was in the office safe at the time it was locked, although the assistant terminal manager was unable to state the exact amount of cash. And there was evidence that $384.76 in cash was in the storehouse in a cigar box. “In order to prove felonious intent under §32 of Art. 27, Code, it is not necessary to prove any goods were taken. The actual intention at the time of the breaking is controlling, not whether any goods of value were found and stolen, and the intention may be inferred from the circumstances”. O’Brien v. State, 1 Md. App. 94, 97. “[Ojn a charge of breaking with intent to steal goods of a designated value, it is only necessary to sustain a conviction that the evidence permits the trier of facts reasonably to infer that the accused intended to take goods of that value or more * * *. The amount or value of what is intended to be stolen is often a matter of inference”. Mercer v. State, 237 Md. 479, 485. Under the circumstances in which the appellant was found by the police on the premises and fled the scene, we think that the jury could And beyond a reasonable doubt that he participated in the breaking of the storehouse. We further think that the evidence permitted the jury reasonably to infer that he intended to take goods of the value of $100 or more. We cannot say that there was no legally sufficient evidence or rational inferences therefrom on which the jury could find the appellant guilty beyond a reasonable doubt. Agresti v. State, 2 Md. App. 278.

The Larceny

The appellant was convicted of grand larceny under a count In the indictment presenting that he did feloniously steal $341.72 current money, twelve Manhattan shirts of the value of $60, two cases of Green Lawn Gin of the value of $71.32, one bathroom rug of the value of $5.00 and one bathroom rug of the value of $2.00, being the moneys and goods of “the customers of Cochrane Transportation Co., Inc., under the care and control of said Cochrane Transportation Co., Inc., a body corporate, bailee”. The record is devoid of any evidence that shirts or rugs were stolen. There was evidence that two cases of gin were found by the officers near a hole cut in the fence surrounding the storehouse area and that the company “freighted” gin but there was no evidence that the gin so found was owned by the customers of the company and held by it as bailee and no evidence of its market value. The assistant terminal manager testified that $1172 in cash, checks and vouchers, (he later gave the amount as $1171) was in the office safe, but he could not give the amount of cash or current money represented in that total. Nor is it clear from the evidence that the cash, checks and vouchers were missing from the safe on 4 July when the police discovered the breaking or on 5 July when the assistant terminal manager arrived on the scene. When one of the police officers first entered the premises he saw a cigar box on a 50 gallon drum near a bay door inside the storehouse. He opened the box and it contained $384.76. It was not the same box seen near the safe. The assistant terminal manager said that “salvage money” was kept in a cigar box but he did not identify either cigar box found as that in which the money was kept and there was no evidence as to how much money was in the box at the time of the breaking or what amount was missing therefrom, if any, or whether the “salvage money” was locked in the safe.

Larceny is the wrongful and fraudulent taking and removal of personal property from the possession of another against his will, with intent to deprive the person entitled thereto of his ownership therein. Hochheimer, Law of Crimes and Criminal Procedure, 1st Ed. § 690, p. 409; Fletcher v. State, 231 Md. 190. The appellant was charged with grand larceny — the taking of current money and goods of the value of $100 or more. There was no evidence sufficient to show a taking of the money and goods as charged. It was not shown that the gin was ever in the storehouse or to whom it belonged or what its market value was. There was no evidence at all with regard to the shirts and rugs. It was not proved that there was current money in the amount of $100 or more in the safe even if it be assumed that money was stolen therefrom. It was not shown that other current money was stolen. There was testimony that $24,000 in merchandise was taken from some 20 trailer trucks but this merchandise was in no way identified so as to connect it with the goods charged in the indictment nor was its ownership proved. We find that there was no legally sufficient evidence or rational inferences therefrom on which the jury could find the appellant guilty of grand larceny as charged beyond a reasonable doubt. In view of our holding we do not consider additional questions with respect to ownership of the money and goods. But see Anderson v. State, 3 Md. App. 85.

IMPEACHMENT OF DEFENSE WITNESSES

The general rule is that evidence of a conviction of a crime is permitted to impeach the credibility of a witness on cross-examination in the trial courts discretion. Mason v. State, 242 Md. 707, 710. Such evidence need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the witness is not to be believed under oath. “In such instances the exercise of discretion by the trial judge will not be interfered with on appeal unless the fact of the prior conviction is clearly irrelevant”. Cousins v. State, 230 Md. 2, 4; Md. Code (1965 Repl. Vol.) Art. 35, § 10. See McLaughlin v. State, 3 Md. App. 515. The general rule applies where the defendant is a witness in his own behalf. “[H]e thereby puts his character in issue, and may be asked on cross-examination if he has been convicted of crime”. Taylor v. State, 226 Md. 561, 567, citing Burgess v. State, 161 Md. 162, 169.

In the instant case the appellant testified in his own behalf and on cross-examination was asked if he had ever been convicted of the crime of grand larceny. He replied that he had and it was brought out on further questioning that he was convicted in January 1966 and that he was presently serving a three year sentence for that conviction at Lorton Reformatory where he had been incarcerated about 10 months. We think the prior conviction of grand larceny was clearly relevant on the issue of the appellant’s credibility and find no abuse of the trial judge’s discretion in admitting the testimony now challenged.

Anthony Williams, a witness for the appellant, on direct examination was asked his address by defense counsel and replied that it was “3536 Park Place, Northwest”. He was cross-examined as to his address and it was elicited that his current address was actaally 200 19th Street, Northwest, the “D. C. jail”. The appellant complains that the matter was not relevant and that the witness was obliged to repeat five times that his address was the jail. We see no prejudicial error requiring reversal. We cannot say that the trial judge abused his discretion in permitting the question and answer on cross-examination which showed that the correct address was other than that the witness had previously given. And we think it clear from the record that the witness was made to repeat that the address was that of a jail only because his answer could not be at first heard by the court or State’s Attorney.

Judgment affirmed as to storehouse breaking (1st count of the indictment); judgment reversed as to larceny (2nd count of the indictment); remanded for a new trial under the second count.

      . The crime was a misdemeanor on 4 July 1965, the time it was allegedly committed. Md. Code (1967 Repl. Vol.) Art. 27, § 32. By chapter 628 of the Acts of 1966 it was made a felony but the Act is not applicable to crimes committed before 1 June 1966.

      . The appellant was also charged with receiving stolen goods.

      . The common law felonies were murder, manslaughter, robbery, rape, burglary, larceny, arson, sodomy and mayhem. Hochheimer’s Criminal Law (1st Ed.) § 6, p. 3.

      . See 2 Md. E. Rev. 284.

      . For example, assaults with intent to rob, murder, rape or have carnal knowledge are now felonies. Md. Code (1967 Repl. Vol.) Art. 37, § 12.

      . In Maryland, prior to Mapp, illegally seized evidence was admissible as to felonies but, by statute, was inadmissible as to misdemeanors, prosecutions for carrying a concealed weapon and violations of the narcotics laws, and, in certain counties, for violation of the gambling and lottery laws excepted. Md. Code (1965 Repl. Vol.) Art. 35, § 5; Md. Code (1967 Repl. Vol.) Art. 37, § 399.

      . Hopkins and Terry v. State, 239 Md. 517; Darby v. State, 3 Md. App. 407; Williams v. State, 3 Md. App. 115; Michaels v. State, 2 Md. App. 424.

      . The question was not specifically answered in Johnson, etc. v. State, 238 Md. 528; Anthony v. State, 3 Md. App. 129; Barton v. State, 2 Md. App. 52; Carwell v. State, 2 Md. App. 45; Crumb v. State, 1 Md. App. 98.

