author: Murphy, C. J.,

text:
    BLAIR EUGENE SHELTON v. STATE OF MARYLAND
    [No. 133,
    September Term, 1967.]

      Decided March 20, 1968.

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

      John J. McBurney for appellant.

      Edward R. Jeunette, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Howard S. Chasanow, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellant, Blair Eugene Shelton, was convicted on January 17, 1967 of two counts of storehouse breaking and two counts of larceny by a jury in the Circuit Court for Prince George’s County, and sentenced to ten years in the Maryland Penitentiary on each count, the sentences to run concurrently. On this appeal the appellant contests the legality of his arrest and the admissibility of evidence seized incident thereto, the sufficiency of the evidence to sustain his conviction, and the propriety of the trial judge’s ruling disallowing his request to summon certain witnesses to testify in his behalf.

There was evidence adduced at the trial showing that in the early morning hours of February 1, 1965, at approximately 4:00 a.m., Officer Charles Roberts of the Prince George’s County Police Department was driving his police cruiser on Ager Road in the County when he observed an automobile backing into a parking space across the road from the Green Meadows Shopping Center in such a position “where it could observe the store fronts of the shopping center.” Officer Roberts continued down the road to assist an officer in another matter, but returned to the Green Meadows area between five and ten minutes later. He checked the rear of the stores in the shopping center, after which he pulled parallel to the car he had previously noted across from the shopping area, and approached the vehicle on foot. The officer tapped on the window of the car since it was covered with frost. The occupant mumbled something unintelligible, and Officer Roberts asked to see his driver’s license and registration card. At this point, the vehicle started up and speeded away, running a stop sign at Ager Road, and turning onto the East-West Highway, weaving from side to side on the roadway. Officer Roberts pursued and observed the automobile run a red light before he was able to stop it. The driver of the car, identified at the trial as the appellant, was ordered out of the car and arrested for the various traffic violations. The appellant at that time identified himself to Officer Roberts as Larry Rogers; however, Detective James Ross, who arrived at the scene shortly after appellant’s arrest, recognized him to be Blair Eugene Shelton. After Detective Ross’ arrival and identification, Officer Roberts looked into the automobile through the open door on the driver’s side and observed a walkie-talkie radio unit lying on the front seat. The car was then searched, and the radio seized. The officers, together with the appellant, then returned to the shopping center, driving around to the rear of the stores, where they observed an individual run from the rear door of the Melody Cleaners store. The officers gave chase, whereupon Detective Ross discovered William Blake lying in some brush in the wooded area directly behind the store. On the ground beside Blake, Detective Ross discovered approximately $373.00 in currency and numerous checks, some of which were payable to the Riggs Manor Pharmacy. In that same area, Detective Ross also found a walkie-talkie radio of the same make as that taken from the appellant. The two radios bore serial numbers 23419 and 23420 respectively, and it was demonstrated at the trial that communication was able to be sustained between them. Both walkie-talkie sets were introduced into evidence at the trial over appellant’s objection.

Bernard Prensky, the owner of the Riggs Manor Pharmacy in the Green Meadows Shopping Center, testified at the trial that on February 1, 1965 a hole had been made in the party wall separating his establishment from Melody Cleaners, that the safe in his store had been broken into, and that about $1900.-00 in cash and checks had been taken. George Rollins, owner of the Melody Cleaners, testified with respect to the hole in the wall, and further testified that the glass in the skylight of his place of business had been broken and the bars thereon removed. He also stated that the latches on the rear door had been broken and that about $195.00 in cash was missing.

At the conclusion of the State’s case the appellant stated in his own behalf that he wished to call three witnesses in his defense. Appellant’s counsel, however, declined to have these witnesses subpoenaed, as he believed that their testimony would be harmful. The trial judge expressed the view that matters of trial tactics were solely within the discretion of defense counsel and that he would not allow the appellant to dictate the defense of his case. The defense thereupon rested its case without calling any witnesses in its behalf.

Appellant’s principal contention is that the search of his vehicle which resulted in the seizure of his walkie-talkie radio was illegal and that the radio, being the fruit of that search, was improperly received in evidence below. We disagree.

While Officer Roberts did not have probable cause to believe that appellant had committed a felony at the time he arrested him, the arrest was nevertheless lawful since it was based upon multiple misdemeanors committed in the officer’s presence, namely the numerous violations of the motor vehicle laws of this State. See Braxton v. State, 234 Md. 1; Jenkins v. State, 232 Md. 529; Dixon v. State, 1 Md. App. 623; Crumb v. State, 1 Md. App. 98. As a general rule, where the arrest is lawful, the officers have a right to conduct a contemporaneous search incident thereto, both of the person of the arrestee, and of the property under his immediate control, including the motor vehicle which he was operating at the time of his arrest. Knotts v. State, 237 Md. 417; Lewis v. State, 2 Md. App. 678; Barton v. State, 2 Md. App. 52; Musgrove v. State, 1 Md. App. 540; Gaudio v. State, 1 Md. App. 455; Stokes v. State, 1 Md. App. 253. It has been held, however, that a police officer is not authorized to conduct a general search every time he stops a motorist for an ordinary traffic infraction. People v. Marsh, 228 N. E. 2d 783 (N. Y.); Lane v. Commonwealth, 386 S. W. 2d 743 (Ky.); People v. Thomas, 201 N. E. 2d 413 (Ill.) cert. den. 380 U. S. 936; Annotation, 10 A.L.R. 3d 314-354 (“Lawfulness of Search of Motor Vehicle Following Arrests for Traffic Violation”). This limitation — distinguishing between motor vehicle misdemeanors and other misdemeanor violations of the criminal laws—has not as yet been afforded any recognition by the Court of Appeals of Maryland. See Braxton v. State, supra, and Jenkins v. State, supra. We note, however, that the limitation on the right of the police to conduct a search incident to a full custodv arrest for a minor motor vehicle offense, is principally based upon the proposition that, ordinarily, there are no fruits or implements of a traffic offense for which to conduct a search. See Grundstrom v. Beto, 273 F. Supp. 912, and cases there cited. But one of the traditional justifications for permitting a search incident to an arrest is the need of the police to seize weapons and other objects that might be used to assault an officer or effect an escape. Preston v. United States, 376 U. S. 364; Lewis v. State, supra; St. Clair v. State, 1 Md. App. 605. While some courts have seen fit to speculate that there is no real need to search the ordinary traffic offender or his vehicle for weapons or other objects useful in facilitating an escape (see People- v. Marsh, supra), we are mindful, and are made more so each day, of those mounting cases where an officer is subjected to an attack by a motorist while investigating routine or minor traffic violations. We are persuaded that where a traffic offender is subjected to a full custody arrest, it is not per se unreasonable to search his person and, within limits, his vehicle for weapons or for means of escape. See Barnes v. State, 130 N. W. 2d 264 (Wis.); People v. Mayo, 166 N. E. 2d 440 (Ill.); People v. Gonzales, 97 N. W. 2d 16 (Mich.). In determining, therefore, whether a search for weapons or means of escape is valid following a full custody arrest for a traffic offense, we think the test to be applied is one of reasonableness, viz., whether, under all of the circumstances, the officer had reasonable grounds to believe that a search was necessary for his own safety or to prevent an escape.

