text:
    JAMES EDWARD LEONARD BURLEY, JR. v. STATE OF MARYLAND
    [No. 107,
    September Term, 1968.]

      Decided November 20, 1968.

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

      Joseph G. Koutz for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Peter G. Ward, Assisant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

THE DETERMINATION OF THE COMPLICITY OF A WITNESS

■ An accomplice is one who knowingly, voluntarily, and with common criminal intent with the principal offender, unites with him in the commission of the crime either as a principal or as an .accessory before the fact. Watson v. State, 208 Md. 210. An accomplice is a competent witness; his testimony is admissible even though he has been found guilty, confessed his guilt or testifies under a promise of immunity. See Kitt v. State, 2 Md. App. 306. His credibility and the weight to be given his testimony is a matter for the trier of fact as with other witnesses. But “(i)t is a firmly established rule in this State that a person accused of crime may not be convicted on the uncorroborated testimony of an accomplice.” Watson v. State, supra, at 217. There muát be corroborative evidence supporting the testimony of the accomplice as to some of the material facts, tending to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself. Boone v. State, 3 Md. App. 11, 19-20. It therefore becomes material whether, in a particular case, a witness is an accomplice and, if so, whether there was sufficient corroboration. The generally accepted test as to whether a witness is an accomplice is whether he himself could have been convicted for the offense, either as. principal or accessory before the fact. 2 Wharton’s Criminal Evidence (12th Ed. Anderson) § 448, p. 230. The fact that a witness is an accomplice must be shown by proof, like any other fact, but the burden of proving that a witness is an accomplice is on the defendant who asserts it. Campbell v. State, 221 Md. 80, 85; Lusby v. State, 217 Md. 191, 201. All competent evidence tending to connect the witness with the commission of the crime in such a manner as to constitute him an accomplice is admissible to prove that fact, including the testimony of the accused. 23 C.J.S., Criminal Law, § 796, pp. 18-19. In the absence of statutory provisions (there are none in Maryland) it is generally accepted that only a preponderance of the evidence is necessary to prove that a witness for the prosecution is an accomplice; it is not necessary to prove that fact beyond a reasonable doubt to invoke the rule requiring corroboration. When the evidence relating to whether or not a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact and in a jury case should be submitted to the jury with proper instructions. 2 Wharton’s Criminal Evidence, supra, § 446, pp. 225-226. See cases cited in 23 C.J.S., Criminal Law, § 796c, p. 20, notes 31-34. So when a witness connected with the crime committed testifies to facts exculpating him or by his testimony endeavors to show his innocent intention or denies criminal complicity, his relation to the crime becomes a question for the determination of the trier of fact. Therefore, our function on appellate review, when the question is properly before us, is a matter of the sufficiency of the evidence. In a case tried by the court sitting as a jury, we determine whether the court was clearly wrong in its judgment on the evidence, Md. Rule 1086; in a case tried by a jury, we determine whether the court erred in submitting the evidence to the jury, Md. Rule 755. Cases in this jurisdiction support what we have said as to the determination of the complicity of a witness and as to our function on appeal. In Watson v. State, supra, a case tried by the court, where the contention was that the witness was an accomplice and that her testimony was not corroborated, the Court of Appeals, upholding the finding of the lower court, found that the evidence was not sufficient to prove that the witness was a principal or accessory before the fact and thus not an accomplice, citing Rule 7(c), now Rule 1086. In Lusby v. State, supra, the Court held that there was no proof that the witness was an accomplice. It is clear that the rationale of the opinion was that there was sufficient evidence from which the jury could find that the participation of the witness in the crime was not voluntary; therefore she could not have been convicted of the offense of which the defendant was charged. See Saldiveri v. State, 217 Md. 412, 420. In Jefferson v. State, 218 Md. 397, a trial by the court, the Court thought there was evidence that would support a finding that the prosecuting witness was not an accomplice, and held that the verdict was not clearly erroneous. In Campbell v. State, supra, the defendant, convicted by the court, contended on appeal that a witness was an accomplice and that her testimony could not be used to corroborate the testimony of an accomplice who had pleaded guilty to the crime. The Court noted that the point had not been raised below or in brief but was suggested in argument on appeal. Stating that the burden of proving a witness is an accomplice is on the defendant who asserts it, the Court found that not only did the defendant not attempt to prove that the witness was an accomplice but his testimony and the testimony of the accomplice showed otherwise and it said that the State had never sought to charge her with the crime but specifically conceded she was not a participant. In Harriday v. State, 228 Md. 593, a court trial, the trial court found on the evidence before it that the sole witness to a larceny was a receiver of the stolen goods and therefore not an accomplice. The Court of Appeals found that the lower court was clearly erroneous in that the evidence was sufficient to show that the witness aided and abetted in the commission of the larceny and thus came within the definition of accomplice. It reversed the judgment as to one defendant because the conviction was based on the uncorroborated testimony of the accomplice but affirmed the judgment as to another defendant because the corpus delicti and his criminal agency were proved independently of the accomplice’s testimony. In Grimes v. State, 4 Md. App. 607, it was contended that a witness was an accomplice of the defendant in a grand larceny as the evidence showed the witness was in possession of recently stolen goods and the inference was that he was also the thief. We rejected the contention on the ground that the witness had an explanation for the possession which the trial court believed. We said that therefore we must hold that the explanation was reasonable, citing Md. Rule 1086, and as the possession of the recently stolen goods was reasonably explained, there was no inference under the rule. In Johnson v. State, 4 Md. App. 648 we found that the jury, from the evidence before it, could properly find that a witness was not an accomplice and therefore his testimony did not have to be corroborated.

THE INSTANT CASE

The appellant here was convicted of grand larceny by the Criminal Court of Baltimore and sentenced to 3 years. It is not disputed that the corpus delicti of the crime was proved. A large number of articles were stolen from the apartment of Samuel Smith. He reported the theft to his landlord. The next evening his landlord came to the apartment with his nephew Joseph Bell and Bell gave Smith a pair of cuff links and two pair of pants that had been stolen. Bell testified that he had obtained the articles from the appellant, who came up while Bell was sitting in front of his house. The appellant gave Bell the cuff links but indicated he would pick the pants up later. A record player and two sweaters, which- had' been stolen from Smith, were recovered from Ethel Parker. She testified that on the day of the larceny she was sitting on the front steps of her home “with -a gang of people” when the appellant came down the street “with a hand full of articles * * * about twenty albums, soap, pants, record player, fan * * * He asked did anybody want to buy anything.” She bought the fan and the record player and also obtained two sweaters for which she was going to pay him later. The police recovered the record player and sweaters from her about five days after the theft. She had given the fan to her sister and the police recovered that item from the sister. There was no evidence as to the amount she had paid for the articles. On cross-examination she said she learned that Smith’s apartment had been “burglarized” the day before the police came. About a week after the theft the police obtained an arrest warrant for the appellant on information received from Bell and Ethel Parker.

The appellant, testifying in his own behalf, denied that he had “burglarized” Smith’s apartment, denied that he had stolen the articles, denied that he gave the cuff links and pants to Bell or that he ever had possession of them and denied that he sold any goods to Ethel Parker. lie admitted to prior convictions for larceny and burglary. He knew Bell — -“See him, speak to him, keep going about my business.”

The testimony of Bell and Parker was sufficient to show that the appellant was in possession of recently stolen property. The general rule is that the exclusive possession of recently stolen goods, absent a reasonable explanation, gives rise to an inference that the possessor was the thief. Wilkins v. State, 4 Md. App. 334, 341-342. Thus the trial court could have found that the appellant committed the larceny. But the appellant urges that the testimony of Bell and Ethel Parker also showed that they were in possession of such property; that, by the inference, they were also the thieves; and that, as the thieves, they were accomplices of the appellant. Pie contends that it was their uncorroborated testimony on which the conviction was based and thus the conviction cannot stand. We agree that the testimony of Bell and Ethel Parker was not corroborated as would be required if they were accotnplices and that without corroboration of their testimony the evidence was not sufficient to sustain the conviction. But the witnesses gave an explanation of their possession of the stolen goods. Their credibility was to be judged by the trial court and the weight to be given their testimony was for its determination. The trial court obviously believed their explanations as to how they came into possession of the recently stolen property and considered the explanations to be reasonable. Therefore the inference that they had stolen the property, participating in the commission of the larceny as principals or accessories before the fact, did not arise. Since the inference that they were the thieves did not arise, the trial court, applying the test as to whether a witness was an accomplice, could properly find that these witnesses were not accomplices as they themselves could not be convicted for the offense of which the appellant was charged. The appellant did not meet his burden of proving that the witnesses were accomplices. He merely denied any connection with the crime or with the stolen property, but the trial court was under no obligation to believe him. Eley v. State, 4 Md. App. 230. As there was legally sufficient evidence to support a finding by the trial court that the witnesses were not accomplices, such finding was not clearly erroneous and as such judgment on the evidence was not clearly erroneous, we may not set it aside. Md. Rule 1086.