      . Hale, volume 2, pages 90-98, also recognized the right to arrest for a felony on probable cause. This right was apparently based on the fear that a felon would be more likely to attempt to escape, the crime being more serious. Also under the Statute of Winchester, 13 Ed. I, Stat. 2, C. 1 (1285), peace officers were charged with the duty of raising a “hue and cry” and assembling the townspeople in pursuit of offenders when a felony came to their knowledge. And according to Blackstone, watchmen were still empowered in the 18th century to arrest all offenders at night and hold them until morning as empowered by 13 Ed. I, Stat. 2, c 4.

      . For example see Ark. St. Ann. (1962 Repl. Vol.) Art. 26, § 210; Ariz. Rev. St. (1956) § 13-1403; Fla. St. (1965) ch. 901.15; Ky. Rev. St. (1962) ch. 431.005; Ill. Ann. St. (1964) Art. 38, § 107-2; Miss. Code Ann. (1942) § 2470; N. D. Cen. Code (1967 supp.) § 29-06-15; Standard Calif. Codes (1965) § 836, Penal Code. See also 18 U.S.C.A. § 3052.

      . For example an arrest for a misdemeanor committed or being committed in the presence of the arresting officer has been held valid in the following cases: Allen v. State, 229 Md. 253; LeFaivre v. State, 208 Md. 52; Griffin v. State, 200 Md. 569; Kershaw v. State, 199 Md. 135; Callahan v. State, 163 Md. 298. In Blager v. State, 162 Md. 664, an admission by an accosted suspect that he was committing the misdemeanor of carrying illegal lottery slips validated an arrest.
      Such an arrest was held to be invalid where the misdemeanor was committed in the presence of a private citizen and not in the arresting officer’s presence — McCarthy v. State, 2 Md. App. 400; when the offense was committed in no one’s presence — Robinson v. State, 229 Md. 503; Oden v. State, 222 Md. 325; Davids v. State, 208 Md. 377; Walker v. State, 195 Md. 412; where the offense was committed in the presence of a private officer—Goad v. State, 239 Md. 345.

      . Larceny of $100 or more is a felony, but at the time of the arrest, the officers had no information that anything had been taken from the storehouse and made no claim that the appellant was being arrested for grand larceny or any other felony. The “lookout” designated the crime as breaking and entering, then a misdemeanor.

      . In Stanley v. State, 230 Md. 188 the accused was arrested by Baltimore City Police for a misdemeanor on the basis of information received on the police radio. The broadcast was made on the basis of information given by a federal agent whose information was relayed to him by the federal agents in New York. The New York agents had observed the accused but, unlike the instant case, had not seen him commit the misdemeanor. The arrest was held to be invalid. In Prosser v. Parsons, 245 S. C. 493, 141 S. E. 2d 342 (1965), an action in tort for false imprisonment, a detail of ten game wardens stationed themselves in a certain area, maintaining contact by radio. One or more of them saw the plaintiff illegally hunting. The information was put on the radio and the plaintiff was arrested by one of the wardens who received the information but had not seen the misdemeanor committed. The court held that the arrest was valid, saying, 141 S. E. 2d 346, “ * * * an act taking place within the view of one officer was in legal effect within the view of the other cooperating officers * * * ”.

        . The assistant terminal manager of the company whose storehouse was broken testified that the office business hours terminated at 7:00 P.M. on 3 July 1965 at which time the office area in the building and the safe were secured. The operation of the business other than the office functions terminated for the weekend at 9:00 A.M. on 3 July at which time it was standard procedure normally followed “to seal all trucks and lock all gates and all overhead doors”. On 5 July, on going to the premises upon being notified of the breaking, he observed that the fence surrounding the area, the trailers in the storehouse area, the storehouse, the office in the storehouse and the safe in the office had been broken. The police •observed these breakings and tools on the floor by the safe on 4 July.

        . There was no evidence as to the amount of the inventory in the storehouse at the time of the breaking. The assistant terminal manager said, “There is merchandise that comes in daily and moves out the next day * * * We are in the motor freight business”.

      . The $384.76 and the $205 found on the appellant were given by the police to representatives of the company. By the ultimate ruling of the court the jury was precluded from considering the $205 found on the appellant.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FRANK THAYER BOBLITS v. STATE OF MARYLAND
    [No. 191,
    September Term, 1967.]

      Decided July 9, 1968.

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

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

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and James E. Kenkel, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

The Appellant was convicted of receiving stolen goods by a jury in the Circuit Court for Prince George’s County and sentenced to a term of four years.

The complaining witness, Claude H. Wickers, who was a numismatist in addition to his regular employment in a local public utility, testified that he returned to his apartment which he and his two young sons occupied about 5 :00 P.M. on May 6, 1966, and found the apartment had been ransacked, the safe had been broken into and his coin collection, valued at approximately $6800, which was kept therein, had been stolen, as well as a pistol and a suitcase. Pie testified that prior to the date of the theft, he did not know the Appellant or his wife, but about five or six months thereafter, he went to see Mrs. Boblits at her apartment dwelling, accompanied by a friend named Bovello. He stated that at that time Mrs. Boblits gave him eighteen or twenty coins and some books, which he identified as having been stolen from his safe on May 6, 1966. He was not permitted to relate any conversations between him and Mrs. Boblits, and the State did not offer the coins or books in evidence.

Detective Blount of the Prince George’s County Police Department testified that Mrs. Boblits gave him “a plastic bag with coins in it”; he could not remember the date this occurred; and he did not state where or under what circumstances the bag was turned over to him. When shown the bag in court, he admitted that he had placed no identifying marks thereon but stated that it “appears to be the bag of coins I turned over to Sergeant Cissel.” It was introduced as State’s Exhibit No. 2.

Lt. Thompson of the Prince George’s County Police Department testified that on June 14, 1966, Mrs. Boblits gave him four coins which were introduced into evidence as State’s Exhibit No. 1. (These four coins and the bag of coins were the only exhibits introduced by the State.) He gave no testimony regarding the circumstances under which they were received from Mrs. Boblits, other than that the transfer took place outside of her home.

Mrs. Boblits was called as a State’s witness but was excused when she exercised her right not to testify against her husband.

The State’s final witness was Eugene J. Bovello, who testified that he was a long-time friend of the complaining witness and that he had employed the Appellant in his electrical business for ten or twelve months during the year 1965. He further testified that several months after the coin collection had been stolen, the victim came to him and said that the Appellant was suspected of the theft. Bovello thereafter telephoned the Appellant, asked him if he had anything to do with stealing the coins; told him that Mr. Wickers was mainly interested in getting the coins back; and that the Appellant “said he didn’t know nothing about it at that time.” Sometime later, he thinks it was in August or September of 1966, Bovello telephoned the Appellant again. On that occasion “what I said was, ‘Frank, do you know anything about the coins?’ and he said something about a colored fellow had tried to sell him some coins and that he found out they were so hot he wouldn’t touch them, but that he would try to help Mr. Wickers get them back, if he could locate this colored fellow who had the coins.” He next saw the Appellant about Christmas time while on his way to work at which time he asserts that the Appellant told him, “You know, I tried to locate that colored fellow about four times like I told you, for your buddy, I’d try to help him.’ He said, T can’t locate him.’ He said, T sat up all night long, going to some place where these people meet,’ and he says he just couldn’t locate this man. He said something about his wife had maybe four or five coins at home that were religious coins and he didn’t know where she got them from, but that she had them.” Several days later, he and Mr. Wickers “went over to the house and waited for about three and a half hours for Frank to come home and he never did. We went over to pick up these four or five coins and she gave him some coins.” On cross examination he was asked by defense counsel if “she did not also at that time tell Mr. Wickers where she had gotten the coins ?” And he answered: “I don’t know where she got them, to be honest with you.” Defense counsel then asked him: “Do you remember any conversation with her to Mr. Wickers as to where she got them ?” Bovello answered: “I don’t remember. I could go into a lengthy conversation about what she said. She said she knew — .” The State’s Attorney thereupon interposed an objection which was sustained by the trial judge. The witness was thereupon excused and the State’s Attorney announced that this concluded the State’s case.