The record before us discloses gross violations of the motor vehicle laws committed by the appellant in the dead of night and against a background giving rise to a reasonable suspicion on the part of the arresting officer that the driver of the vehicle had been positioned in the shopping center area as a look-out for some criminal enterprise, quite possibly burglary. When appellant refused to produce his driver’s license and registration card, as requested by Officer Roberts, he violated Sections 31, 97 and 181 of Article 66of the Maryland Code (1967 Repl. Vol.), each of which is constituted a misdemeanor by Section 338. When appellant ran through the several traffic control devices, he violated Section 192 and, in view of the testimony, his erratic driving was such as to undoubtedly constitute reckless driving within the meaning of Section 209. And when, after his arrest, he gave the police a false identification, he again violated the pertinent provisions of the motor vehicle Code of this State. Appellant makes no contention that, under these circumstances, he had a right, as a Maryland resident, to a summons and was not, therefore, subject to a full custody arrest. See Code, Article 66y2, Sections 321, 324. Whether viewed separately or collectively, the motor vehicle violations committed by the appellant cannot be characterized as routine or minor infractions; and we think, on the facts of this case, that it would have been the utmost in folly had the arresting officer not been concerned with his own safety, or with the security of his prisoner, who had already demonstrated a propensity to go to extreme ends to evade the police. That the officer was concerned with these factors is shown by the fact that he searched the person of the appellant at the time of the arrest. The walkie-talkie radio unit was in plain sight within the vehicle and readily accessible to the appellant at the time of his arrest. That it could have been used not only to effectuate an escape by summoning assistance for that purpose, but also as a weapon with which to assault the arresting officers, is too clear to require extended discussion. The taking of the radio did not involve a search in the usual sense of that term, Nestor v. State, 243 Md. 438; St. Clair v. State, supra; Dixon v. State, supra, and we hold that its seizure, substantially contemporaneous with the arrest, was entirely lawful and justified on the facts of this case by the need of the police to take into custody weapons or implements that the appellant might have used to harm the officers or make an escape.

Appellant further contends that the lower court erred in admitting the walkie-talkie radio seized from his car into evidence because it was not relevant to any issue in the case. As heretofore indicated, there was evidence showing that on the night of the burglaries, appellant had been seen in the area of the burgled stores parked in a position from which he could act as a look-out, that he had fled from the police when they sought his identity, that he had a walkie-talkie radio in his possession when arrested that night, and that shortly thereafter, the police caught William Blake in the proximity of the burgled stores with some of the fruits of the burglaries in his possession and with a walkie-talkie radio of the same make as that taken from appellant, bearing a serial number consecutive with that of appellant’s radio. There was evidence that communication could be sustained between the two radios, which tended to indicate that the radios constituted a means or instrumentality used in the commission of the crimes.

It is, of course, well established that evidence need not be positively connected with the accused or the crime committed in order to render it admissible; it is admissible where there is a probability of its connection with the accused or the crime, the lack of positive identification affecting the weight of the evidence, rather than its admissibility. Woodell v. State, 2 Md. App. 433; St. Clair v. State, supra. That there was a probability of connection between the appellant, his radio, and the crimes is, we think, abundantly clear and we find no error in the admission of the radio into evidence.

At the trial, the appellant expressed a desire to call three witnesses in his defense: (1) William Blake, a co-defendant, ostensibly to prove that there was no connection between him and the appellant; (2) a representative of the firm manufacturing the walkie-talkie radios, to establish that more than two radios work on the same frequency; and (3) the police officer who was cruising with Officer Roberts, to prove that the walkietalkie taken from appellant’s car had been situated under the seat, rather than on it as Officer Robert’s testimony indicated. Defense counsel, however, declined to call these witnesses, believing that Blake was not a credible witness, that bringing in a radio manufacturer’s representative would unduly emphasize the radios as evidence, and that the officer’s testimony would not be beneficial to his client. The trial judge stated that the calling of these witnesses was a matter of trial tactics committed to the judgment of defense counsel and that he should control presentation of the defense. The witnesses were not called, and the defense rested.

The decision whether to call a witness is ordinarily a matter of trial tactics within the discretion of defense counsel. Johns v. Warden, 240 Md. 209. Furthermore, where a party is represented by counsel, he is not entitled as a matter of right to examine witnesses or otherwise participate in the conduct of his trial. Strosnider v. Warden, 245 Md. 692. We think the record indicates that defense counsel had valid reasons for not calling the witnesses suggested by his client, and we see no error under the circumstances of this case in the court’s action.

Appellant next contends that the evidence was insufficient to support his convictions for grand larceny in that it was not established that amounts in excess of $100.00 were taken from each store. We cannot agree. Mr. Prensky, owner of the burglarized pharmacy, testified that the night before the burglary about $1900.00 was in his store, that about $500.00—$600.00 belonged to a money order agency, but that the rest belonged to him. He further testified that only about $65.00 remained in the store when he discovered that it had been burglarized. Mr. Rollins of the Melody Cleaners testified that about $195.00 was missing from his store, and that the entire sum belonged to him. It was also established that when William Blake was apprehended near the stores, about $373.00 in currency and checks, some of which were made payable to cash, and some of which were made out to the Riggs Manor Pharmacy, was found on the ground where he had been lying. In our view the record clearly supports the proposition that over $100.00 was taken from each store as a result of the burglary.

The final contention raised by the appellant is that his convictions for larceny were improper as they merged into his convictions for storehouse breaking. Appellant confuses his conviction of storehouse breaking with the offense of breaking and stealing, citing Tucker v. State, 237 Md. 422, and Crowe and Williston v. State, 240 Md. 144, both cases holding that conviction of both breaking and stealing and common law larcenjr, arising out of the same alleged acts, was improper. In the instant case, however, the appellant’s convictions were for storehouse breaking with intent to steal and larceny. That these offenses do not merge is entirely clear. See Tender v. State, 2 Md. App. 692, footnote 5, at page 700.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THOMAS CARTER HUNDLEY v. STATE OF MARYLAND
    [No. 165,
    September Term, 1967.]

      Decided March 20, 1968.

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

      Edward J. Birrane, Jr., for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylcm, Jr., State’s Attorney for Baltimore City, and C. A. Herndon, Jr., Assistant State’s Attorney for Baltimore City, on the brief for appellee.
   Per Curiam.

The Appellant, Thomas Carter Hundley, was convicted of illegally possessing narcotics by Judge J. Harold Grady, sitting without a jury, in the Criminal Court of Baltimore, and sentenced to two years under the jurisdiction of the Department of Correction.

In this appeal, the Appellant contends that (1) evidence obtained by a search of his person at the time of his arrest was improperly admitted since there was no probable cause for his arrest, and (2) the lower court’s refusal to compel the State to identify an informant was prejudicial error.

The record indicates that Officer Daniel Davis of the Baltimore City Police Department, accompanied by other officers, arrested the Appellant, without a warrant, in the vicinity of the 1500 block of Pennsylvania Avenue in the City of Baltimore on February 21,1967 at approximately 4:45 P.M.