Even if it be assumed that the evidence was sufficient to establish that the witnesses were receivers of the stolen goods, the appellant is not helped. A thief and a receiver are not accomplices unless they conspire together in a pre-arranged plan for one to steal and deliver to the other, and, pursuant to such plan, one does steal and deliver to the other. Osborne v. State, 4 Md. App. 57; Keene v. State, 2 Md. App. 325. The evidence here shows no such conspiracy.

As we cannot say that the challenged witnesses were accomplices, their testimony was not required to be corroborated. The corpus delicti was proved by the testimony of the victim and the testimony of Bell and Ethel Parker was alone sufficient to establish the criminal agency of the appellant. We hold that the trial court had sufficient evidence from which it could fairly be convinced beyond a reasonable doubt of the appellant’s guilt.

The appellant also contends that the trial court erred by not permitting the cross-examination of Ethel Parker relating to her means of livelihood. During the cross-examination of her she said that she lived with her mother and two sisters and that she was not employed. She was asked how she made a living and objection was made and sustained. The appellant now argues that the question was material to her credibility and “was calculated to reflect on the possibility of her having to support herself by devious means,” bearing on the question of her complicity as an accomplice. But the fact that she was not then employed was in evidence and there was no proffer as to what the appellant desired further to establish by the question. Ordinarily the scope of cross-examination is a matter within the sound discretion of the trial court. Plumley v. State, 4 Md. App. 671. We see no abuse of that discretion here.

Judgment affi~ned.

      . For a discussion of principals and accessories see Agresti v. State, 2 Md. App. 278. An accessory after the fact is not an accomplice. Watson v. State, supra, at 220.

      . The test is variously stated. “The test for determining whether a person is an accomplice of a defendant charged with a felony is whether he could be indicted, and punished for the crime charged against the defendant.” Watson v. State, supra, at 217. Watson cites People v. Konkowski, 378 111. 616, which states that the test of whether a witness is an accomplice is “whether he himself could have been indicted for the offense, either as principal or accessory,” and People v. Walker, 88 Cal. App. 2d 265, which says that “accomplice” includes all persons “liable to prosecution for the identical offense charged against the defendant.” In 53 ALR 2d, § 4, p. 822 the test is said to be whether the witness himself “could have been indicted for the offense with which the defendant is charged.” The phrase “prosecuted and punished for the crime with which the accused is charged” is used in stating the test in 23 C.J.S. Criminal Law, § 786 (1), p. 3. It is said in 32 Am. Jur., Larceny, § 51, p. 951, “[I]t is usually held, conceded or assumed that persons whose connection with a larceny is such that they may be prosecuted as principals, or as accessories before the fact, are accomplices.” (emphasis in each instance supplied) But whether the words “indicted and punished” or “indicted” or “liable to prosecution” or “prosecuted and punished” or “may be prosecuted” or “could have been indicted” are used in stating the test, we think it is inherent that if a person could have been “convicted” of the offense of which the defendant is charged, either as a principal or as an accessory before the fact, he is an accomplice of that defendant. And we said in Grimes v. State, 4 Md. App. 607, 609, “The test to determine whether or not a witness is an accomplice is whether he himself could have been indicted and convicted for the offense either as a principal or as an accessory before the fact.”

      . See Ripley v. State, 189 Tenn. 681, 227 S.W.2d 26; Anderson v. State, 98 Tex. Cr.449, 266 S. W. 159; Clark v. State, 159 Tex. Cr. 187, 261 S.W.2d 339, cert. den. 346 U. S. 855, rehearing den. 346 U. S. 905.

      . It said that even if its decision were otherwise, there was ample corroborative evidence. 208 Md. at 221.

      . The judgment was reversed on other grounds.

      . The mere fact that one is indicted or charged with a crime in connection with another does not make such a one an accomplice. 3 Wharton’s Criminal Bvidence, supra, § 446, p. 226. And it has been held that the fact that a witness was tried for the crime and acquitted or that the grand jury exonerated a witness when it passed on his connection with the crime, is not admissible to show that he was not an accomplice; but evidence that a witness pleaded guilty or was convicted of the crime is admissible to show he was an accomplice. 23 C.J.S. Criminal Law, § 796, p. 19.

      . The Court said, at 596-597, that even if the witness “could not be considered a principal in the crime, * * * he comes within the definition of an aider * * We think it clear that the Court meant that he could not be considered a principal in the first degree or the principal perpetrator of the crime. An aider or abettor is a principal in the second degree and thus within the definition of an accomplice as stated supra in this opinion. See Coleman v. State, 209 Md. 379, 384-385; Agresti v. State, supra, 280.

      . The record does not disclose that the issue whether the witnesses were accomplices was specifically raised below. Argument of counsel on the motion for judgment of acquittal made at the close of all the evidence is not transcribed and the trial court rendered the verdict without comment, not stating the grounds for its decision either in open court or by written memorandum. See Md. Rule 742; Ferraro v. State, 200 Md. 274. It is properly before us, in any event, on the question of the sufficiency of the evidence.

      . The evidence showed that the property was received by them and that it had been stolen. Guilty knowledge that it was stolen and that it was received with fraudulent intent may be inferred if the receivers could reasonably have suspected the true character of the goods. McGlothlin v. State, 1 Md. App. 256. On a showing that another was the thief, possession of recently stolen goods, unexplained, gives rise to an inference that the possessor is the receiver. Kincer v. State, 5 Md. App. 80.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    MILTON RUDOLPH HONEST v. STATE OF MARYLAND
    [No. 8,
    September Term, 1968.]

      Decided December 3, 1968.

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

      Robert V. Lazzaro, with G. Denmead LeViness on the brief, for appellant.

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

delivered the opinion of the Court.

The appellant, Milton Rudolph Honest, was found guilty by a jury in the Circuit Court for Baltimore County on an indictment charging robbery with a deadly weapon, and on two separate indictments, each charging assault with intent to murder. He was sentenced to respective prison terms of 12 years, 5 years (consecutive) and 5 years (concurrent).

The record indicates that at 3 :00 A.M. on May 22, 1967, the night auditor of a Holiday Inn was sitting alone in the lobby when accosted from behind by two men who ordered him, at gunpoint, to open the safe and then lie on the floor. After taking $425 from the safe and some money from the victim’s wallet, the men left the premises. The auditor called the police, gave a general description of the men, but was unable to identify Honest as being one of the robbers.

The desk clerk of the Inn testified that as he was leaving the building to direct a guest to a nearby restaurant, he observed the two men going into the building through the back door. He returned to the building, looked in and, when he could not see the auditor, suspected something was wrong. He related his suspicions to a police officer who was sitting in a cruise car across the street; got in the back seat of the police car and was driven over to the front of the motel, where he observed through the front window one of the men reaching under the counter, getting the cash box, and further testified that the two men “stared at us and we stared at them.” The men then ran out the back door. The officer immediately drove the car around to the rear of the motel where the two men were observed beside a car. According to the desk clerk, as the officer began to notify his dispatcher over the car radio of this encounter, one of the men, wearing sun glasses, started running toward the police car whereupon the clerk got on the rear floor of the car, heard three shots and the window of the police car shatter. He could not positively identify Honest at a lineup, “but I told them the one on the end [Honest] looks more like the one than the others.” He did identify Honest in the courtroom as the one who fired the shots at the patrol car.

The driver of the police car testified substantially in accordance with the clerk’s testimony. He also made an in court identification of Honest as the individual who fired at him in the police car, having previously identified him in a police lineup.

Another officer, Edward Amoss, testified that he stopped a car that he observed leaving the Holiday Inn parking lot at approximately 3:10 A.M.; that neither of the two occupants was Honest; but upon searching the car he and another officer found a bowling shoe bag with a yellow tag attached to it with the name Duke written thereon and .the bag contained an empty revolver holster and a bill of sale for a 1957 Cadillac made out to Honest.