The Appellant did not take the stand nor put on any evidence and his Motion for a Judgment of Acquittal was denied.

In this appeal, he contends, inter alia, that the Court erred in denying his Motion since there was no legally sufficient evidence to sustain his conviction.

The four elements necessary to sustain a conviction for the crime of receiving stolen goods are as follows: (1) the property must be received; (2) it must, at the time of its receipt, be stolen; (3) the receiver must have guilty knowledge that the property was stolen; (4) his intent in receiving it must be fraudulent. Jordan v. State, 219 Md. 36; Cobb v. State, 2 Md. App. 230; McGlothlin v. State, 1 Md. App. 256.

The Appellant contends that the State failed to prove the first essential element of the crime for, he argues, there was no evidence that he ever received the coins which his wife turned over to the police and to the victim. The State, on the other hand, contends “that the coins were, by the Appellant’s verbal admissions to Mr. Bovello in his home, and therefore the rational inference which the jury could consider was that he [Boblits] in fact ‘received’ the stolen coins.”

It is true that the exclusive possession of recently stolen goods, unexplained, has been held to give rise to a factual inference that the possessor was guilty of receiving stolen goods when a showing is made that another person was involved in the theft. Debinski v. State, 194 Md. 355, 360; Scott v. State, 1 Md. App. 481, 493-494; Anglin v. State, 1 Md. App. 85, 94.

Assuming that the State has shown that the coins were recently stolen, within the meaning of the rule, we are not persuaded that the State has shown that the coins were exclusively in the possession of the Appellant as required by the rule. At no time was actual or physical possession of the coins shown to be in the Appellant; and there is no question that the wife, rather than the Appellant, had exclusive physical possession of the coins at the time she turned them over to the authorities and the victim. There was no evidence to show in what manner and under what circumstances Mrs. Boblits came into possession of the coins. The only manner in which the State has connected the Appellant with the coins is through the testimony of Bovello that the Appellant “said something about his wife had maybe four or five coins at home that were religious coins and he didn’t know where she got them from, but she had them.” We are not convinced that Appellant’s knowledge that his wife had four or five religious coins at home, which turned out to have been a part of the stolen coin collection, is sufficient evidence under the factual posture of this case to demonstrate that he had exclusive possession of the coins. This becomes more apparent when viewed in the light of a silent record as to how the wife obtained them.

It is true that in Anglin v. State, supra, we found that there was sufficient evidence to show that the husband in that case had exclusive possession of stolen goods found in his trailer home, which he shared with his wife, although he was not on the premises at the time they were discovered pursuant to a search warrant. There, however, it was shown that the husband had personally rented the trailer under an assumed name, he was seen carrying articles in and out of the trailer over a period of time, the contents of the trailer contained 25 watches, a dozen wallets, jewelry boxes, electric shavers, in fact, a “great array of merchandise, literally enough to stock a store * * There it was found that the wife’s actions and testimony showed that the goods were not hers or under her control.

In the case at bar, however, there was no direct proof that the Appellant lived in the apartment with his wife, or that he paid the rent, or that he was ever seen going in and out of the apartment. Moreover, the coins, apparently, were not of such bulk that they could not have been cached upon one’s person and there was no showing that the wife did not exercise control and dominion over them. Cf. Gamble v. State, 2 Md. App. 271, 275.

Thus, the proof here is in no way commensurate with the proof in Anglin, supra. In our opinion, it was insufficient to establish that the Appellant had exclusive possession of the coins which is an essential ingredient of the rule. If the rule could not legally be invoked by the jury, then, of course, the inference of fact permitted by the rule could not be properly drawn.

While this Court does not inquire into and measure the weight of the evidence, we are required, in reviewing the sufficiency of the evidence in a trial before a jury, to determine whether there was any relevant evidence, or proper inferences drawable therefrom, legally sufficient to take the case to the jury. Holt v. State, 3 Md. App. 298, 304; Agresti v. State, 2 Md. App. 278, 284. As Chief Judge Murphy stated in Cobb v. State, supra, at page 234:

“In every criminal case — whether tried before a jury or by the court sitting without a jury — evidence, to meet the test of legal sufficiency, must show directly, or support a rational inference of, the facts required to be proved; and the facts must be established, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created. Vincent v. State, 220 Md. 232; Spencer v. State, 1 Md. App. 264.”

There was no direct evidence to prove that the Appellant ■ever received the stolen coins or to connect him with the crime. Thus, in the absence of the permissible inference which may he drawn under the rule governing possession of recently stolen goods, there was no relevant evidence, or rational inference drawable therefrom, legally sufficient to support the jury’s finding in this case that the Appellant was guilty, beyond a reasonable doubt, of the crime of receiving stolen goods. On the record before us we have mere possibility, conjecture, speculation or suspicion and this is not legally sufficient to establish, to a moral certainty, the Appellant’s guilt. Cobb v. State, supra, 235.

Accordingly, the failure to grant the Appellant’s Motion for Judgment of Acquittal constitutes reversible error and the case will be remanded for a new trial.

Judgment reversed and case remanded for a new trial.


author: Anderson, J.,

text:
    DWIGHT CROMWELL v. STATE OF MARYLAND
    [No. 358,
    September Term, 1967.]

      Decided July 9, 1968.

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

      Gerald A. Smith for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William B. Yates, II, State’s Attorney for Dorchester County, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On October 31, 1967, the appellant, Dwight Cromwell, was tried in the Circuit Court for Dorchester County by a jury, Judge C. Burnham Mace presiding, and found guilty of turning in a false fire alarm in violation of Cambridge City Ordinance No. 268, § 13.13, at 2:26 a.m. on the 29th of June, 1967. Appellant was sentenced to one year imprisonment and fined $250.00 and costs.

Appellant raises two contentions on appeal:

1. That the trial judge erred in refusing defendant’s Motion for Judgment of Acquittal at the close of all the evidence.

2. That the trial court erred in instructing the jury “(T)hat the issue is, did Defendant Dwight Cromwell, give a false alarm of fire on the 29th of June, 1967 ?”

From the evidence adduced below, it could be found that on June 29, 1967, three fire reports were made at 2:00 a.m., 2:10 a.m. and 2:25 a.m., respectively. At 2:00 a.m., the dispatcher for the Dorchester County Volunteer Fire Department, Mr. Vivian S. Ewell, received a call reporting a fire at Schroeder’s Market on High Street. Mr. Ewell immediately sounded the fire siren. Moments before hearing the siren, Assistant Chief of Police, James C. Leonard, and Stanley Connor, a fire investigator from the State Fire Marshal’s office, observed the appellant inside the telephone booth at the intersection of High and Muir Streets, Cambridge. A check of Schroeder’s Market revealed no fire. Another call was received at 2:10 a.m., which was traced to a telephone booth in front of Ed’s Cash Market on High Street. Officers Cornish and Wilkins, upon approaching the booth, observed the appellant run from the booth. Then, at 2 :25 a.m., the third and final call was received. This call originated from the same station as the previous call. Lieutenant Dayton and Corporal Bramble of the Cambridge City Police, due to the prior calls, had the booth under observation and observed the appellant enter and make a call. The officers, placed the appellant under arrest, after a short scuffle.