A preliminary search of the Appellant’s person, conducted at the scene of the arrest, produced no incriminating evidence. Because of the cold weather and the excessive amount of clothing worn by the Appellant, the Officers decided to take him to the office of the Narcotics Unit, where a more thorough search revealed twenty-nine gelatine capsules containing heroin hydrochloride concealed near the Appellant’s waistline.

Officer Davis further testified that he and another police officer received information concerning the Appellant’s purported activities from a known and reliable police informer, who had furnished reliable information since 1960, and who had been responsible for the conviction of four narcotic offenders whose names he was prepared to reveal.

The information concerning the Appellant was given to the police on February 20, 1967, and indicated that the Appellant was actively engaged in the sale of narcotics in the vicinity of the 1500 block of Pennsylvania Avenue and that he could be found at that location at almost any time. The informer also indicated that the Appellant kept the narcotics in the waistband of his trousers. Additionally, the Appellant was known by Officer Davis as an addict and user of narcotics.

On cross examination Officer Davis was asked to reveal the name and address of the informer. An objection was interposed by the State and the matter was taken under advisement. Subsequently, the trial judge asked defense counsel if there was any evidence which the Appellant desired to offer bearing on the question of the necessity for revealing the informer’s identity. The Appellant then took the stand for this limited purpose and stated that he did not have “the slightest idea” who had given the information to the police. He further stated that although he lived in the Cherry Hill section of South Baltimore, he was in the neighborhood of Pennsylvania Avenue on the day of his arrest for the purpose of obtaining a haircut. He denied frequenting the area and also denied having heroin regularly in his possession. He admitted knowing Officer Davis and acknowledged that the officer knew him to be a user of narcotics.

The trial judge, after noting the testimony regarding the reliability of the informant, found that the officers had probable cause to arrest the Appellant and admitted the evidence seized from his person. The trial court further ruled, after reviewing all the testimony, that disclosure of the informant’s identity was not “necessary and material to the defense.” We agree with both rulings of the trial judge.

I.

It is now well established that information furnished to a law enforcement officer by an informer, together with the officer’s personal knowledge, may serve as the basis of sufficient probable cause for a warrantless arrest and search if the trial court is informed “with specificity what the informer actually said, and why the officer thought the information was credible”, and the court is satisfied such information was sufficiently reliable and reasonably trustworthy to give the officer, as a prudent man, probable cause to believe that the accused had committed or was committing an offense. McCray v. Illinois, 386 U. S. 300, 304; Draper v. United States, 358 U. S. 307; Brinegar v. United States, 338 U. S. 160, 175-176.

Here the trial court had before it the officer’s testimony in which he related the specific information given to him by the informer, the officer’s reasons for considering the information reliable and the officer’s personal knowledge that the Appellant was an addict. Since it is evident that the court was satisfied as to the reasonable trustworthiness of the informer’s information, it properly held that there was probable cause for the arrest. Accordingly, it was not error to admit the evidence taken from the Appellant as a result of the search incident to the arrest.

II.

In support of his contention that it was prejudicial error to deny him the name of the informer, the Appellant argues that the holding in Drouin v. State, 222 Md. 271, is controlling. We do not read Drouin in that light. In fact, Drouin simply states the converse of the rule discussed above and a new trial was there granted because “the trial judges did not purport to decide whether the names of the informers were material to the defendant’s defense or the determination of the issue of probable cause.” The court went on to say (p. 287):

“The evidence without the informers’ communications was insufficient to establish probable cause for the defendant’s arrest. * * * The officer did not state that he knew the informers to be reliable people, that they had ever furnished reliable information before nor anything else about them other than they were neighbors of the accused. * * * [I]f an officer be allowed to establish the probable cause for making an arrest by hearsay information that is alleged to have been received, without a thorough inquiry by the trial judge to satisfy himself of the reasonableness of the officer’s reliance on the informers, or any requirement that his source of knowledge be disclosed, or possibility that the hearsay evidence will be rebutted, it places very precious rights of the individual in serious peril.”

As indicated above, the trial judge here made a thorough inquiry to satisfy himself of the reasonableness of the officer’s reliance on the informer’s information and made an express finding that revelation of the informer’s identity was not necessary or material to the Appellant’s defense. Thus, the trial judge meticulously complied with the mandate of Drouin.

Finally, the Appellant’s contention that he was entitled to the informer’s name through his Supplemental Motion for Discovery is without merit since “there is nothing in Maryland Rule 728 which requires the State to include the name and address of an informer in its answer to a motion for discovery.” Lee v. State, 235 Md. 301, 304.

Judgment affirmed.

      . Appellant was wearing two pairs of trousers, two sweaters, a T-shirt and a heavy outer coat.

      . Prior to trial the Appellant had endeavored, unsuccessfully, to obtain the name of the informer by a Supplemental Motion for Discovery.


author: Orth, J.,

text:
    RICHARD ALAN DARBY v. STATE OF MARYLAND
    [No. 173,
    September Term, 1967.]

      Decided March 20, 1968.

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

      Edward A. Palomara for appellant.

      William. E. Braman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and Page J. Digram, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was convicted of robbery with a dangerous and deadly weapon by a jury in the Circuit Court for Montgomery County and sentenced to imprisonment for a term of 20 years.

On appeal from the judgment the appellant contends:

I It was error to read the indictments to the jury.
II The crime of robbery with a dangerous and deadly weapon does not exist in Maryland.
III His arrest was illegal and evidence seized incident thereto was improperly admitted in evidence.
IV As his defense was “coercion and duress from [the] co-defendant”, evidence proffered by him relevant thereto was improperly excluded, and the court erred in its instructions to the jury by failing to instruct on that issue.

I

Before any testimony was taken counsel for the appellant said, “We contemplate not reading—waiving the reading of the indictment.” The court pointed out that the jury takes the indictments into the jury room with them when they retire to deliberate, whereupon counsel said, “If the court feels that the indictments should be read, then would it instruct the clerk not to read the counts that were stricken.” The court replied, “The Court doesn’t think it is proper that one charged with a criminal offense that the charge not be read to the Jury under the regular form that the clerk uses, so for that reason, the court will not grant your motion to waive the reading of the indictments.” The clerk read" the indictments to the jury. It appears that the only count then “stricken” was the second count of indictment No. 8129 which apparently was “word for word the same” as the 5th cotmt in indictment No. 8128. In its instructions to the jury the court stated that “the second count in 8129 has been abandoned.” It said, “The fact that one has been indicted by the Grand Jury raises no presumption of guilt merely because a grand jury charges a person with a crime, it doesn’t mean he is guilty and you cannot infer that he is guilty because he has been indicted under the laws of this State.” At the conclusion of the charge, it said, “The fact that I am referring to all these counts and these indictments as such is not to be construed as an inference that you are to make any findings of guilty or not guilty because you are the sole judges of the law and the fact.” Upon the entry of a nolle prosequi to indictments Nos. 8129 and 8130 the court so informed the jury and it appears that they took only indictments Nos. 8127 and 8128 into the jury room and without objection.

Md. Rules, 558 a, provides :

“Upon retiring for deliberation, the jury may take with them into the jury room such of the pleadings, granted prayers or written instructions, and exhibits which have been received in evidence, as the court may deem necessary for a proper consideration of the case.”