An arrest warrant was issued two days after the crimes and a Sergeant Joseph Gomeriger and a Detective Sutter went to a residence where the appellant roomed to serve it. Receiving no answer at the appellant’s room, they spoke with a Mrs. Martin, the mother of the landlady, who recognized the appellant by the nickname Duke. The landlady then arrived and granted them permission to enter the appellant’s room. They searched under the bed and in the closet without finding the appellant. Upon opening the closet door one of the officers observed a revolver “on the closet shelf * * * sticking out from between two blankets” and called the other officer’s attention to the weapon. At this point the search was discontinued and one of the officer’s left to obtain a search warrant while the other remained at the rooming house. Both officers testified that the sole purpose in entering the room was to apprehend Honest and not to search his room unless he were there. Recovered from the room were the 38 caliber revolver observed by the officers with four spent cartridges and two live rounds in its chamber, and numerous papers indicating that Honest lived there.

The revolver was offered in evidence and it was stipulated that the three bullets removed from the police officer’s car were examined by the Federal Bureau of Investigation and that the bullets were probably from the revolver subsequently seized in Honest’s room but that it was possible that they could have been fired from another revolver.

Honest testified in his own behalf and denied any participation in the robbery or assaults and also denied that he left his revolver in plain view of the officers who searched his room. He admitted prior convictions for larceny, assault and illegal possession of narcotics.

The appellant first contends that the pre-trial lineup “was rigged against him.” He asserts that he was positioned on the end of the line and that the other three individuals in the lineup were “apparently uniformed personnel of the police station and that they were all three of the same height and all were shorter than him.” A careful examination of the record reveals that this assertion is utterly unsupported by the testimony. The only testimony concerning the lineup identification was adduced by defense counsel in his cross-examination of the two witnesses who identified Honest. There is no suggestion in their testimony to support the appellant’s allegations and, accordingly, we find his contention to be without merit. Johnson v. State, 2 Md. App. 235, 244.

He next contends that the “search and seizure warrant obtained by the police after entering his room with an arrest ■warrant was illegally and unconstitutionally obtained.” The two police officers who attempted to serve the arrest warrant testified that they searched the appellant’s room solely for the purpose of locating him. In the course of their search they opened the closet door and observed the revolver in plain view. Thereafter, one of the officers left to obtain a search and seizure warrant while the other officer remained on the premises. Upon the officer’s return with the search and seizure warrant they took possession of the revolver and proceeded to search for other evidence. There is no merit in the appellant’s contention “that the police exceeded their authority when they probed around in his closet uncovering the gun.” Armed with the arrest warrant the officers had not only a right but a duty to take all steps necessary to ascertain whether the appellant was in the room. When, in the course of their lawful search for the appellant, they discovered a revolver, they sought and obtained a search and seizure warrant. Under the circumstances, they followed the procedure commended by the United States Circuit Court of Appeals for the Fourth Circuit in Hall v. Warden, 313 F. 2d 483 and approved by the Court of Appeals of Maryland in Gross v. State, 235 Md. 429, 442. Thus, the appellant’s contention is without merit.

The appellant finally contends that the evidence was too conflicting and inconclusive to justify his conviction. The identification by two eye witnesses to the crime was, in itself, sufficient evidence upon which the jury could base its verdict of guilty. Coates v. State, 232 Md. 72; Gibson v. State, 4 Md. App. 222; Crumb v. State, 1 Md. App. 98. Moreover, the discovery of appellant’s revolver with four expended cartridges, the discovery of his bowling bag in a car near the scene of the crime and the Federal Bureau of Investigation report afford additional supporting evidence from which the jury could find the appellant guilty beyond a reasonable doubt.

Judgments affirmed.


author: Murphy, C.J.,

text:
    JEROME DUVALL v. STATE OF MARYLAND
    [No. 56,
    September Term, 1968.]

      Decided December 3, 1968.

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

      Malcolm B. Tebbs for appellant.

      Henry J. Prankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and T. Bryan Mc-Intire, State’s Attorney for Carroll County, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

On February 2, 1968 appellant was indicted for feloniously escaping on May 25, 1965 from the Central Laundry Correetional Camp, a place of confinement within this State. Counsel was appointed to represent him and on March 12, 1968 appellant was arraigned, at which time he pleaded guilty to the offense, and was sentenced to three years under the jurisdiction of the Department of Correction, to run consecutively with the term of imprisonment he was then serving. He contends on this appeal that his guilty plea was not knowingly and intelligently entered.

The record discloses that at his arraignment the trial judge asked appellant (a) whether he was satisfied with the services rendered by his court-appointed attorney, (b) whether there was anything that “you’ve asked that he hasn’t done,” and (c) whether he has “done anything you didn’t want him to do.” After appellant responded in the affirmative to the first question and in negative to the other questions, the indictment was read to him and he was asked to plead to the charge. He personally responded, “guilty, Sir.” He was then asked whether he desired trial by court or by jury and his attorney, on his behalf, stated that he wished trial before the court. The State’s Attorney then made a statement indicating appellant’s guilt of the offense charged in the indictment, after which he called a witness on behalf of the State who, without objection by the appellant, advised the court of appellant’s criminal record. The appellant, through counsel, then made a statement to the court in mitigation of punishment. At the conclusion of these proceedings, the court found appellant guilty and passed sentence.

It is well settled that a plea of guilty may be entered under circumstances showing a voluntary desire on the part of the accused to do so, with an intelligent understanding of the nature of the offense to which he is pleading guilty and the possible consequences of such a plea; and the acceptance of a guilty plea entered under such circumstances will not be set aside on appeal. Wayne v. State, 4 Md. App. 424, and cases cited at page 429. Contrariwise, an appeal will lie, even after a plea of guilty has been entered, where it is alleged that the plea was not voluntarily and freely made, Hamilton v. Warden, 214 Md. 633, Lowe v. State, 111 Md. 1; and while it was formerly the law that a plea of guilty by a defendant represented by counsel and capable of participating in his own defense was accepted almost as a matter of course (see Cooper v. State, 231 Md. 248), in James v. State, 242 Md. 424, it was held that the voluntary nature of a defendant’s plea must he clearly established prior to the court’s acceptance of it, and that although no specific ritual need be followed by the trial judge, he must satisfy himself of the voluntary character of the guilty plea and of the fact that the defendant understands its nature and effect. In Owens v. State, 243 Md. 719, 721, it was held that the accused who desires to plead guilty must, prior to the court’s acceptance of such a plea, be advised either by the court or by his own attorney, “of the nature of the charges against him and of the consequences of a plea of guilty.”

While it is clear that the indictment charging the crime of escape under Section 139 of Article 27 of the Maryland Code was read in full to the appellant at the arraignment, and that it is a crime relatively simple of understanding, the record before us does not show that any inquiry was made, either by the court or by defense counsel, as to whether appellant understood the nature of the charge and the possible consequences of a plea of guilty, particularly as to the length of the sentence that could be imposed upon him by the court. We recognize, of course, that defense counsel ordinarily advises an accused in detail concerning the nature of the crime charged, as well as the consequences of a guilty plea. We are unwilling, however, to conclude on a silent record that defense counsel did in fact so advise the accused, and we hold that appellant’s guilty plea was not satisfactorily shown to be freely and intelligently entered. It was, therefore, improper under the circumstances for the court to accept it and a new trial must be granted.

Appellant advances the further contention that in no event may he be prosecuted for the crime of escape under Section 139 since prosecution therefor was barred by limitations under Article 57, Section 11 which provides, in pertinent part, that “No prosecution * * * shall be commenced for any * * * misdemeanor, except those punished by confinement in the penitentiary", unless within one year from the time of the offense committed.” He urges that in October of 1965, when the alleged escape was committed, the statutory crime of escape was only a misdemeanor and since it was not punished by" confinement in the penitentiary, it could not be prosecuted later than one year after its commission.