Mr. Ewell identified the appellant’s voice as belonging to the caller.

Appellant testified and denied that he had committed the crime.

The specific crime charged is set out in Cambridge, Maryland Ordinance 268, § 13.13, which reads:

“Any person who gives false alarm of fire or by any means leads persons to believe that some building within the corporate limits of the City of Cambridge is on fire, shall be guilty of a misdemeanor, and upon conviction thereof before a Trial Magistrate for Dorchester County, Maryland, or the Circuit Court for Dorchester County, Maryland, shall be fined not less than Fifty Dollars ($50.00), and not more than three Hundred Dollars ($300.00), and to stand committed to the County Jail until such fine and costs are paid or be confined in the County Jail or the Maryland House of Correction for not less than three (3) months and not more than three (3) years or be both fined and imprisoned in the discretion of the Court.”

The corpus delicti of the aforenoted crime requires the State to prove: (a) that a false fire alarm was given; (b) that the individual giving the alarm knew that it was false; (c) that some person was falsely led to believe that a building was on fire; (d) that said building was located within the corporate limits of the City of Cambridge.

The thrust of the appellant’s primary contention is that, first, there was no proof that the report of fire allegedly made by appellant was false; and second, that there was no proof that the 2:25 a.m. report involved a building within the corporate limits of Cambridge. Our review of the record reveals-the presence of these fatal defects in the State’s case directed at the 2:26 a.m. report; therefore, the appellant’s point is well taken. Absent these two essential elements of proof, the State failed to prove the corpus delicti of the instant crime. We find, therefore, that the lower court erred in permitting the case to go to the jury as the evidence was fatally insufficient.

Since, however, the reason for this reversal is the insufficiency of the evidence, and this may be supplied by the State, we will, therefore, remand the case for a new trial. Williams v. State, 3 Md. App. 58, 62, 237 A. 2d 822, 824 (1968); Spencer v. State, 1 Md. App. 264, 269, 229 A. 2d 151, 154 (1967).

Judgment reversed and case remanded for a new trial.

      . As the State’s evidence tended to show the commission of three separate crimes, and as it elected only to prosecute for the last offense, this case is distinguishable from that line of cases where error in charging the date of a single offense in the indictment is ordinarily deemed harmless.


text:
    EUGENE COUSER v. STATE OF MARYLAND
    [No. 365,
    September Term, 1967.]

      Decided July 9, 1968.

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

      Louis Peregoff for appellant.

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

The appellant was convicted of breaking an outhouse with intent to steal goods of the value of $100 and upwards and breaking an outhouse and stealing goods of the value of $5 and upwards at a court trial in the Circuit Court for Baltimore County. A general sentence of imprisonment for a term of 10 years was imposed.

Robert L. Clements, the owner of a retail appliance and hardware store testified that he closed his store at 9:00 P.M. on 24 April 1967. He returned to the store about 1:30 A.M. 25 April and when he arrived the police were there. “My warehouse door was open; a side window had been pulled loose and removed, and I also discovered an attempt to get into the main building also by having had a lock broken, and the wire grating removed and jimmy marks on the window”. The open side window in the warehouse had been covered by a metal for sale sign fastened flush against the building with the printing on the sign facing inside the warehouse. There was no way “to reach inside the sign between the window and the sign.” The metal sign had been removed and was on the ground beneath the window it had covered. The sign had been over the window “at least two years”. He had not seen the appellant before and said that the appellant had never been in the warehouse. A RCA color television set valued at $480, a RCA dehumidifier valued at $68, thirteen power lawn mowers valued at $38 each, a Hoover washing machine, copper tone in color valued at $102 and three Frigidaire air conditioners valued at $115 each were missing. A Xeroxed copy of a card containing fingerprints of the appellant was admitted in evidence by stipulation.

Corporal Edward Vanik, a Baltimore County police officer, attached to the Crime Laboratory Unit, whose duties included the processing of crime scenes for latent fingerprints, arrived at the scene of the breaking about 2:24 A.M. on 25 April. He found two latent prints on the writing side of the sign but only one had enough “points in it for identification purposes”. That print was not more than one day old. It was offered in evidence for identification purposes but was never moved into evidence. Vanik further testified that he had fingerprinted the appellant at a later time and those prints were admitted in evidence.

Sergeant William B. Krause, a Baltimore County police officer assigned to the Crime Laboratory, Identification Section, had been comparing and identifying fingerprints for over 7 years. He had attended the F. B. I. Fingerprint Course, lectured on the subject and compiled a book on fingerprints used in the training of police personnel. He testified that on 21 July 1967 he compared the latent print obtained from the sign with the ink rolled prints of the appellant on the card, a copy of which had been admitted in evidence. “My conclusion was that the latent print and the left thumb of Eugene Couser was one and the same”. The appellant was arrested and his fingerprints obtained. The prints obtained incident to the arrest and the ink rolled prints used in the comparison with the latent print were found to be those of “one and the same person”, the appellant.

The appellant testified that he “could hardly say” where he was on 25 April 1967 but doubted that he was at the hardware store. He denied trying to break into the warehouse and his only explanation of his thumb print on the sign was that his job “did take me out in this area * * * I junks, and I works down — I do day’s work down, down near * * * Sparrows Point”. But then he said that “on one particular date” when he and another man were junking in a pick-up truck he tried to get some metal signs off garages in the area. “If those are definite my prints, then it’s a possibility that my prints could have been left on the sign. This is the only explanation I give for my prints being on there”. On cross-examination he admitted to an extensive criminal record — a robbery conviction, two burglary convictions and convictions of assault by stabbing a police officer and carrying a deadly weapon concealed.

The appellant contends that the evidence was not sufficient to sustain the convictions because the metal sign and the lifted latent fingerprint were not introduced into evidence. We think it clear that the evidence was sufficient to prove the corpus delicti of the breaking with intent to steal and breaking and stealing as charged. The breaking was clearly shown. The value of what was proved to have been stolen was sufficient to show both the intent to steal goods of the value of $100 and upwards and the theft of goods of the value of $5 and upwards. And we think that there was legally sufficient evidence or rational inferences therefrom on which the trial court could find beyond a reasonable doubt that the appellant was the criminal agent. It was undisputed that the print found on the sign, which covered the window through which entrance was gained, was that of the appellant. He was therefore at the scene of the crime. The print was not more than one day old so he was at the warehouse within that period. The print was on the side of the sign that was against the building. The sign was fastened to the building so as to cover the open window in such a way that the print could be impressed from the outside of the warehouse only by removing the sign. It is a rational inference therefrom that the appellant removed the sign and thus committed the breaking. As he committed the breaking he was the criminal agent. See Lawless v. State, 3 Md. App. 652; McCargo v. State, 3 Md. App. 646. We think it immaterial that the metal sign from which the latent print of the appellant was lifted and the lifted latent print were not in evidence. Testimony with regard to the sign, the finding and lifting of the latent print, its age and the results of the comparison of it with rolled inked prints of the appellant came into evidence without objection. This testimony was sufficient without the physical introduction of the sign and the latent print, and the failure to introduce them went at most to the weight of the testimony. See Banks v. State, 228 Md. 130. We note that the failure to place the sign and print in evidence was not raised below. Md. Rule, 1085. The judgment of the lower court on the evidence was not clearly erroneous. Md. Rule, 1086.