“The jury may also take with them notes of the testimony or other proceedings taken by themselves but none taken by any other person”, Rule 558 b, but “[a] deposition may not be taken into the jury room, except by agreement of all parties, and with consent of the court”, Rule 558 d. The provisions of Rule 558 apply to a criminal case, Rule 757. “ ‘Pleading’ means any paper filed in any action * * *” as set forth in Rule 5 v, but “action” does not include a criminal proceeding, Rule 5 a. Therefore the Maryland Rules do not provide by express terms that the jury may take the indictment into the jury room. By the provisions of Rule 756 b and c, with the provisos therein set out, the court may and at the request of any party shall, give such advisory instructions to the jury as may correctly state the applicable law and in giving such advisory instructions may make such summation of or references to the evidence as may be appropriate in order to present clearly to the jury the issue to be decided by them. It is the accepted practice in this State for the court in its instructions to refer to the counts in the indictment in stating the applicable law and referring to the evidence, and we think it proper to do so. It is obvious that the jury in a criminal proceeding must be informed of the charges against a defendant in order to assess the evidence and apply the law in relation to the charges. We see no reason why, in the discretion of the trial court, this information cannot be conveyed to the jury by the indictment itself, by it being read to them and by the taking of it into the jury room. Of course, the court should inform the jury before it retires of those counts not before them by reason of the granting of motions of judgment of acquittal or otherwise, and we deem it advisable that the court state to the jury, as it did in the instant case, that the fact of indictment raises no presumption of guilt. We feel that it was not prejudicial error for the clerk to read the indictments to the jury in the instant case. We think that the Maryland Rules do not compel a holding to the contrary and find support for our holding in Delcher v. State, 161 Md. 475 and Bell v. State, 200 Md. 223. And we note that Wharton, in his Criminal Lem and Procedure (Anderson), Vol. 5, § 2033, p. 178 says:

“The practice sometimes adopted of reading the indictment or information to the jury as part of the prosecutor’s opening statement has been criticized but held not prejudicial error.”

The weight of authority in other jurisdictions is in accord with our view.

II

At the trial the appellant moved to dismiss the first count in each of indictments No. 8127 and No. 8128 charging robbery with a dangerous and deadly weapon, claiming that the offense charged is not a crime in Maryland. He urges that such offense was not a crime at common law and is not made a crime by statute. He argues that Md. Code, (1967 Repl. Vol.), Art. 27, § 488 does not “define a crime” but merely prescribes a penalty for a crime that does not exist. We agree that § 488 does not create a new substantive crime of “robbery with a deadly weapon.” The title to Chapter 457 of the Acts of 1927 reads as follows:

“An ACT to add an additional Section to Article 27, of the Annotated Code of the Public General Daws of Maryland, title ‘Crimes and Punishments’, subtitle ‘Robbery’, to be known as Section 481-A, (now § 488) and to follow immediately after Section 481, to prescribe increased penalties for the offense of Robbery with a dangerous or deadly weapon.” (emphasis added)

The Act reads:

“Every person convicted of the crime of robbery or attempt to rob with a dangerous and deadly weapon or accessory thereto, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment in the Maryland Penitentiary for not more than twenty years.”

We think it clear from the language and form of the title (the capitalization of the first letter in “Robbery”) and from the language of the Act that the Act merely provides a statutory penalty (and for the restoration of or payment for the thing taken) for the existing crime of robbery more severe when the robbery is committed with a dangerous or deadly weapon than when it is not. See Hayes v. State, 211 Md. 111, 115; Jackson v. State, 231 Md. 591, 593-594. Robbery is a crime in Maryland under the common law. It is not defined by statute but the penalty is fixed by statute. Md. Code, supra, Art. 27, § 486; Hayes v. State, supra, p. 113. It thus retains its common law definition—“the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear.” Clark and Marshall, Crimes, (6th Ed.) § 12.09, p. 781. So at common law the crime was robbery whether or not the violence or putting in fear was by means of a dangerous or deadly weapon. “Or if a person with a sword drawn begs an alms, and I give it to him through mistrust and apprehension of violence, this is a felonious robbery.” 4 Bl. Comm. 243. Section 488 clearly and simply provides that if the common law crime of robbery is committed with a dangerous or deadly weapon, the felon shall be subject to more severe punishment. The contention of the appellant that the section is indefinite and not “exacted with (such) exactness * * * (that) the public is able to know what act or acts are unlawful” is untenable. Stripped of its meretricious attractions of logicality, it stands bare as a purely sophistical argument. There was no error in the denial of the motion to dismiss the counts charging robbery with a dangerous and deadly weapon.

Ill

The police departments surrounding the Washington metropolitan area are connected by a mutual aid radio network, enabling any police department to broadcast to any other or all by “pushing activating tones. These tones activate receivers in other police departments. By hitting one button you can bring in a group of seven and talk to them all at one time.” The police departments of Montgomery County and Prince George’s County are connected with this “Quick Call System.” In the early morning of November 4, 1966 the communications division of the Montgomery County Police Department received a telephone call regarding an armed robbery at the Gulf gasoline station on Rockville Pike (the robbery charged in indictment No. 8128). Police cars were dispatched to the location of the crime and the police received information from the station attendant and another witness that there had been an armed robbery of the attendant and a description of the robbers and the car used by them—“Two white males, one approximately five ten, bushy haired, scars around his eyes. He was wearing a red jacket. The other a little shorter; both white males, wearing a blue shirt, dark pants and had a dark colored gun and had left the scene in a dark, a black vehicle, which he believed at the time to be a Chevrolet with the gas cap missing.” This information was given to the dispatcher at the communications division of the Montgomery County Police Department and he broadcast a lookout. About 1:30 A.M. the dispatcher received a call from John T. Ricketts, the attendant at the Shell gasoline station in the Wheaton Plaza Shopping Center (the robbery charged in indictment No. 8127). Ricketts reported he had been robbed and described the robbers and the car used by them. The dispatcher broadcast a lookout for this second “armed holdup” for “a 1956 or ’57 Oldsmobile, black in color, occupied by two white males, middle or late 20’s; one wearing a red jacket and the other wearing a blue shirt or black. It was last seen on South Georgia Avenue going towards 495.” About 1:45 A.M. the dispatcher broadcast a lookout to the mutual aid network, making it “with special attention to the Prince George’s and Fairfax County Police.” This broadcast was “the same lookout on the 1956 or ’57 black Oldsmobile, occupied by two white males in their middle or late 20’s; one wearing a red jacket, the other wearing either a black jacket or a blue shirt; armed with what was believed to be a .25 caliber revolver; last seen going out on Georgia Avenue toward 495.” At approximately 1:40 A.M. an officer of the Prince George’s police department, patrolling in a radio car, received a radio call broadcasting the lookout. About 10 minutes later he saw a “black Oldsmobile ’56, bearing Virginia tags,” answering the description in the lookout. He followed it about four blocks and then stopped it. “Upon stopping the car the operator got out of the vehicle and walked back towards mine.” He was wearing a “bright red jacket.” The “tall man in the passenger side of the car was wearing “a bluish-gray type of shirt, woolen with long sleeves.” Several other police cars arrived on the scene and the appellant and the passenger were arrested and the automobile searched. An automatic pistol was found under the right hand seat where the passenger was sitting, a clip for the pistol was found in the car and a suitcase containing a “change carrier” was recovered from the back seat of the car. The contention that the evidence seized by search of the car was improperly admitted in evidence because the arrest of the appellant was unlawful is without merit. An arrest may be made without a warrant, provided the arresting officer had probable cause to believe that a felony has been committed and that the person arrested committed it. Gaudio and Bucci v. State, 1 Md. App. 455, 463. Probable cause for an arrest exists where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Graham v. State, 239 Md. 521; Mulcahy v. State, 221 Md. 413; Michaels v. State, 2 Md. App. 424. The facts and circumstances may come within the officer’s knowledge by means of a lookout broadcast over the police radio system. Lamot v. State, 2 Md. App. 378, 384; Crumb v. State, 1 Md. App. 98, 107. We think it clear that the arresting officers in the instant case had probable cause to believe that a felony had been committed and that the appellant committed it. The arrest was therefore legal. Barton v. State, 2 Md. App. 52. The arrest being legal, the car under the control of the appellant was lawfully searched. Stokes v. State, 1 Md. App. 253; compare Sedacca v. State, 2 Md. App. 617. The evidence seized as a result of the lawful search was properly admitted in evidence.