Although the crime of escape is now a felony, having been made so by Chapter 628 of the Acts of 1966, it was a misdemeanor in October of 1965 (see Fabian v. State, 3 Md. App-270), and as the sentence which could then (as now) be imposed for its violation included confinement in the penitentiary, the one year statutory limitation on prosecution is not applicable. More specifically, there is authority holding that Section 11 of Article 57 which limits prosecutions for misdemeanors “except those punished by confinement in the penitentiary” to' one year is properly interpreted by viewing the word “punished” to mean “punishable” by confinement in the penitentiary. See Schaumloeffel v. State, 102 Md. 470. Accordingly, while the crime of escape need not be punished by confinement in the penitentiary (incarceration in jail or the House of Correction also being authorized), it is in any event punishable by confinement in the penitentiary, and therefore not barred from prosecution after one year under the statute.

Appellant also contends that the sentence imposed by the court was illegal and void because the indictment charging him with “feloniously” escaping was fatally defective in that the crime,when committed, was only a misdemeanor and not a felony. Although the question -of.’.the legality of the sentence has been rendered moot by our reversal of the judgment, we note that the Court of Appeals has held that an indictment which characterized as felonious the commission of a misdemeanor is invalid. See Whittington v. State, 173 Md. 387; Bowser v. State, 136 Md. 342; Barber v. State, 50 Md. 161; Black v. State, 2 Md. 376. But compare Eggleston v. State, 4 Md. App. 124. Although there is no general requirement, constitutional or procedural, for a re-indictment following a reversal and remand for a new trial, Farrell v. Warden, 241 Md. 46, we think the State’s Attorney should give careful consideration to the within cited authorities.

Judgment reversed; case remanded for a new trial.


text:
    JOHNNIE JONES v. STATE OF MARYLAND
    [No. 70,
    September Term, 1968.]

      Decided December 3, 1968.

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

      Joseph G. Koutz for appellant.

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

delivered the opinion of the Court.

Appellant was convicted by the court sitting without a jury of robbery and sentenced to four years under the jurisdiction of the Department of Correction. He contends on this appeal that the low'er court erred in failing to grant his motion to suppress evidence, said motion being based on the ground that he was illegally arrested, illegally searched, illegally questioned, and illegally confronted with evidence unlawfully seized by the police.

Appellant having expressly agreed that his pretrial motion to suppress evidence could be considered and determined during the course of the trial, the State introduced evidence to showr that at approximately 12:20 p.m. on September 16, 1967, Roland Stickley, a Tennessee resident sojourning in Maryland, drove in his 1966 Chevrolet to a tavern in Baltimore City where he met a Negro man, whom he later identified as the appellant. Stickley testified that he agreed at appellant’s request to drive him to a specified address; that they left the tavern together, got into Stickley’s car, at which time appellant hit him over the head with a bottle, struck him with a stick, and thereafter (after breaking Stickley’s ankle and leaving him on the ground) drove off in his car.

Stickley identified appellant as the robber-assailant at the trial over appellant’s objection that such identification evidence was inadmissible on the ground that appellant had been illegally arrested. Stickley was then shown certain photographs by the State’s Attorney which he identified as the car which had been stolen from him. The photographs were received in evidence over appellant’s objection “based on the motion to suppress the evidence.”

Stickley testified that shortly after commission of the crime, police arrived on the scene and, while he was awaiting an ambulance, he told the police “what happened,” described his assailant as a light colored Negro around 150 lbs., 5'9" in height, lean and rawboned, and told them that he had heard him referred to as “Jones” in the tavern. Stickley also described his car to the police and gave them its license number. Appellant objected to Stickley’s testimony concerning what he told the police, but the court admitted it, apparently on the ground that since the legality of the arrest had been questioned by the appellant in his motion to suppress evidence, the information given by. Stickley to the police would be admissible on the question of the existence of probable cause for appellant’s arrest.

Stickley further testified, again over appellant’s objection, that he viewed eight to ten photographs in Washington, D.C. and picked out appellant as his assailant; that he also viewed ten to twelve photographs in Baltimore and again picked out appellant as his assailant; and that after these identifications he attended a preliminary hearing in Washington, D.C., having been previously told by the police that they had apprehended one “Johnnie Jones.” Stickley testified that he saw the appellant as they brought him into a crowded court room. The State then rested its case, at the conclusion of which appellant urged the court to rule favorably on his motion to suppress evidence, including suppressing the testimony of Stickley, on the basis that there was no showing that appellant had been legally arrested. The State argued that it was unnecessary to prove the legality of the arrest since no tangible evidence had been seized from the appellant at the time of his arrest, nor was any evidence introduced at the trial which resulted from the allegedly illegal arrest. The lower court agreed with the State and denied appellant’s motion to suppress evidence.

■ .Appellant then testified in his own behalf. He denied ever having seen Stickley or being with him in the tavern on the night of the crime. On cross-examination he admitted that he was in Stickley’s car when arrested in Washington, D.C. but stated that he was in the car at the invitation of two friends, Bootsie Green and another man known to him only as Big Holly (neither of whose addresses he knew). He testified that at the time of his arrest he was reading in Stickley’s car waiting for his two friends to return, the keys to the vehicle having been left by them in the ignition.

Appellant then called a police officer to testify on his behalf. The officer’s testimony indicated discrepancies between the description of the robber given by the victim to the police, and his trial testimony relating thereto, as well as some differences involving the details of the crime’s commission.

Maryland Rule 729a provides, inter alia, for the filing of motions to suppress evidence “whenever property is claimed in a court to have been obtained by an unlawful search or seizure,” such motions ordinarily being filed on the ground, as set out in subsection (1)) of the Rule, that such unlawfully obtained property “may be used as evidence at the trial.” Appellant’s motion to suppress did not specify any particular property or tangible items alleged to have been unlawfully obtained from him at the time of his arrest.

While we agree with appellant that the State failed to prove that he was lawfully arrested, we do not agree under the particular facts of this case that it w'as essential for the State to prove the legality of the arrest simply because the appellant had pending before the court a motion to suppress unspecified evidence on the ground that the arrest was illegal. It is well settled that an illegal arrest does not affect the jurisdiction of the court, is not ground for quashing the indictment, and does not preclude trial and conviction for the offense. Matthews v. State, 237 Md. 384; Nadolski v. State, 1 Md. App. 304. When evidence is not obtained as a result of an unlawful search and seizure, it is not rendered inadmissible simply by reason of the fact that the arrest wTas illegal. Jones v. State, 5 Md. App. 180. And where no tangible “fruits” of an illegal arrest or search are introduced against an accused at his trial, the alleged illegality of the arrest and of the subsequent search and seizure is ordinarily immaterial. Baldwin v. Warden, 243 Md. 326; Walker v. State, 237 Md. 516; Butina v. State, 4 Md. App. 312; Thompson v. State, 4 Md. App. 31; Crosby v. State, 2 Md. App. 578. In other words, the use of such unconstitutionally obtained evidence at the trial “is a prerequisite to a complaint successfully attacking a conviction resulting from a prosecution initiated by an illegal arrest.” Matthews v. State, supra, at page 388, and cases there cited. Assuming the federal exclusionary rule articulated in Wong Sun v. United States, 371 U. S. 471, to be that any evidence obtained as a result of an illegal arrest is initially deemed tainted as the fruit of the poisonous tree, it has been held that that rule does not control prosecutions in State courts. Dailey v. State, 239 Md. 596; Prescoe v. State, 231 Md. 486; Butina v. State, supra; State v. Hill, 2 Md. App. 594. Even if an arrest be illegal, therefore, testimony relating to the identification of the accused at a police lineup, or in a police station, or an identification made at trial is not inadmissible as the fruit of an illegal arrest. See Hartley v. State, 4 Md. App. 450; Parks v. State, 4 Md. App. 432; Tender v. State, 2 Md. App. 692.

We think it clear that the only tangible evidence produced against appellant by the State in the presentation of its case-in-chief was the photographs of Stickley’s car. But as the record makes clear the introduction of these photographs was for the purpose of having the victim identify the vehicle which in his testimony he stated was stolen from him by the appellant. The State did not offer any evidence to show that appellant had been arrested in Stickley’s vehicle, that evidence having been elicited from the appellant on cross-examination after he had testified in his own behalf denying that he had ever seen Stickley or that he knew anything of the crime. Under these circumstances, and considering the State’s limited evidentiary use of the photographs of the victim’s car, we do not believe that the photographs would have been subject to suppression under appellant’s motion. While it may have been that appellant’s arrest in Stickley’s car was illegal, and that, as to any tangible items seized from the car or from his person at that time, he would have had standing to object (see Mancusi v. DeForte, 392 U. S. 364), we see no violation of appellant’s Fourth Amendment right to be secure against unreasonable searches or seizures for the police to take a photograph of Stickley’s car, and for the State to introduce that photograph at the trial for the purpose of showing that the victim, who testified that his car was stolen from him by the appellant, identified the car depicted in the photograph as being his property.