The appellant also contends that the failure of the State to produce all of the witnesses who testified before the grand jury which indicted him was a violation of his constitutional rights in that he was thus not confronted with the witnesses against him and in that their evidence was thus suppressed. This question was not raised at the guilt stage of the proceeding, although the appellant so complained to the court after the verdict and at the time he was sentenced. In any event, it is without merit. Under Md. Rule, 717, the names of the witnesses on whose evidence an indictment is based shall be endorsed thereon but there is no requirement, constitutional or otherwise, that they be called to testify by the State. Had the appellant desired their testimony he could have called them. The contention that by the State not calling them there was a suppression of evidence and a denial of the right of confrontation is. frivolous.

In the appellant’s brief eleven pages are devoted to questions,, designated as raised “sua sponte” by him, set forth by his. counsel verbatim at his request. Insofar as we are able to comprehend them they encompass matters pertaining to the sufficiency of the evidence and the production of witnesses, hereinbefore determined, the weight of the evidence, which is for the-trier of facts, and questions not properly before us as not tried and decided by the lower court. While we appreciate the position in which appointed counsel frequently find themselves in representing those accused of crime, we are constrained to remark that we see no compelling reasons to include in the brief, -at the expense of the State, a verbatim discourse of the appellant of no merit to his appeal.

Judgments affirmed.

      . The testimony of Clements was that the sign could not be touched from the inside of the building because merchandise in the warehouse was piled in front of the window “all the time”. He also said that prior to the breaking the appellant had not been in the warehouse.


text:
    JERRY DENNIS v. WARDEN, MARYLAND PENITENTIARY
    [No. 117,
    September Term, 1967.]

      Decided July 10, 1968.

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

Dennis was convicted of murder in the first degree by a jury in the Criminal Court oí Baltimore and sentenced to life imprisonment on May 11, I960. No appeal was taken from that judgment.

On April 8, 1965, Dennis filed a petition under the Post Conviction Procedure Act raising eleven grounds for relief, one of which was that his oral and written statements made to the police at the time of his arrest were involuntary and were improperly admitted into evidence at his trial. After conducting an evidentiary hearing on the petition, the court concluded that Dennis’s statements were voluntarily made, and that the other contentions raised in the petition were likewise lacking in merit. Dennis’s application for leave to appeal to the Court of Appeals of Maryland was granted as to two of the issues raised in the petition, viz; (a) whether his statements were voluntary, and (b) whether his guilty plea made at the preliminary hearing was referred to at his trial. As to these questions the court remanded the case to the Criminal Court of Baltimore for the taking of additional testimony and for a full hearing on the voluntariness, vel non, of Dennis’s oral and written statements. Dennis v. Warden, 243 Md. 104. In its opinion granting the application, the Court noted that Dennis was one of four individuals tried, at a separate trial, for the murder and robbery of one Lawrence Doran North; that one of Dennis’s co-defendants was John Ledbetter, who, like Dennis, had confessed his involvement in the crime; that Ledbetter’s confession was subsequently found involuntary by the District Court of Maryland following an evidentiary hearing upon a petition for habeas corpus, Ledbetter v. Warden, 239 F. Supp. 369, that court ordering, in the alternative, a retrial or Dennis’s release.

In conformity with the decision of the Court of Appeals, the lower court conducted further evidentiary hearings on Dennis’s petition on February 2 and August 24, 1967, at the conclusion of which it held that Dennis’s guilty plea had not been referred to during his original trial, and that Dennis’s statements were voluntarily made.

Dennis then filed his present application for leave to appeal to this Court and we promptly ordered a transcript of the post conviction hearings of February 2, 1967, and August 24, 1967. Our review of Dennis’s petition, and of the hearing transcripts, convinces us that there is no evidence to support appellant’s contention that his guilty plea entered at the preliminary hearing was referred to at his original trial. We think, however, that the question of whether Dennis’s statements made to police, both oral and written, were voluntarily made should be resolved only after the issue has been fully briefed and argued before this Court. We shall, therefore, appoint counsel to represent Dennis with respect to this issue, and shall transfer the case to the regular appellate docket of this Court and hear it at our earliest practicable session after the filing of briefs by the parties.

Application for leave to appeal granted as to the question of the voluntariness, vel non, of Dennis’s oral and written statements; leave to appeal denied as to all other contentions, the proceedings on appeal to be in accordance with this opinion.

      . The State appealed the District Court’s judgment to the United States Court of Appeals for the Fourth Circuit. That Court affirmed the lower court’s judgment, 368 F. 2d 49, and the Supreme Court denied the State’s petition for a writ of certiorari, 386 U. S. 971.


text:
    RONALD HARRY SMITH v. WARDEN, MARYLAND PENITENTIARY
    [No. 144,
    September Term, 1967.]

      Decided July 15, 1968.

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

Ronald Harry Smith seeks leave to appeal from the denial of relief under the Uniform Post Conviction Procedure Act by Judge T. Hunt Mayfield, presiding in the Circuit Court for Howard County, after an evidentiary hearing at which he was represented by appointed counsel.

The applicant was convicted by a jury in the Circuit Court for Howard County of first degree murder on 4 June 1966. A life sentence was imposed. He did not appeal from the judgment. On 10 July 1967 he filed a petition for relief under the U.P.C.P.A. in which he presented eight allegations, which in substance were as follows:

1) that he did not receive a fair trial because of unfavorable publicity through newspapers and other news media, and that the Judge was prejudiced.

2) that the State’s Attorney had made certain remarks in his opening statement to the jury which were not borne out by the evidence and which prejudiced the jury.

3) that the court erred in allowing photographs of the deceased victim to be admitted into evidence.

4) that the court should have granted a separate jury trial on the question of his insanity; that the issue of insanity, as well as the issue of guilt or innocence, were both submitted to the same jury, which jury, in determining his guilt, had overlooked the issue of insanity.

5) that the Director of Clifton T. Perkins Hospital and the representative of the Department of Mental Hygiene were prejudiced in their testimony.

6) that the evidence admitted at his trial was obtained through illegal search and seizure and was, therefore, improperly admitted into evidence.

7) that the court erroneously admitted into evidence his confession in the absence of proper warning, contrary to the rule of Miranda v. Arizona, 384 U. S. 436.

8) that the Anne Arundel County Police Department had withheld pertinent information, which if presented, would have been sufficient to have placed considerable doubt on the reliability of certain witnesses.

The application for leave to appeal does not contain a statement of the reasons why the order should be reversed or modified as required by Md. Rule BK46b, and may be denied on this ground alone. Goetzke v. Warden, 1 Md. App. 3. In any event, the allegations provide no grounds entitling the applicant to relief.

The first, second, third, fifth, sixth and seventh allegations are deemed to have been waived as they could have been raised on direct appeal, there being no special circumstances shown to excuse the failure to raise them and the presumption that the applicant intelligently and knowingly failed to make them not being rebutted. Md. Code, (1967 Repl. Vol.) Art. 27, § 645A(c). Section 645A(d) is not applicable. Also the first, second and fifth allegations are made without adequate specification and as bald allegations afford no grounds for relief. Ross v. Warden, 1 Md. App. 46. With further regard to the sixth allegation a contention as to illegal search and seizure is properly raised on direct appeal and failure to take such appeal precludes it from being raised in a post conviction procedure. Archer v. Director, 1 Md. App. 18. With further regard to the seventh allegation the applicant’s trial commenced on 31 May 1966. Miranda v. Arizona, 384 U. S. 436, is applicable only to cases the trial of which began after 13 June 1966. Johnson v. New Jersey, 384 U. S. 719; Boone v. State, 3 Md. App. 11.