IV

The appellant’s defense to the charges against him was that he was forced by his companion, Bush, to participate in the robberies. He admitted in his testimony that the car used belonged to him and that the pistol used was registered in his name. He bought the pistol in March of 1966 for protection when he operated a service station (the permit authorized him to keep it in the station), and, although he went out of business in August 1966, on the night of the robbery he had the pistol under the front seat of his car. The appellant testified that he, and three other persons had spent the earlier part of the evening at a tavern, drinking beer and dancing. Bush had gone to the tavern with them in the appellant’s car but was refused admittance because of a fracas at the place several nights before in which he had been involved. So Bush sat in the car drinking beer supplied by the appellant. After they left the tavern about 11:00 P.M., Bush and the appellant drove to a Texaco station in Rock-ville, allegedly so the appellant could request a mechanic he knew to be working there to accept a job with him (at the time the appellant was the manager of a motor and transmission specialty shop). The Texaco station was closed and he drove to the Adams Gulf station to get a dollar’s worth of gasoline. He went to the men’s room and when he returned Bush was sitting on a window sill in the back of the service station. “Bush jumped (the attendant) and pulled a gun.” He took the attendant’s money and a money changer. A bystander testified that Bush told the appellant to go get the car and bring it to the door and the appellant did so. A shot was fired but no one was hit. The appellant’s version was that he “turned and headed out to go out to start my car (60 feet away) to go ahead and leave * * * I started the car up and Bush came running out of the service station with this gun, which at the time I noticed was my gun.” He denied hearing a shot. He asked Bush for the pistol and Bush told him that if he tried to take it “he would blow my brains out.” He drove toward the Shell station. During this time Bush had the pistol in his belt and “at no time, up to this point” had Bush pointed the pistol at the appellant’s head or any part of his body. The appellant drove to the Shell station “because I had no cigarettes * * * I parked the car to keep Bush from coming into the station.” The appellant walked into the service station “and asked for change for cigarettes.” Bush had remained in the car but the appellant does not contend that he asked for help or attempted to escape. The attendant opened the cash register and “Bush came and held a gun on myself and Mr. Ricketts (the attendant) and told me to take the money and give it to him. He put the money in his pocket. Bush walked me and the other man out of the station with the gun and he told the man to run out to the woods and Bush and I walked to the car and I drove off.” Ricketts testified that the appellant and Bush entered the station together. The appellant “wanted change for a ten dollar bill, which he handed me the ten dollars and I took it. As I was getting his ten dollars change out of the cash register, the tall one (Bush) stepped around the short one and stuck a pistol in my ribs and said, ‘This is a stick up. Give me all the money you got.’ So, nothing I could do but give them the money. I give them all I had. The short fellow, (the appellant) * * * took—he took it all but the pennies * * * the short one took all the money but the pennies and he stepped through and walked on out of the Shell station and I guess he went and got in his car. The tall one, he didn’t go. He said, ‘Well you go, with me,’ the tall one did. So, as I went out the door he said, ‘Grab the bathroom key.’ As I took the key he—I went around to the bathroom door with him. I was in front of him. He had had the pistol in my back. I did what the man told me and he told me to stay around there and he said if you poke your head out I’ll blow it off. So I stayed around there. I didn’t come out until after I seen him move away.” The attendant then called the police.

We are not presented with the question of the sufficiency of the evidence to sustain the conviction, but, it is clear that the testimony of the victims and other witnesses and the tangible evidence admitted were ample for the jury to find the appellant guilty beyond a reasonable doubt of directly participating in the robbery and that he had not acted under “coercion and duress.” But, even though the appellant himself realized by his own admission, in the words of his counsel, that “your story sounds fantastic, that this man had a gun and forced you to go and do these things”, the issue was raised and was for the jury to determine.

On the issue of “coercion and duress” the appellant contends that “the exclusion of testimony from the jury that a co-defendant (Bush), not being tried, was confined in a mental institution was reversible error.” During the appellant’s direct examination he was asked, “Where is Mr. Bush now?” The State objected and the objection was sustained. He then testified that he and Bush were together in the Montgomery County Detention Center and that he was sent, by court order, to “Clifton State Perkins, which is the mental hospital for the State of Maryland.” He was asked, “Where was Mr. Bush?” and the State’s objection was sustained. There was no proffer as to what the appellant’s testimony would be in response to the questions to which objection was made and we cannot say that the trial court abused its discretion in sustaining the objections. See Magness v. State, 2 Md. App. 320, 324. The appellant proffered the testimony of “a noted neurologist and medical physician” to the effect that Bush was taken to the neurological clinic at Holy Cross Hospital where the physician examined him. The result of the examination was that Bush was suffering from traumatic epilepsy and “a chronic organic brain disease, a deteriorated condition, as a result of the use of alcohol.”' The physician examined records of the D. C. General Hospital which showed that Bush “suffered from a subdural hematoma and was operated on. He further examined the records from the Clifton T. Perkins Mental Hospital in the year 1965, where * * * Bush was committed * * * and the psychiatric case workup of * * * Bush at Clifton T. Perkins State Hospital for the examination which is presently being done * * In answer to a hypothetical question to be presented the physician would state that at the time of the robberies Bush was “a highly impulsive and dangerous individual.” The State objected to the admission of the testimony proffered and the objection was sustained. We think the court acted properly within its discretionary power. Bush was not on trial. We do not feel that the fact that Bush was “highly impulsive and dangerous” was so relevant to the issue of “coercion and duress”, under the circumstances here present, as to compel the admission of the excluded testimony. As was said in Stewart v. State, 1 Md. App, 309, 317 “[T]he real test of admissibility is the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue should be admitted.” The rule as to exclusion of irrelevant evidence was stated by the Court of Appeals in MacEwen v. State, 194 Md. 492, 501 (quoted in Huber v. State, 2 Md. App. 245, 261) as follows:

“The application of the rule results in the exclusion of all evidence of collateral facts or of those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; the reason being that such evidence tends to divert the minds of the jury from the real point in issue, and arouse their prejudices.”

We think that the proffered testimony met this test for exclusion.