Where a motion to suppress has been filed and is to be heard during the course of the trial, the State’s Attorney should, where he does not intend to prove the legality of the arrest, or to offer any tangible evidence seized as a result of the ar-rest, so advise the court at the outset of the trial so that the court may be governed accordingly when making its rulings on the admissibility of evidence. In the present case, even if Stick-ley’s testimony as to what he told the police shortly after the commission of the crime was not admissible as part of the State’s case to prove probable cause for the arrest-the State not intending to prove the legality of the arrest -■ we do not think its admission in this case prejudiced the appellant in any way.

Nor do we agree with the appellant that the evidence was insufficient to sustain his conviction. The discrepancies between the victim’s testimony at trial and what he told the police at the scene of the crime, went to the weight of the evidence and to the credibility of the witness and, as such, were matters for the trier of facts. If believed, the victim’s testimony, includ-ing his positive identification of the accused as the perpetra-tor of the crime is sufficient to support the conviction. It is ob-vious in this case that the trier of fact believed the victim’s tes-timony and disbelieved that of the accused.

Judgment affirmed.


author: Per Curiam.

text:
    CLARENCE ROLLINS, JR. v. STATE OF MARYLAND
    [No. 72,
    September Term, 1968.]

      Decided December 4, 1968.

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

      Morris Lee Kaplan (Michael Lee Kaplan on brief) for appellant.

      William E. Brannm, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and James B. Dudley, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Clarence Rollins, Jr., the appellant, was convicted of violation of the narcotics laws and of being a subsequent offender under an addendum thereto. Both charges were tried together by agreement between the parties. The trial was conducted by Judge Anselm Sodaro presiding without a jury in the Criminal Court of Baltimore. The sentence imposed was a term of fifteen years.

There was evidence from which the trial judge could have found:

On November 9, 1966, a Federal Narcotics Agent, Vincent Lozowicki, met an unnamed informant who advised him that Rollins was going to make a delivery of approximately 60' capsules of heroin at Ramsey and Barre Streets in Baltimore City at approximately 10:00 p.m. the same night. The informant was known to the officer and for five years had been furnishing him with information which led to the arrest and conviction of about thirty narcotics offenders. The officer also knew Rollins had been a prior offender on at least two occasions.

As a result of this information Rollins’ home was placed under surveillance by federal and city officers. About 9:40 p.m. Rollins came out of the house in the company of another man, and both entered a 1967 green and black Thunderbird. Rollins, the driver, was identified by one of the officers.

The officers conducting the surveillance followed in their vehicle while other officers with whom they were in radio con^ tact, also proceeded to the area of Ramsey and Barre Streets. When Rollins’ automobile reached the intersection of Ramsey and Barre Streets, it turned from Ramsey Street partially into Barre Street and stopped at the curb with most of the car resting in the bed of Barre Street. The passenger got out of the car and the car door was still open when the surveillance officers pulled across the path of Rollins’ Thunderbird, and both officers got out. One of the officers held up his badge in his hand and yelled “Police” to Rollins. The other officers pulled up behind Rollins’ car.

One officer observed Rollins toss an aluminum package out of the car. A second officer also observed the package come out of the car at a time when Rollins was the only person therein. The second officer picked up the package which contained 59 white gelatin capsules. The contents of the capsules were later atialyzed and found to be heroin hydrochloride.

Rollins fled the scene in his automobile striking one of the two police vehicles that had converged to block his departure. At his trial Rollins denied that he threw the package from the car and produced a third police officer who said that, although he was present, he did not actually see the package fall to the street, but that he did see the second officer pick it up. The third officer was arresting the passenger at the time the package was thrown.

On appeal Rollins contends that there was error in the denial by the trial judge of his pretrial motion for discovery requesting the name of the informant. He relies on Roviaro v. United States, 353 U. S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 wherein the Supreme Court held that where the question is one of guilt or innocence of the accused, and the need of such information is demonstrated, the accused is entitled to know the name of the informer. However, in McCray v. Illinois, 386 U. S. 300, 87 S. Ct. 1056, 18 L.Ed.2d 62 the Supreme Court distinguished between the need to produce such information as to a question of guilt or innocence, and the need to produce such information where the question involved is probable cause for the arrest. In the present case the informer’s information related only to the probable cause for the arrest and Roviaro v. United States, supra is not on point.

Rollins further contends the arrest was illegal in that it was made without probable cause, and, therefore, that his motion to suppress the heroin should have been granted. Assuming, without deciding, that Rollins was arrested at the time when his car was almost surrounded by police cars, and assuming that his act in throwing the heroin to the street did not constitute an abandonment, we have no problem in holding the arrest was legal. The evidence showed that an informer, who had been furnishing reliable information for a period of five years, advised the police officers that Rollins, by name, would at 10:00 p.m., deliver approximately sixty capsules of heroin at Ramsey and Barre Streets. At the moment the officers stopped Rollins’ vehicle they knew that Rollins had left his home at 9:40 p.m., had driven directly to the spot where the informer told him he would be, and that he was at that location at the exact time the informer had stated. We think that they had reasonable grounds to believe that he also had the heroin.

We think the present case is as nearly parallel to Draper v. United State, 358 U. S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327 as it is possible for two cases to be. Note particularly 358 U. S. 313, 79 S. Ct. at 333:

“Nor can we agree with petitioner’s second contention that Marsh’s information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic law's and to justify his arrest without a warrant. The information given to narcotic agent Marsh by ‘special employee’ Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact phj'sical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a ‘fast’ pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford’s information being this personally verified, Marsh had ‘reasonable grounds’ to believe that the remaining unverified bit of Hereford’s information — that Draper would have the heroin with him — was likewise true.” (Italics added)

While the present record would have better developed if the officers had stated on the witness stand the exact information that they received from the informer, their subsequent observations verified w'hat the informer had told them as to the time and place of the delivery and the name of the person who was to make the delivery. We certainly cannot say that the trial judge was clearly erroneous under Maryland Rule 1086 when he found the police officers had probable cause at that time to believe Rollins was in possession and control of narcotics and was thus committing a felony in their presence.

Finally, Rollins contends that the evidence was insufficient to support the verdict of the trial judge and that he was clearly erroneous in his findings. The chemist examination of the material showing that it was heroin hydrochloride was admitted by stipulation. Two police officers each gave testimony sufficient to show that Rollins had. been in possession of the package containing the heroin. No more is required. In making the contention, Rollins points to three minor matters in the testimony to support his position. He points to the testimony of the one police officer who did not see Rollins throw the package. This does not help him because two other police officers did see him throw the package. He further points to testimony in the record which shows that one of the police officers stated that he knew that the passenger had possession of the package. The reading of the testimony indicates clearly, however, that this was either a typographical error in the transcript or a slip of the tongue by the officer because his entire testimony shows clearly that Rollins had thrown the heroin from the car. He further contends that a police officer changed his testimony from what he gave at the preliminary hearing, but the record fails to disclose such discrepancy, and in any event it concerned only a minor detail in the testimony relating to distance.

Judgment affirmed.

Appellant to pay the costs.


text:
    MICHAEL WILLIE LIPSCOMB v. STATE OF MARYLAND
    [No. 116,
    September Term, 1968.]

      Decided December 4, 1968.

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

      Thomas N. Biddison, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Charles A. FJern

      don, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

Michael Willie Lipscomb, the appellant, was tried jointly with a co-defendant, Eric Dabney, on March 7, 1968 before Judge Anselm Sodaro without a jury in the Criminal Court of Baltimore. Lipscomb was found guilty of rape, robbery with a dangerous and deadly weapon, and the commission of a perverted sex act. He was sentenced to concurrent terms of life imprisonment, twenty years and one year, respectively, under the jurisdiction of the Department of Correction.

On this appeal Lipscomb contends:

(1) He was prejudiced by the implicating testimony of his co-defendant at the joint trial.
(2) The sentence, under the circumstances, constituted cruel and unusual punishment.
(3) The court erred in accepting the Miranda statements of the police without ascertaining the existence of a knowledgeable waiver.