With regard to the fourth allegation the docket entries show the verdict of the jury to have been: “Guilty of Murder in the first degree, Sane now and Sane at the time of the Commission of the crime.” The applicant was not entitled to a separate jury trial on the issue of insanity. See Md. Code, (1964 Repl. Vol.) Art. 59, § 7; McCracken v. State, 2 Md. App. 716.

With regard to the eighth allegation, “[W]hile a claim of suppression by the State of evidence tending to exculpate a defendant is a ground for relief under the Act, there remains the requirement that petitioner set out statements of fact which support the allegation and which he intends to prove at the hearing.” Tucker v. Warden, 243 Md. 331, 333. Such was not done either in the lower court or in the application for leave to appeal.

Application denied.

      . Chapter 709, Acts 1967, which repealed former §§ 7-12 and enacted new §§ 7-3 2 in lieu thereof is applicable to all cases tried or scheduled for trial on and after 1 June 1967. We think that under both the former and present statute the jury trying the case also determines the issue of insanity properly before it.


text:
    SAMUEL R. HANCE v. DIRECTOR, PATUXENT INSTITUTION
    [No. 145,
    September Term, 1967.]

      Decided July 15, 1968.

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

This application for leave to appeal from an order of the Criminal Court of Baltimore denying the applicant post conviction relief contends that:

1. The hearing court was clearly erroneous in that there was insufficient evidence to support its findings of December 8,1967.

2. The hearing court erred in that it was clearly erroneous in refusing to hear testimony at the remand hearing, in order to make explicit findings of fact and conclusions of law on the question of whether Hance’s statement was voluntary in light of the single standard governing the admission of extrajudicial statements — that of voluntariness — to be determined by all of the circumstances surrounding the making of such statement consistent with the opinion filed September 29, 1967 by the Court of Special Appeals in State v. Hance, 2 Md. App. 162.

The petitioner was convicted of robbery with a deadly weapon in the Criminal Court of Baltimore on August 21, 1961 and was sentenced to not more than fifteen years in the Maryland State Reformatory for Males. He took no direct appeal. On July 9, 1963 he filed a petition under the Uniform Post Conviction Procedure Act. After a hearing before Judge Anselm Sodaro, relief was denied on October 24, 1963. No application for leave to appeal was filed. On August 8, 1966 petitioner filed a second petition and a hearing thereon was held on November 3, 1966 before Judge Meyer M. Cardin. Following this second hearing, the petitioner was granted a new trial, Judge Cardin holding, inter alia, that the confession was involuntarily given and hence was inadmissible.

From the order granting a new trial, the State filed an application for leave to appeal. In State v. Hance, supra, we granted the State’s application for leave to appeal, reversed Judge Cardin’s order, and remanded the case for further proceedings so that “Judge Cardin may make explicit findings of fact and conclusions of law on the question of whether Hance’s statement was voluntary in light of the single standard governing the admission of extrajudicial statements — that of voluntariness— to be determined by all of the circumstances surrounding the making of such statement.” 2 Md. App. at pages 168-169. We further noted that the court on the remand should, as a preliminary matter, rule on the question of “whether Hance knowingly and intelligently waived the voluntariness question by failing to raise it either on direct appeal, or in his first petition for post conviction relief.”

On November 9, 1967 Judge Cardin conducted a hearing in accordance with this court’s remand in Hance, at which time applicant testified that he did not waive the voluntariness question by failure to raise it on direct appeal, or in his first post conviction petition, because he was ignorant of the fact that he could raise that contention. In his opinion filed on December 8, 1967, Judge Cardin noted that under the Post Conviction Procedure Act, Section 645A (c) of Article 27 of the Maryland Code (1967 Repl. Vol.), a subsequent petition under the Act could be dismissed on the ground of waiver where the petitioner made no adequate showing in such subsequent petition either of “special circumstances” to excuse the failure to raise the allegations in prior proceedings, or to rebut the presumption that the petitioner intelligently and knowingly failed to raise such allegations. Judge Cardin stated his belief that applicant was not ignorant of his right to raise the voluntariness question; that he was aware that grounds for relief, when timely raised, are proper in a petition under the Act; that the petitioner was cognizant of his right to raise such contention, since he raised eleven grounds in his original petition; and that the petitioner set forth no special circumstances to rebut the presumption of waiver.

We find no reason, under the circumstances of this case, to disagree with the lower court’s conclusion applying waiver principles under Section 645A (c).

Despite the lower court’s conclusion that the voluntariness question had been waived as above indicated, it nevertheless considered the issue on its merits and found from the evidence that appellant’s confession was voluntary. Since the preliminary question concerning the waiver question was decided against the applicant, there was, of course, no need to decide the voluntariness question. Hence, there was no need to hear further testimony on the question of the voluntariness of applicant’s confession, and applicant’s contention that the lower court erred in failing to permit such additional evidence is therefore without merit.

Application denied.

      . To the extent that the court based its finding of waiver upon former Rule BK 48 and Kiah v. Warden, 235 Md. 681, it did so erroneously. The proper basis for application of waiver principles is found in Section 645A (c) of Article 37 and present Rule BK 48, amended on June 33, 1967, effective September 1, 1967. See Jones v. Warden, 2 Md. App. 343.


text:
    JAMES EDWARD WILLIAMS v. STATE OF MARYLAND
    [No. 212,
    September Term, 1967.]

      Decided July 23, 1968.

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

      Benjamin L. Brown for appellant.

      H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Raymond M. Paby and William R. Lenhard, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Per Curiam.

Appellant was convicted of murder in the first degree and robbery with a deadly weapon by a jury in the Criminal Court of Baltimore and sentenced to life imprisonment on the murder charge and twenty years concurrent for the robbery offense. He contends on this appeal (a) that the trial judge erred in permitting the State’s Attorney to impeach a defense witness by proof of prior contradictory statements without requiring that a proper foundation be laid, (b) that prejudicial error was committed when the State’s Attorney, in his closing argument to the jury, commented on. the absence of a defense witness, and (c) that the trial judge should have granted appellant’s motion for judgment of acquittal and his motion for judgment N.O.V.

The evidence adduced at the trial showed that at approximately 12:45 a.m. on October 31, 1964, Leonard Lipsitz, owner and operator of a tavern in Baltimore City, was shot and killed during a holdup. Appellant was identified by two eyewitnesses as the person who shot the deceased. Two other State witnesses testified to appellant’s presence in the tavern earlier on the night of the crime. Appellant presented witnesses in his behalf whose testimony indicated that he was not in the tavern on the night of the crime, and that he was engaged in a card game with friends at the time the holdup and homicide occurred.

At the conclusion of all the testimony, including the State’s rebuttal testimony, the appellant was permitted to call William Price as a witness in his behalf. Price testified that he was in the tavern approximately four to five hours prior to the holdup, but did not, at that time, see the appellant or the other State witnesses who testified to appellant’s presence in the tavern on the night of the crime. After Price concluded his testimony, the State called in rebuttal a police officer who testified that shortly before the date of the trial, he spoke with Price who told him that he did not remember whether he was in the tavern on the night of the crime.