At the conclusion of all the evidence counsel for the appellant stated that he did not wish the court to instruct the jury 'but the State requested that it do so. Therefore the court was •obliged to instruct, Md. Rules, 756 b, and so informed counsel. Counsel for the appellant objected to any instructions. The ■charge to the jury did not contain a statement of the applicable law on the defense of duress and coercion. At the conclusion of 'the charge, defense counsel, out of the presence of the jury, said 'to the court, “[T]he defense is put in the curious position of having to insist the Court instruct on duress and coercion. * * * I requested no instructions be given and I objected when 'the instructions were given. I am now left in the position of •either having to instruct on duress or coercion, reading it myself but if I read it myself it doesn’t have the strong effect as •having come from the Court.” He read into the record the instruction he then desired:

“Since it is essential to a crime that the defendant committed a voluntary act, it is a defense as to all crimes other than the taking of the life of an innocent person, that the defendant did not act voluntarily but acted under a compelling force of coercion or duress. In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. Mere fear or threat by another is not sufficient to constitute a defense.”

"The above quoted request for instructions was taken from 1 Whartoris Criminal Law and Procedure, § 123. The Court refused to give the instructions as requested by the appellant be-cause it thought them incomplete. Wharton continues :

“The defense of duress is not established by proof that the defendant had been threatened with violence at some prior time, if he was not under any personal constraint at the time of the actual commission of the crime charged. The defense cannot be raised if the apprehended harm is only that of property damage, or future but not present personal injury.
The compulsion must be of such a character as to leave no opportunity to the accused for escape. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm.
The defense cannot be claimed if the defendant by his own fault or misconduct created the emergency or necessity which confronted him.”

The court offered to read to the jury the entire statement from Wharton but counsel for the appellant said, “I would like the statement read that I just read into the record * * * I do not wish you to read the whole article.” He objected to the instruction suggested by the court. The court said, “I am not going to piece meal it * * * I will instruct my way, not your way; not piece meal.” Defense counsel replied, “Very well. I am going to have to do that because the weight of your words is so heavy, as Your Honor well knows.” We conclude from the entire colloquy between the court and defense counsel that when defense counsel said, “Very well, I am going to have to do that * * *” he meant that he would have to object to the reading of the entire statement and that he did not want the court to give the instruction as suggested by it. The court acceded to his wishes. The appellant cannot now complain. Md. Rules, 756 f. We agree with the court that the instruction requested by defense counsel was incomplete and as such did not “correctly state the applicable law.” This is so, particularly in view of the evidence before the jury from which it could properly find that the appellant had an opportunity to escape, that he was not under any personal restraint at the time of the actual commission of the crime and that he had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. See People v. Tallent, 200 P. 2d 214 (Calif. 1948); Shannon v. United States, 76 F. 2d 490 (10th Cir. 1935); Annotation, 40 A.L.R. 2d 909, 911; Perkins, Criminal Law, (1957), p. 846; Clark and Marshall, Law of Crimes, (6th Ed.), § 5.16, pp. 325-329.

Judgment affirmed.

      . Although the appellant was charged jointly with Vincent Roe Bush under four indictments which were consolidated for trial, he was tried alone. He was convicted only under the first count of indictment No. 8127 pertaining to the robbery with a dangerous and deadly weapon of John T. Ricketts of $177.80, the property of Cary P. Spencer, trading as Spencer’s Wheaton Plaza Shell, a gasoline station. Neither indictments Nos. 8128, 8129 and 8130, nor the docket entries pertaining thereto, are included in the record before us, but it appears that indictment No. 8130 charged assault with intent to kill Ricketts, that indictment No. 8128 charged robbery with a dangerous and deadly weapon of the attendant at another gasoline station and indictment No. 8129 charged assault with intent to murder that attendant. Before any evidence was proffered the State “abandoned” the second count of indictment No. 8129, it being “word for word the same” as the 5th count in indictment No. 8128. At the conclusion of all the evidence, upon motion of the State, a nolle prosequi was entered as to indictments Nos. 8129 and 8130 and the jury was so informed. The jury found the appellant not guilty of the offenses charged in indictment No. 8128.

      . See: Bruce v. United States, 351 F. 2d 318 (5th Cir. 1965); United States v. Press, 336 F. 2d 1003 (2nd Cir. 1964); Shayne v. United States, 255 F. 2d 739 (9th Cir. 1958); Urban v. State, 387 S. W. 2d 396 (Tex. Crim. App. 1965)—but the indictment cannot be entered in evidence; Stubblefield v. State, 114 S. E. 2d 221 (Ga. App. 1960); People v. Potter, 49 Cal. Rptr. 892 (1966). Compare: Getchell v. United States, 282 F. 2d 681 (5th Cir. 1960).

      . In Tender v. State, 2 Md. App. 692 we noted, but did not reach, the question of whether § 488 created a distinct crime or merely increased the penalty for robbery when committed with a dangerous or deadly weapon.

      . Article 5 of the Declaration of Rights of the Constitution of Maryland declares “that the Inhabitants of Maryland are entitled to the Common Daw of England * * See State v. Buchanan, 5 Har. & J. 317.

      . Md. Code, supra, Art. 27, § 489 states a formula sufficient to use in an indictment for robbery with a dangerous or deadly weapon. This in no way affects our finding that § 488 does not create a substantive crime. The formula is in accordance with the generally accepted rule, recognized by this Court, that the purpose of a criminal charge, by indictment or otherwise, is to inform the accused of the charge he is called upon to defend and to protect him against a subsequent prosecution for the same offense. Jackson v. State, supra, p. 596; Lank v. State, 219 Md. 433, 436. A formula is also stated for robbery in § 487.

      . It appears that testimony proffered by the State on the issue of probable cause for the arrest was excluded on the ground that it was hearsay. We point out that on the issues of probable cause and the lawfulness of arrest and of the admission of evidence obtained through any search made in connection with the arrest, direct evidence to show the basis upon which the arresting officers acted, even if hearsay, is directly relevant and is admissible. Nadolski v. State, 1 Md. App. 304-308.


text:
    DONALD F. DOXZEN v. DIRECTOR, PATUXENT INSTITUTION
    [No. 79,
    September Term, 1967.]

      Decided March 21, 1968.

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

This is an application for leave to appeal from an order of March 1, 1967, by Judge Joseph R. Byrnes, sitting in the Criminal Court of Baltimore, redetermining that applicant is a defective delinquent as defined by Md. Code (1967 Repl. Vol.), Art. 31B, § 5.

Applicant was convicted of assault and sentenced to one year in the Maryland House of Correction on October 3, 1960, and sent to Patuxent Institution for examination. Subsequently, he was found to be a defective delinquent on October 13, 1961, and confined to Patuxent Institution. He was redetermined to be a defective delinquent on February 24, 1964, and was recommitted to Patuxent. He filed his second petition for a redetermination of his status on January 20, 1967.