Miss Ann Catherine Williams, the alleged victim of the crimes, testified at the trial that on July 16, 1967, between 11:00 a.m. and 12:00 noon, she noticed two youths, whom she identified at the trial as the appellant Lipscomb and his co-defendant Dabney, peering in her basement apartment window; that after she admonished them, they departed, but they returned shortly thereafter to request her permission to take certain items that had been discarded outside her apartment; and that after she consented to the youths’ taking certain of these items, Lipscomb returned to tell her that Dabney had been apprehended by a policeman for stealing the items that she had permitted them to take. Miss Williams did not permit entry into her apartment by either of the youths but spoke to them through a barred window and a partially opened door on a chain latch.

She further testified that after waiting approximately five minutes to make certain that Lipscomb had departed, she stepped into the hallway to go outside the apartment building, at which time Lipscomb grabbed her from behind, pressed a knife to her throat and asked her to engage in sexual intercourse with him; that when she declined, Dabney took her apartment keys, opened the door, and she was forced into the apartment; that Lipscomb struck her in the face when she refused to lie on her bed, after which he forced her to commit fellatio upon him, and thereafter compelled her to have intercourse with him, cutting her arm with his knife during the relationship; that Dabney held her leg down while Lipscomb was engaged in the intercourse; and that before Lipscomb departed, he took her watch from her arm and her ring from her finger. After the youths had left, Miss Williams took a showier, changed her clothes and obtained the assistance of a policeman about a block from her apartment.

On cross-examination Miss AAfilliams denied knowing a girl by the name of Linda Smith. She also testified that she had identified Lipscomb at a lineup almost two weeks after the commission of the crime.

Dr. George A¥ells testified that he examined Miss Williams at 3:20 p.m. on July 16, 1967 and found a one-quarter inch penetrating laceration of the right upper arm and evidence of sexual intercourse.

Officer AVilliam R. Helmick testified that Miss Williams, crying, stopped him about a block from her apartment and told him of her rape and robbery. AVith the descriptions she had given him, the officer recalled having previously observed two suspects in the area, whom he identified at the trial as the appellant and Dabney. Unable to apprehend them at that time, he again observed Dabney on July 25 and captured him after a chase. The officer further testified that Dabney stated that Lipscomb alone committed the sexual assaults. Appellant objected to Dabney’s statement “as against Lipscomb.” The trial judge accepted the statement “as against Dabney only and not as against Lipscomb.”

Officer Helmick testified that, with Dabney’s aid, he apprehended Lipscomb, took him to the police station and there “advised him of his rights.” An express written waiver of the right to counsel at the lineup, signed by the appellant, was introduced into evidence.

Lipscomb testified on his own behalf that he had first seen Miss Williams on a Friday, about five days prior to the date of the alleged crimes, at the Greyhound Bus Terminal with her girlfriend, Linda Smith; that he was invited by the girls to Miss Williams’s apartment where he kissed the prosecutrix; that he returned to her apartment on July 16 and had consensual sexual relations with her, stealing her watch at the conclusion of the intercourse; and that while he never again saw Linda Smith, he did receive a Christmas card from her, which contained five dollars and her photograph. These items were admitted into evidence.

Eric Dabney then testified and his testimony closely corresponded to that of the victim. He attested to Lipscomb’s sexual acts upon Miss Williams and the theft of her watch and ring. On cross-examination, he testified that Miss Williams struggled throughout the incident, and that he was compelled to hold her leg at one point so that Lipscomb would not become angered and kill her.

Appellant contends that the testimony of Dabney, his jointly-indicted co-defendant, was instrumental in the finding of his guilt and thereby prejudiced him. He asserts that consideration of Dabney’s testimony at the joint trial vitiated his opportunity for a fair determination on the question of guilt or innocence because of the strong inclination of a co-defendant to give testimony incriminating his co-defendant and exonerating himself. In support of this contention, appellant relies upon Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, decided May 20, 1968.

Bruton reconsidered and overruled Delli Paoli v. United States, 352 U. S. 232, a case which held, in effect, that the trial court’s instructions to the jury to disregard a defendant’s confession implicating his co-defendant was a sufficient limitation on the effect of the hearsay admission and provided the non-confessing co-defendant with adequate protection on the issue of his guilt or innocence. The Bruton court concluded that in a joint trial before a jury the introduction of an extrajudicial statement of one defendant (who did not testify) which implicated his co-defendant violated the latter’s Sixth Amendment right to confront and cross-examine the witness against him. In that case, a joint jury trial for postal robbery, a postal inspector testified that one of the co-defendants, Evans, confessed to him that he and his co-defendant Bruton had committed the crime. The trial judge instructed the jury, in accordance with the Delli Paoli rule, that although the confessing co-defendant’s statement (that of Evans) was competent and admissible as against him, it was inadmissible hearsay against the other co-defendant (Bruton) and must be disregarded in determining the latter’s guilt. The Supreme Court, in reversing the conviction of Bruton, specifically held at 20 L.Ed.2d, 479-480, 485:

“We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.
í]í J¡< 5^
“[I]n Pointer v. Texas, 380 U. S. 400, we confirmed ‘that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him’ secured by the Sixth Amendment, * * *; ‘a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.’
“Plainly, the introduction of Evans’ confession added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.
* * *
“Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the coucededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.”

We think it clear from the above that the constitutional predicate underlying Bruton is the Sixth Amendment right of an accused to confront and cross-examine the witnesses against him. The present case is unlike Bruton, however, since here the confessing co-defendant, Dabney, did testify at the trial, and was cross-examined by the appellant, so that his Sixth Amendment right to confront and cross-examine Dabney was not violated. As the appellant had not closed his case prior to Dabney’s testimony, such testimony was, under the circumstances, properly in evidence as against the appellant. Of course, the testimony of Officer Helmick that Dabney had told him that appellant was the perpetrator of the crime was not admissible as against the appellant and the court properly so held. We conclude then that appellant’s reliance upon Bruton is ill-placed, the rationale of that decision not being applicable to the facts of this case.

Appellant’s further contention that his life sentence for rape constituted cruel and unusual punishment is likewise without merit. It is well settled that imposition of sentence in a criminal case in this State is a matter peculiarly within the province of the trial judge, Reid v. State, 200 Md. 89, Gee v. State, 2 Md. App. 61; and that a sentence within limits prescribed by law will be reviewed on appeal only where grossly and inordinately disproportionate to the offense to such an extent that the sen-tence was evidently dictated not by a sense of public duty, but by passion, prejudice, ill will, or other unworthy motive, James v. State, 242 Md. 424, Fisher v. State, 1 Md. App. 505.

The sentence imposed was within statutory limits, and there is no showing that it was prompted by any unworthy motive on the part of the trial judge. As the imposition of the death penalty for rape has been upheld as not constituting cruel and unusual punishment, see Jones v. State, 247 Md. 530; Dyson v. State, 238 Md. 398, cert. den. 388 U. S. 106, a fortiori, a life sentence for such crime violates no constitutional rights of the appellant.

Appellant’s final contention, in which he refers to “Miranda” statements and rights, although not clearly articulated, seem-ingly amounts to this: that the written waiver of appellant’s right to counsel at the police lineup was not knowingly and in-telligently made. The record discloses that there was no ob-jection made to the written waiver at the trial or to the lineup or in-court identification. As the point was not tried and de-cided by the lower court, it is not properly before us for re-view. Maryland Rule. 1085.

Judg~nents affirmed.

      . The Sixth Amendment right of an accused to confront and cross-examine the witnesses against him is applicable to State prosecutions. See Pointer v. Texas, supra.

        . As we recently noted in Smithson v. State, 5 Md. App. 378, the Supreme Court, in Roberts v. Russell, 392 U.S. 293, 20 L.Ed.2d 1100, 88 S. Ct. 1921, held that Bruton must be given completely retroactive application. While' the present case was tried several months prior to the decision in Bruton, and the constitutional principles articulated in that case would, therefore, inure to appellant’s benefit, we have found that under the particular facts of this case Bruton is not controlling.


author: Orth, J.,

text:
    JIMMY KEITH SIZEMORE v. STATE OF MARYLAND
    [No. 118,
    September Term, 1968.]

      Decided December 4, 1968.