While appellant’s contention that the State failed to lay a proper foundation for the impeachment of Price by his prior contradictory statement is well made, Sanders v. State, 1 Md. App. 630, we do not think that such failure so prejudiced the appellant as to constitute reversible error, since Price’s testimony was itself of virtually no probative value and the State’s impeachment of it therefore did no substantial harm to appellant’s case.

Nor do we find merit in appellant’s contention that reversible error was committed by the State’s Attorney when, in closing argument, he commented to the jury relative to the absence of a missing defense witness. Appellant’s objection to the State’s Attorney’s remarks was sustained and the court admonished the jury to ignore the comment. As appellant’s objection was sustained, and as there was no motion for a mistrial, there is nothing before this court to review. See Halstead v. State, 4 Md. App. 121; Maryland Rule 1085.

Also without merit is appellant’s contention that the court erred in not granting his motion for a judgment of acquittal offered at the end of the entire case. While there were some inconsistencies and discrepancies in the testimony of the State’s witnesses, they were not of such a nature to be wholly contradictory and went only to the weight of their testimony. We hold that the testimony of the witnesses who identified appellant as the person who shot the deceased was clearly sufficient to carry the case to the jury, the alibi testimony offered by appellant being a matter to be weighed by the jury. See Bury v. State, 2 Md. App. 674; Logan v. State, 1 Md. App. 213.

After the jury’s verdict was returned, the appellant filed a motion for judgment N.O.V., which was denied. Appellant now contends that the denial constituted error. We disagree. Quite apart from the fact that the evidence was clearly sufficient to support the conviction, we find no basis in the Maryland Rules for a motion for judgment N.O.V. in a criminal case tried before a jury. Maryland Rule 563 authorizing such motions is not applicable in criminal cases. Rule 701, entitled “Criminal Causes,” provides that the rules in that Chapter are intended to provide for the just determination of every criminal case. There is no provision in Chapter 700 for a motion for judgment N.O.V. and it is clear from Rule 1, which delineates the applicability of the rules in Chapters 100-600, that Rule 563 does not apply to criminal cases.

Judgments affirmed.

      . The witness in question was allegedly playing cards with the appellant at the time of the crime. Appellant apparently could not locate her at the time of trial and she was not therefore called as a witness. The State’s Attorney, in his summation to the jury, mistakenly stated that this individual had been seen with another defense witness only a few days prior to trial. While there is nothing in the record to support the State’s Attorney’s statement to the jury, we are satisfied that it was not an intentionally erroneous remark. The missing witness was located after the trial and testified on appellant’s behalf on the motion for a new trial. Her testimony did not materially assist the appellant since it pertained to the night after the crime and therefore provided little value to the appellant’s alibi.


author: Morton, J.,

text:
    THEODORE R. BRACEY v. STATE OF MARYLAND
    [No. 262,
    September Term, 1967.]

      Decided July 23, 1968.

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

      G. Denmead DeViness, with whom were Nelson R. Kandel and Stuart E. Hirsch on the brief, for appellant.

      Bred Oken, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Leroy W. Carroll and Stephen Montenarelli, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant was indicted for possession, 1st count, and control, 2nd count, of heroin and by an addendum to the indictment was warned that the State intended to prosecute him for the offenses as a second offender, it having evidence that he had been formerly convicted of violation of the narcotic laws. He elected a court trial on the offenses for which he was indicted and to have the issue of whether he was a second offender tried concurrently with the trial on those offenses. Md. Rule, 713. At the trial it was stipulated that the appellant had been previously convicted of violation of the narcotic laws. He was found guilty under both counts, determined to be a second offender, and sentenced generally to imprisonment for a term of 5 years. Md. Code (1967 Repl. Vol.) Art. 27, § 300.

The appellant contends on appeal from the judgments that the evidence was not sufficient to sustain the convictions. He does not argue that the evidence was not sufficient for the trial court to find beyond a reasonable doubt that he was in possession and control of “a small manila envelope containing sixteen gelatin capsules, two of which had white powder substances in them” and from the evidence adduced by the State we think that the court could properly so find. A detective assigned to the Narcotics Squad testified that he saw the appellant drop the envelope containing the capsules. The officer recovered the envelope. The “chemist report of analysis” showed the substance found in two of the capsules to be heroin hydrochloride, “net weight of sample received — traces; net weight after analysis— traces.” No prohibited narcotic drug was found in the other fourteen capsules. The appellant urges that to sustain the conviction the narcotic drug must have been in such quantity as to be capable of being useable under the known practices of narcotic addicts. He claims that the “traces” of heroin in the capsules were useless for either sale or consumption and thus was not a narcotic drug within the meaning of the statute.

Md. Code (1967 Repl. Vol.) Art. 27, § 277, provides: “It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug * * *” with exceptions not here applicable. “Narcotic drugs” means opium and “opium” includes heroin. Code, Art. 27, § 276(m) and (o). We find nothing in the statutes enabling us to say that it was the legislative intent that the quantity of the proscribed substances be determinative of whether or not they are “narcotic drugs” and on the contrary think it clear that, if a substance is within the statutory definition of a “narcotic drug”, the quantity is immaterial with regard to its illegal possession or control. Thus there need be only such quantity, no matter how minute, sufficient to make possible a proper determination that it is a narcotic drug in order to sustain a conviction upon proof of its possession or control. We are supported in this view by decisions of the Court of Appeals. In Peachie v. State, 203 Md. 239, in affirming a judgment on convictions which included unlawful possession and unlawful control of a narcotic drug, the Court said that the cases cited therein “clearly recognize that the duration of the possession and the quantity possessed are not material.” page 243. In Mazer v. State, 212 Md. 60, in which it was contended that the sample of the narcotic drug, cannabis, taken from the defendant’s car should not have been admitted in evidence because of its minute quantity, about 15 grams, of which 2 grams were used in a chemical test, the Court said, at 65, in affirming the judgment upon conviction of unlawful possession, “The size of the specimen is clearly not controlling.” In Shields v. State, 229 Md. 153, the evidence was held to be sufficient to sustain convictions of possession and control of heroin where two capsules were found on chemical analysis to contain “a residue of heroin”. In Mason v. State, 242 Md. 707, although the precise question as to quantity was not raised, judgment upon convictions of unlawful possession and control of heroin was affirmed where the evidence was that the chemical tests showed “traces of heroin.” We are not persuaded to the contrary by the cases in other jurisdictions cited by the appellant which, in the main, were controlled by statutes proscribing or interpreted as proscribing the possession of substances having a narcotic “potentive.”

In the instant case we find that the evidence was sufficient to prove the corpus delicti and the criminal agency of the appellant. Md. Rule, 1086.

Judgments affirmed.


text:
    HARVEY LEE STEWART v. STATE OF MARYLAND
    [No. 278,
    September Term, 1967.]

      Decided July 23, 1968.

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

      Francis X. Gaegler for appellant.

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

delivered the opinion of the Court.

Appellant was tried by a jury in the Circuit Court for Prince George’s County on an indictment charging rape, assault with intent to rape, and assault and battery. He was found not guilty of rape, but guilty of assault with intent to rape without capital punishment. No verdict was returned by the jury on the assault and battery charge. The court sentenced appellant to twenty years under the jurisdiction of the Department of Correction.