In this application for leave to appeal, filed by his attorney, the applicant raises the following obj ections:

(1) “That there was no evidence legally sufficient produced by the State for finding by the Court that Donald Doxzen was a Defective Delinquent.”
(2) “That the only testimony that the State produced was that of Dr. Harold Boslow, who testified from reports made by others at the Patuxent Institution that the defendant was a defective delinquent; that many of the records were prepared by unqualified persons, not psychiatrists or psychologists, but social workers, etc.”
(3) “That the frequent examinations as specified under the Act were not conducted, either actual or visual examinations.”
(4) “That the original sentence of one (1) year imposed on Doxzen has long since expired, but he is still detained at the Patuxent Institution.”

In the memorandum in support of the application for leave to appeal, this additional contention is raised:

(5) “The Defendant seeks an appeal on the theory that there was a failure of the Institution to provide any recent psychiatric treatment; that he is being incarcerated at Patuxent in the same manner as any prisoner at Maryland House of Correction, where the defendant was originally sentenced to one (1) year.”

In regard to the first and second contentions, they will afford the applicant no relief as the testimony of Dr. Boslow, the Director of Patuxent Institution, constitutes legally sufficient evidence to support a finding of defective delinquency. The fact that Dr. Boslow may have relied upon the reports of other members of his staff does not make his testimony inadmissible. Murel v. Director, 240 Md. 258; Gilliard v. Director, 237 Md. 661. The applicant had the right to summon any of the persons whose names appeared on these reports. Blakney v. Director, 239 Md. 704.

In regard to that part of the second contention which states, that many of the reports were prepared by unqualified persons, we note that the principal report relied upon by Dr. Boslow is an Interval Note, dated February 28, 1967. This is signed by Doctor Boslow, the Director of Patuxent Institution, another doctor, a psychiatrist and a psychologist. Applicant does not substantiate his allegation by naming the reports to which he objects. The proper place to have raised this objection was at the applicant’s hearing, and not here, for the first time.

The third allegation, that frequent examinations were not conducted, is another bald allegation, without any attempt to show specifically what applicant means, or how this has prejudiced him. Thus, it must be dismissed. See McCoy v. Warden, 1 Md. App. 108.

The fourth contention, that applicant’s original sentence has expired, is merely a statement of fact without any attempt to show a violation of applicant’s rights. Moreover, since the Maryland Defective Delinquency Act has been held to be constitutional, Director v. Daniels, 243 Md. 16, the applicant is thus being held under a law which is constitutional on its face.

The fifth contention is apparently based on the recommendation of Dr. Philip F. Lerner, a court appointed psychiatrist, that applicant would in his opinion, benefit more from treatment at Rosewood State Hospital than continued treatment at Patuxent Institution. Dr. Harold M. Boslow, also a psychiatrist and Director of the Patuxent Institution, recommended that he be continued at Patuxent. We cannot say that the fact that the trial court accepted Dr. Boslow’s recommendation was erroneous, especially when the applicant’s history shows that he benefited very little, if any, from a previous seven years of treatment at Rosewood. Both psychiatrists agreed that he was a defective delinquent within the meaning of the Statute at the time of the trial, and the report of Dr. Boslow stated specifically that he was a threat to society. The record shows affirmatively that he is being given the benefit of an educational program and group therapy.

Application denied.


text:
    JOSEPH DAILEY v. WARDEN, MARYLAND PENITENTIARY
    [No. 91,
    September Term, 1967.]

      Decided March 21, 1968.

    Before Murphy, C. J., and Anderson, Morton, Orti-i, and. Thompson, JJ.
   Per Curiam.

This is an application for leave to appeal from an order filed' on July 6, 1967, by Judge James K. Cullen, sitting in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

Applicant raised six contentions in his petition ;

1. He was denied the assistance of counsel at the time he made oral statements.
2. His oral statements were made after being confronted with evidence obtained through an illegal search and seizure.
3. The evidence used in court was insufficient to support a verdict of guilty to a charge of burglary.
4. The judge at his trial was biased.
5. His indictment and trial were invalid because of the decision in Schowgurow v. State, 240 Md. 121.
6. His court appointed counsel was incompetent in failing to properly prepare the appeal from applicant’s conviction and in persuading applicant to waive his rights under Schowgurow, supra.

As found by the lower court, applicant’s first contention has no merit. The Supreme Court ruling in Miranda v. Arizona, 384 U. S. 436 (1966) is not retroactive so as to cover applicant’s trial in 1964, Watson v. Warden, 2 Md. App. 134. Escobedo v. Illinois, 378 U. S. 478 (1964) will also not afford applicant relief as there is no allegation nor any evidence that counsel was requested by applicant and denied by the police, see Curnyn v. Warden, 1 Md. App. 450.

The second contention, that the oral statements should have been suppressed since they were made after being confronted with evidence obtained as a result of an illegal search and seizure, was considered twice by the Court of Appeals of Maryland. Dailey v. State, 234 Md. 325; Dailey v. State, 239 Md. 596. Both times it was held that although the arrest of applicant was illegal and the resulting search and seizure was unlawful, the statements made by applicant were freely and voluntarily given. Since Dailey v. State, 239 Md. 596 was an appeal from the conviction which is presently being contested in this petition, this issue has been “finally litigated” within the meaning of Maryland Code (1967 Repl. Vol.), Art. 27, § 645A (b) and thus cannot be raised again under the Uniform Post Conviction Procedure Act. Husk v. Warden, 240 Md. 353.

The third contention, that the evidence was legally insufficient to support the verdict, cannot be raised under the Act. Husk v. Warden, supra; Fisher v. Warden, 230 Md. 612. This is a proper subject for direct appeal.

Petitioner’s fourth contention is that the judge at his trial was biased. The lower court held that this allegation was not properly raised under the Act on the authority of Bryant v. Warden, 235 Md. 658. However, the law has changed and many contentions which were formerly not grounds for relief under the Act may now be raised. See Fennell v. Warden, 236 Md. 423; Ledbetter v. Warden, 234 Md. 643. A contention of bias on the part of the trial judge is one that alleges a violation of the constitutional right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution. Tumey v. Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); State v. Justice Court, 202 P. 2d 927 (Wash. 1949); Sheppard v. Maxwell, 231 F. Supp. 37 (S. D. Ohio 1964); Ex Parte Wallace, 152 P. 2d 1 (Calif. 1944); United States v. Denno, 313 F. 2d 364 (2nd Cir. 1963), cert. den. 372 U. S. 978. Since the allegation of bias on the part of a trial judge is an allegation of a denial of due process, or deprivation of a constitutional right, it could be properly raised under the Uniform Post Conviction Procedure Act. See Md. Code (1967 Repl. -Vol.), Art. 27, § 645A (a) ; Jackson v. Warden, 236 Md. 634; Gee v. State, 239 Md. 604. And this contention has been considered under the Act before. See Jacobs v. Warden, 232 Md. 627. However, since the lower court also found no bias, in fact, for this allegation, it will afford the applicant no relief.

In regard to the fifth and sixth contentions, the court correctly found that applicant had freely and voluntarily waived his right to be retried by reason of the Schowgurow decision, supra, and that applicant’s counsel was competent under the standard set forth in Slater v. Warden, 241 Md. 668.

Application denied.

      . U. S. Cert, denied in 384 U. S. 913; U. S. Reh. denied in 384 U. S. 947.


text:
    HAROLD SCOTT v. STATE OF MARYLAND
    [No. 189,
    September Term, 1967.]

      Decided March 22, 1968.