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

      Harry J. Goodrick for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald C. Cole, Jr., State’s Attorney for Cecil County, and Julius A. Jodlbcmer, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Six questions are presented on this appeal relating to the following issues :

I Change of venue.
II Variance between the allegata and the probata.
III The admission of evidence.
IV The legality of the arrest and the reasonableness of the search and seizure.
V The sufficiency of the evidence.
VI Prejudice from the State’s Attorney’s comments to the jury.

The appellant was found guilty by a jury in the Circuit Court for Cecil County of grand larceny charged in the 5th count of the indictment, drawn under Md. Code, Art. 27, § 340, and larceny of a motor vehicle charged in the 9th count of the indictment, drawn under Md. Code, Art. 27, § 348. He was sentenced to 12 years on each conviction, the sentence on the 9th count to run concurrently with that on the 5th count.

I

THE MOTION FOR CHANGE OF VENUE

Prior to trial the appellant filed a motion for a change of venue and a hearing was held thereon. Rinda R. Boulden, called by the appellant, testified that she resided in Earleville. She identified a placard as being in most stores around the area. The placard offered a reward to anyone having information about the large number of robberies in the area. She said that the general feeling of the people in the community was that they were upset and bothered about the robberies and wanted to “put an end to it.” The appellant introduced four newspapers containing reports of crimes, articles on crime and letters to the editor on the subject. Three of the newspapers were circulated prior to the date of the commission of the crimes with which the appellant was charged. The other, published on the date of his crimes, bore a front page headline, “Police capture thief suspects.” The lower court found that none of the newspapers were inflammatory “or in any way remotely prejudicial” to the appellant, including the one carrying the factual report of the capture of the appellant and other suspects. It felt that the evidence — the newspapers, the placard and the testimony of the witness — did not meet the burden of persuasion that the appellant had been prejudiced. Holding that the appellant could receive a fair and impartial trial in Cecil County and his rights could adequately he protected by a full and complete examination of prospective jurors on their voir dire, it denied the motion. Whether or not non-capital cases should be removed is a matter within the sound discretion of the lower court. McLaughlin v. State, 3 Md. App. 515. The burden was on the appellant to show that he had been prejudiced by adverse publicity and that the voir dire examination of prospective jurors, available to him, would not be adequate to assure him a fair and impartial jury. See Seidman v. State, 230 Md. 305; Gray v. State, 224 Md. 308; Walter v. State, 4 Md. App. 373. We cannot say that the lower court was clearly erroneous in its judgment on the evidence and find no abuse of discretion in the denial of the motion for a change of venue. Md. Rules, 1086.

II

VARIANCE BETWEEN THE ALLEGATA AND THE PROBATA

The 5th count of the indictment charged that the appellant “unlawfully did steal, take and carry away” specified goods over the value of $100 of Warren Jay Gerhardt. The count listed certain particularly described goods as stolen and also alleged that goods generally described as “tools” were stolen. Evidence adduced by the State showed that only “1 blue tool box” particularly described in the count and certain tools contained therein, which would be included in the general designation of “tools” in the count, were the property of Warren Jay Gerhardt ; the other goods were shown to be the property of Cecil-ton Farm & Home Supply, a partnership, the partners being Warren Jay Gerhardt and his father. The appellant claims that the count was defective as not in accordance with Md. Code, Art. 27, § 605, which provides, in relevant part:

“In any indictment for any felony or misdemeanor wherein it shall be requisite to state the ownership or possession of any property whatsoever * * * which shall belong to or be in possession of more than one person, whether such persons be partners in trade, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to name one of such persons, and to state such property to belong or to be in possession of the person so named, and another or others as the case may be; and whenever in any indictment * * * it shall be necessary to mention for any purpose whatever any partners, joint tenants, parceners, tenants in common or trustees, it shall be sufficient to describe them in the manner aforesaid.”

We think it clear that the count did not state the ownership of those goods shown to be partnership goods in the manner stated to be sufficient by the statute. While it is not necessary to name each partner, the statute requires that one be named and to state such property to belong to the one named “and another or others.” The count here did not do so, placing ownership only in Gerhardt. But that the count did not state the ownership of the goods in the form stated to be sufficient by the statute as to partnership goods did not render the count defective. It made a proper allegation of ownership in an individual and was valid as framed. The question is, however, whether there was a variance between the allegation and the proof. That is to say, may a conviction of larceny be had under an allegation that the goods stolen were the property of Warren Jay Gerhardt on proof that the goods were the property of Gerhardt and another as co-partners. We do not think so. In Melia v. State, 5 Md. App. 354, we said, “Since larceny is a crime against possession, * * * an allegation of the ownership of the property alleged to have been stolen is a necessary requisite in a larceny indictment and proof of ownership as laid in the indictment is an essential factor to justify a conviction * * *.” (citations omitted) In Melia we held that there was a fatal variance when the allegation was that goods were owned by two corporations and the proof was that they were owned only by one corporation. Here the allegation was that goods were owned by one person and the allegation was not in the form stated to be sufficient as to ownership in that person and another as partners by Md. Code, Art. 27, § 605. As to those goods proved to be owned by that person and another as partners, the allegation was not sustained by the proof and there was a fatal variance. But there was also proof that certain of the goods designated in the larceny count, namely one blue tool box and some tools, were owned as alleged — by Gerhardt alone. Since “indictments for larceny * * * are sustained by proof of taking any part of the goods averred * * *, provided the punishment is the same, whether more or less is taken,” Hochheimer, Criminal Law, § 263, p. 167, this proof would have been sufficient to sustain the conviction of grand larceny if those items had a total value of $100 or more and if they were properly identified as having been stolen. There was evidence sufficient to show that the tool box had been stolen and was found in the possession of the appellant. The tool box was on a truck driven by the appellant. However, after he had been apprehended, custody of the box and its contents were not retained by the police but were given to the owner, Gerhardt. Gerhardt produced the box, filled with tools, at the trial. He identified the box and the tools which were in it at the time of the trial, as his, valued the box at $10 and the total value of the tools therein at $213.95, each tool being separately shown him and valued by him. But the tools in the box had not been inventoried by the police before they were returned to Gerhardt and we cannot find in the record evidence sufficient to show that the tools identified and valued by Gerhardt at the trial were the tools that had been in the box when it was stolen. It is clear that they were in the box when the owner brought it into court at the trial but it was not shown that they were the same tools which were in the box when it was stolen or when it was returned to him by the police. In the absence of such proof we think that the tools were improperly admitted in evidence. Therefore the only proof which could properly be considered as to the goods alleged in the larceny count showed that one blue tool box with a value of $10 had been stolen. This proof was not sufficient to sustain the allegation of grand larceny charged in the count and the judgment on that count must be set aside. The burden was upon the State to prove that the value of the goods taken was in excess of $100. Cofflin v. State, 230 Md. 139, 144.

Ill

THE ADMISSION OE EVIDENCE

The contention of the appellant under this issue, that the contents of the tool box were inadmissible for the reason that the chain of custody was not established, is rendered moot by our finding in II, supra.

IV

TUB LEGALITY OP THE ARREST AND THE REASONABLENESS OF THE SEARCH AND SEIZURE

During the trial the appellant moved “to suppress all tangible evidence” on the ground that the search and seizure of it without a warrant was unreasonable because his arrest was illegal. See Md. Rules, 729. After receiving testimony out of the presence of the jury, the lower court denied the motion, finding that the arrest was legal. The tangible evidence admitted was the tool boxes and tools seized as an incident to the arrest and were material to the conviction of grand larceny under the 5th count of the indictment. As we have set aside the judgment under the 5th count, the questions with regard to the legality of the arrest and the reasonableness of the search as a result of which the challenged evidence was seized are moot and we need not determine whether the lower court erred in denying the motion to suppress. We note that the truck, the stealing of -which by the appellant was charged in the 9th count, was, of course, not physically offered in evidence. A photograph of the truck was admitted in evidence without objection (counsel for the appellant specifically stated that he had no objection to its admission) and when arguing that the State should be required to bring in every item seized, defense counsel said, in response to an inquiry by the Court, “I am not raising an objection to the truck.”