The facts pertinent to a determination of the issues raised on appeal are essentially these: Appellant was operating a taxi cab in Washington, D.C. at approximately 1:00 a.m. on December 27, 1964 when, at a bus terminal, the prosecuting witness, a Captain in the Army Air Force, asked him to transport her to a designated shuttle bus stop in the District in order that she might catch a bus to Andrews Air Force Base. The prosecuting witness testified that she was a stranger to the Washington area and therefore not familiar with the streets; that after they had been riding for a while, she saw a sign indicating that they were entering Maryland and she sensed that something was wrong; that she thereafter tried to j ump out of the cab on several occasions but was restrained by the appellant who told her to behave; that appellant parked his cab in a secluded spot, got in the back seat, and pulled her into the back seat with him ; that she fought and kicked, but appellant succeeded in partially unclothing her; that by striking the appellant a blow under his chin, she was able to hurt him and thereby succeeded in preventing appellant’s penetration of her person; that she then re-clothed herself, soon after which appellant said, “I am sick of this nonsense,” slammed her to the seat and knocked her unconscious. The prosecutrix further testified that when she regained consciousness she found that her clothing had again been removed, and that appellant was kissing her; that she then bit his tongue, after which appellant struck her again and she lost consciousness; that when she again regained consciousness, appellant was in the act of having sexual intercourse with her and to prevent further beating, she agreed to cooperate with him in the intercourse. Afterwards, appellant drove the prosecuting witness to the gates of the Air Force Base. The prosecutrix did not tell the military police at the gate that she had been raped. She was, however, promptly taken to the Base hospital, where she stated that she had been raped.

Appellant testified in his own behalf, admitted that he had sexual relations with the prosecutrix, but claimed that it was with her consent. He testified that at the request of the prosecutrix, he agreed to drive her to Andrews Air Force Base; that on the way, they conversed amicably; that the prosecutrix placed her hand on his thigh; that shortly thereafter, he stopped his cab, they kissed for a time, got into the back seat, discussed the availability of a place to stay for the night, then had sexual relations in the automobile. The appellant further testified that after the intercourse, the prosecutrix became furious when he told her he was going to take her to the Base and then go home. The appellant admitted striking the prosecutrix when she bit his tongue.

I

Appellant contends that the charge of assault with intent to rape, of which he was convicted, merged into the criminal act of rape, of which he was acquitted, and consequently, his conviction for the former offense cannot stand. He urges that since it is uncontradicted that the intercourse did occur, he could not be convicted of assault with intent to rape, at least unless it was shown from the evidence that after initially assaulting the prosecutrix by pulling her into the back seat with the intent to rape her, he then entirely abandoned his intention to commit the greater crime of rape. Appellant claims that there was no evidence to show that he had abandoned his purpose to have intercoursé with the prosecutrix and that the entire episode must be treated as one transaction and not as two separate and distinct crimes.

We think the appellant misconceives the nature and applicability of the doctrine of merger. The true test of merger under the modern doctrine is whether one crime necessarily involves, the other, vis., when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense. Tender v. State, 2 Md. App. 692; Dunlap v. State, 1 Md. App. 444. While the doctrine of merger may be applicable under proper factual circumstances to merge a conviction of assault with intent to rape into a conviction for rape, the doctrine applies only to preclude multiple convictions on merged convictions. Lievers v. State, 4 Md. App. 219; Gee v. State, 2 Md. App. 61. See also Holtz v. State, 1 Md. App. 358. As the doctrine is applicable only when there have been convictions on each offense, and as the appellant was not convicted of rape, into which he alleges the assault with intent to rape merged, the doctrine has no application. For these same reasons, we recently declined to merge a conviction of assault with intent to rob into the crime of robbery where the defendant had not been convicted of robbery. See Bryant v. State, 4 Md. App. 572.

II

Appellant next contends that since the evidence showed that the act of intercourse was consummated, the court erred in failing to grant his motion for judgment of acquittal on the charge of assault with intent to rape. We think the motion was properly denied. The evidence was such that the trier of fact might have concluded that the prosecutrix, after being assaulted and resisting for a time, thereafter consented to the intercourse, however reluctantly, (see Clark and Marshall Crimes, Sixth Edition, Sec. 11.01) or that there were, in fact, two separate and distinct episodes involved, one of which constituted an assault with intent to rape, but the other of which was not a rape, since the subsequent intercourse was eventually had with the prosecuting witness’s full consent. As each count of an indictment is regarded as if it were a separate indictment, the inquiry is whether the evidence is sufficient to support a conviction on that count without regard to the disposition of other counts. See Leet v. State, 203 Md. 285. Accordingly, we see no error in the court’s refusal to grant appellant’s motion for a judgment of acquittal on the charge of assault with intent to rape.

Ill

Appellant next contends that he was “denied a fair trial by jury and due process of law in the Court’s method of handling the deliberation of the jury.” More specifically, he maintains that the jury retired to consider its verdict at 4:25 p.m.; that it deliberated until 6:32 p.m., when it sent a note to the court requesting to hear additional testimony; that after the court denied this request, and ascertained that the jury could not reach its verdict by 7:00 p.m., it provided only sandwiches to the jury and not a full meal; that the jury deliberated until 10:37 p.m., at which time the court gave it the so-called “Allen charge” over appellant’s objection; and that it was not until 12:05 a.m. that the jury’s verdict was returned. On these facts, appellant contends that the jury was weary, had been intimidated by the court’s delivery of the Allen charge, that their long confinement had a depressing effect, and that their deliberations were conducted without having the benefit of a full meal.

In Plank v. Summers, 203 Md. 552, it was held at pages 554-555 that “no case should be carried on for such a length of time that the judges, jury and lawyers cannot properly function,” but that “the widest discretion has been given the trial courts in the conduct of trials and this discretion should not be disturbed unless it is clearly abused.” On the record before us, we see no such abuse of discretion, particularly since there was no showing that anyone was weary, hungry, depressed or otherwise adversely affected by the length and circumstances of the deliberation. That the Allen charge as delivered by the court in this case is proper is now entirely well settled in Maryland, both in criminal and civil cases. See Leupen v. Lackey, 248 Md. 19.

IV

Appellant’s final contention is that the court erred in admitting evidence of his prior conviction for assault in 1959 since it was done for the purpose of showing a similar act and not for the purpose of impeachment, and since the question propounded by the State’s Attorney was whether he was “charged” with that offense, rather than convicted of it. The record does not indicate the purpose for which the question was asked and we cannot assume on the record before us that it was asked for a purpose other than to impeach the appellant’s credibility as a witness. See Wethington v. State, 3 Md. App. 237. It was developed on further examination of the appellant that he was not only “charged” with the offense, but convicted of it, and paid a $1.00 fine. Under the circumstances, we see no error in the admission of this evidence.

Judgmen~t affirmed.

      . The jury’s silence on this count of the indictment is the equivalent of a verdict of not guilty. See Jenkins v. State, 3 Md. App. 243.

      . While appellant makes no argument that an acquittal of rape and a conviction of assault with intent to rape are necessarily inconsistent, it is settled that a conviction on one count is not necessarily erroneous because of an inconsistent acquittal on another count. See Ledbetter v. State, 224 Md. 271; Moore v. State, 3 Md. App. 676.

      . The trial judge’s Allen charge was as follows:
      “You are instructed that there are many cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, as a result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, each one of you should examine the question submitted with candor and with a proper regard and deference to the opinions of the others. It is your duty to decide the case, and if you can conscientiously do so; and you should listen with a disposition to be convinced to each other’s argument.
      “If your views are contrary to those of the vast majority, you should consider whether your views, which make no impression on the minds of so many, equally intelligent jurors, are correct.
      “So, you will return to the jury room and deliberate further in the light of these additional instructions.”