V

THE SUFFICIENCY OP THE EVIDENCE

The question to which this issue is related is whether there was “evidence of intent to permanently deprive” the owner of the truck stolen of his property. The appellant does not contend that the evidence was not sufficient to show that the truck was taken and carried away by him against the will and consent of the owner. He argues, in effect, however, that while the evidence was sufficient to show larceny of the use of the truck as proscribed by Md. Code, Art. 27, § 349, it was not sufficient to prove the larceny of the truck as proscribed by § 348. The distinction between the larceny of a motor vehicle and the larceny of its use (commonly referred to as the unauthorized use of a motor vehicle) is that in the larceny there must be an intent to deprive the owner permanently of his property while in larceny of the use the intent is to deprive the owner temporarily. Gopshes v. State, 1 Md. App. 396. “The state of one’s mind or scienter is a question of fact. * * * And being subjective in nature, proof of wrongful intent is seldom direct, but is usually inferred from proven circumstances * * (citations omitted) Weaver v. State, 226 Md. 431, 434. The proven circumstances here were that the owner of the truck, a 1960 Chevrolet one-half ton pickup, orange and cream, had left it beside the back service door of his place of business, the L-J.C. Farm Store, in Cecilton, Maryland at the close of business on 22 August 1967. The ignition keys were not in it; they had been placed in the cash drawer and locked in the safe. He had not authorized anyone to use it. A witness saw a truck answering the description of the subject truck about 3:20 A.M. on 23 August. It went behind the Cecilton Farm and Home Supply, a hardware store. He called the police. He then saw that a car “had pulled away from the hardware store and went by his residence 'slow.’ ” The truck came “out from behind the hardware store” and followed the car “north on 213.” When the truck went behind the hardware store its lights were off but when it came out the lights were on. A Maryland State Police Trooper received a radio lookout in the early morning hours of 23 August. He proceeded toward Cecilton, and, a short distance from the Chesapeake City Bridge, saw a 1960 Buick and a pickup truck, “orange bottom and light top * * * was right behind it.” He followed the vehicles and, talking by radio with another officer, arranged to stop the lead vehicle while the other officer stopped the truck. They did so. The appellant was the driver and only occupant of the truck. The truck was later identified by the owner. It contained goods later shown to have been taken from the Cecilton Farm and Home Supply Store. The appellant gave an oral statement to the police which was admitted in evidence after the receipt of testimony on the issue of its voluntariness out of the presence of the jury. The appellant told the police that he had been hired to go to Cecilton. “He was advised that the situation had been set up.” A Thomas Knight drove him from Baltimore to Cecilton, where two other men, those apprehended in the car, told him where the truck was located. He was to drive the truck with the goods on it to Baltimore and leave it on a side street. He said “his take wasn’t that much to get involved in such a minor thing.” The appellant offered no evidence in his behalf.

Appellate review of the sufficiency of the evidence to sustain the conviction when the case is tried before a jury is predicated upon the denial of a motion for judgment of acquittal. Here such motion was made and denied and the evidence went to the jury. Thus our function is to determine whether the motion was properly denied and the test applied in such determination is whether the evidence showed directly or supported a rational inference of the fact to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Williams v. State, 5 Mel. App. 450. In the instant case the only fact to be proved with regard to the larceny of the truck which is disputed by the appellant on appeal is his intent to deprive the owner of his truck permanently. The question was fairly presented to the jury in the instructions of the lower court :

“The larceny of the vehicle, which is the ninth count, is the wrongful stealing, taking and carrying away, as I have defined the terms, of this vehicle with the intention to deprive the owner permanently of it; while unauthorized use of the vehicle, which is the tenth count, is the wrongful taking and carrying away of the property, but without the intention to deprive the owner permanently thereof, such as borrowing the vehicle to go on an expedition of your own but not really intending to keep it.”

We have no difficulty in determining that the evidence and rational inferences therefrom were sufficient for the jury to be fairly convinced beyond a reasonable doubt that the appellant intended to deprive the owner of the truck permanently. It is clear that he took the truck for the asportation of stolen goods and by his own admission he intended to abandon the truck in Baltimore for whatever disposition of it his confederates desired to make. This obviously did not indicate an intention to return it to the rightful owner. That his admitted intention was prevented from being carried out by the alertness and efficiency of the police does not compel a finding to the contrary. “[I]t has been held that if one takes another’s property without his consent, and abandons it at a place from which it is not likely to be returned to the owner or recaptured by him, it may be inferred that he intended to deprive the owner of it permanently, though he may testify that he only intended to use it temporarily.” Clark and Marshall, Law of Crimes, 6th Ed., § 12.04, p. 731. We think that the instant case is clearly distinguishable from the line of cases where a motor vehicle was taken for a “joy ride” so that the thief was guilty of larceny of the use and not larceny. See Cofflin v. State, 230 Md. 139; Anderson v. State, 3 Md. App. 85. The matter of the appellant’s intention was a question of fact for the determination of the jury and it, not this Court, weighs the evidence in reaching the determination. As there was legally sufficient evidence from which the jury could find the requisite intent, the denial of the motion for judgment of acquittal was not erroneous.

VI

PREJUDICE FROM THE STATE’S ATTORNEY’S COMMENTS TO THE JURY

After the lower court charged the jury the State made a closing argument to the jury. During the argument, defense counsel, out of the hearing of the jury, objected to certain remarks made by the State. The substance of the remarks was agreed to be that possession of recently stolen property raises an inference that the possessor is the thief and that the appellant had “not put on any evidence to refute that allegation.” Defense counsel’s objection was on the ground that the remarks constituted an improper comment on the failure of the appellant to testify. He requested an instruction and his request was refused. The State concluded its argument, defense counsel made his closing argument to the jury, the State made its rebuttal argument and the case was given to the jury.

As the jury are the judges of law as well as of fact in a criminal case, Constitution of Maryland, Art. XV, § 5, it is proper for counsel to argue the law to the jury. See Wilson v. State, 239 Md. 245. The law is clear that recent possession of stolen goods is evidence of guilt of the possessor and casts the burden on the possessor of such stolen goods to give a reasonable explanation of how he came into its possession. Anglin v. State, 1 Md. App. 85, 92. The substance of the challenged remarks of the State were a correct statement of the law. In its charge to the jury the lower court had correctly instructed them as to the presumption of innocence and the burden of proving the appellant guilty beyond a reasonable doubt. It also said:

“In this case you have no doubt noted that the defense has rested their case at the conclusion or immediately after the conclusion of the State’s case, and that they put on no evidence. The Court instructs you that the defendant in this case and in every criminal case has a perfect right to remain silent. He need not testify, he need not say anything, and there should be no inference drawn from his silence as to his guilt or innocence in any manner whatsoever. The State has the burden of proving the offense with which they have charged this defendant and it is not up to the 'defendant to prove his innocence, it is up to the State to prove his guilt.”

We think the instructions made it abundantly clear to the jury of the appellant’s right not to testify and we feel that the challenged remarks of the State cannot be construed as an improper comment on the failure of the appellant to take the stand. We find that the comments wTere not such as to require reversal of the judgments and that the lower court did not err in refusing to give additional instructions. See Md. Rules 756b.

Judgment under the 9th count of the indictment (larceny of a motor vehicle) affirmed; judgment under the 5th count of the indictment (grand larceny) reversed and case remanded for a new trial thereon.

      . Of course it is well settled that ownership may be laid in the real owner — general interest — or in the person in whose possession the goods were at the time of the theft — special interest — and that an allegation that a person is the owner may be sustained by proof that he has either a general or a special interest. See Petrey v. State, 239 Md. 601; Melia v. State, supra.

      . The precise point was raised at trial by appellant’s counsel when he objected to the admission of the tools. Both the court and the State “had the impression” that Gerhardt testified that “each individual item” was in the tool box when it was stolen and returned to him although the Assistant State’s Attorney said, “At least this is what I thought. I don’t know what the record says. It gets to a point any more you don’t know if you are coming or going.” The tools were admitted in evidence. We cannot find that the testimony bore out the impression of the court and the State.

      . The general rule that evidence is admissible where there is a reasonable probability of its connection with the accused or the crime, Veihmeyer v. State, 3 Md. App. 702, 708; Farley v. State, 3 Md. App. 584, 587, is not here applicable. That the tools were stolen was a necessary element of the corpus delicti which must be proved beyond a reasonable doubt, even though the corpus delicti may be proved by circumstantial evidence. See Gamble v. State, 2 Md. App. 271; Howard v. State, 1 Md. App. 379.

      . For a discussion of the history of the statutory proscription of larceny of the use, see Perkins, Criminal Lazo (1957) ch. 4, §§ 1, 11, pp. 330-331.