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

      Michael Lee Kaplan, with whom was Morris Lee Kaplan •on the brief, for appellant.

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

delivered the opinion of the Court.

The appellant was convicted in the Criminal Court of Baltimore before Judge Thomas J. Kenney, presiding without a jury, of breaking the dwelling house of James Edward Jones at 901 Duncatel Street with intent to steal and of grand larceny of Jones’ properties. He was sentenced to imprisonment for a term of 10 years for each offense, the sentences to run concurrently.

On appeal from the judgments, he first contends that a culpatory statement admitted in evidence was not made by him to the police freely and voluntarily because he had been denied a request to call a lawyer and because he had been induced to confess by a promise of the police to release a female companion taken into custody with him.

Evidence adduced by the State was that the appellant was observed about 1:15 P.M. on October 12, 1966 by police officers Nicholas Caprinello and Francis Baker while he was walking in the 900 block Whitelock Street carrying a record player answering the description of one stolen in a burglary. A girl, Regina Carter was with him. When the officers first rode by the appellant he placed the record player on the ground next to a parked automobile and continued walking. They accosted him and he told them the record player belonged to Regina. She denied it, stating that it belonged to the appellant. Fie said he was taking it to be fixed but “simultaneously she said they were taking it to her mother’s.” There was a record on the player but the appellant could not tell them the name of the song recorded. Regina said, “Well, we haven’t done anything wrong. You can go over and look in our apartment, if you want to.” About that time Sergeant Donald Bedsworth drove up and gave the officers “certain information, which caused us to place Mr. Scott under arrest at that time * * * He was arrested for investigation of homicide.” Immediately upon placing him under arrest, Caprinello, according to his testimony, warned the appellant in accordance with the procedural safeguards required by Miranda v. Arizona, 384 U. S. 436. The appellant made no statements at that time. Baker and Regina went to the apartment at 912 Whitelock Street, second floor. Baker saw “several articles sitting around—lamps, television, clocks—which to me seemed familiar with the articles that had been taken in a previous burglary.” As a result of “information received” from Regina “certain items” were removed from the apartment and taken to the Northern District Police Station. The appellant was taken to the Northern District Police Station and “again advised of his rights” by Beds-worth in the presence of Caprinello and Baker. The appellant was confronted with the articles recovered from the apartment and after talking to Regina, stated that he and another “fellow” had broken in the house at 901 Duncatel Street and took the articles. They carried them to Regina’s apartment. On cross examination Baker said that no threats were made to the appellant, no one told him that “if in the event that he didn’t make a statement, he might get a lengthy sentence,” no promises were made to him, and no officer told him that if he made a statement Regina would be released. Baker did not recall whether the appellant requested “her release if he made a statement.” The testimony above summarized was apparently accepted both as to the voluntariness of the statements and on the issue of guilt or innocence of the appellant, but we think it clear that the testimony of what the appellant said was admitted subject to exception pending the determination of the court on the question of voluntariness. Defense then produced the appellant “solely for the purposes of testifying as to the question of whether your statement was freely and voluntarily given.” He said he was 25 years of age and had a 10th grade education. He denied that he had placed the record player on the ground and said he was still carrying it when the officers came up. He told the officers it was Regina’s record player and that he had just come out of the apartment across the street. “I said it was the apartment of Regina’s, and I told him that. He took Regina— he say well, I would like to check on this, and he took Regina across the street and seen the landlord. The landlord evidently verified that she—.” At this point his counsel interjected another question. He denied that he was given the Miranda warnings while on the street. The officers “got the merchandise out of the apartment * * * but then her apartment wasn’t mine, so I didn’t object.” He was then taken to the station house “directly to the Sergeant’s Room.” Caprinello, Baker, a sergeant and another officer were present. He was questioned in an attempt “to find out information about this — about different items they took out of the apartment,”—lamps, the record player and a television were in the room. Another officer, whose name he did not know, came into the room and looked at the articles taken from the apartment “* * * and he called the Sergeant out of the room, and the Sergeant—when the Sergeant came back, he say, this look like some merchandise that we had word of two days ago. He say, I got you now, and went out to pull the records for this burglary.” When the Sergeant came back with the records he told the appellant, “I will advise you of your constitutional rights; say anything that you say could be held against you * * He stated that he was not threatened but that he told them “I would like to have a counsel, I’m not going to make any more statements until I have a lawyer.” This was about 4:00 P.M. and then he was placed in a cell. The next morning about 9 :00 A.M. the Sergeant, in the presence of another officer whom he thought to be Baker, but he was not sure, said that “if I go on and made a statement and make it light on everybody else around them, they would make it light on myself; and, then, make a statement, and I can get Regina off * * * And they say, if I make a statement and verify that she didn’t know anything about it, that they would cut her loose. And when I say cut her loose, to release her * * * They told me to put it down on tape, on a tape recorder. So all the officers came back into the room, I made the statement on the tape recorder, and right after we left out of the room, the Sergeant gave Officer Caprinello orders to go down and release her.” The appellant did not depart from his direct testimony in any substantial detail on cross examination. He was positive in his denial that he made a statement on the day of his arrest and that he confessed that he took “the merchandise along with another man” only on the following day at which time his statements were taped. He “made no statements on the street with regard to the burglary.” He maintained that he confessed only because he “wanted Regina out.”

At this point the court found as a fact that the initial contact of the officers with the appellant was an accosting and that the appellant had placed the record player on the ground and walked away from it when he saw the officers. It found as a fact that the officers notified the appellant of his constitutional rights on the street; that he made no admission on the street; that he was advised of his rights in the station house again; that after he was advised of his rights, he was shown the merchandise and that he did not ask for a lawyer. It accepted the version of the police officers as to what the appellant said to them. The court admitted the testimony as a voluntary statement. But it appears from the record that the court permitted the issue of voluntariness to be reopened. Defense counsel informed the court that the appellant now alleged that the officers admitted to the judge presiding at the preliminary hearing that he had requested an attorney and that the judge had ■excluded the admission at the hearing for that reason. The court gave defense counsel an opportunity to explore the matter and court adjourned until 2:00 P.M. When court reconvened defense counsel stated that he had been unable to reach the hearing judge. The court granted counsel’s request to allow him to make further effort “to check out (the hearing judge’s) possible testimony” but proceeded with the balance of the State’s ■case consisting of testimony of James E. Jones and his wife concerning the breaking of their premises and the properties stolen. After the State rested, defense counsel said he would prefer to withdraw his motion for judgment of acquittal and to strike the testimony as to the admission until the hearing judge had been contacted. He requested a continuance which the court granted, saying, “* * * [I]t is possible and conceivable that if he (the hearing judge) had any testimony, that then to reflect on the credibility of the officers with respect to advice given about constitutional rights and the timing of when the admissions were made, and it might very well have a bearing on the admissibility of this, which I am asked to pass on now.” After a recess the court was informed that both the State and defense counsel had talked to the hearing judge who said he “really has no independent recollection of the case at all.” He suggested that the clerk at the “Northern Court” be called “to check the Docket Sheet to see whether he made any notation on this case.” The clerk was unable to do so until after 4:00 P.M. The court felt that the State and defense counsel had talked to the hearing judge about different matters, the State about a record player and the defense counsel about a recorder on which the confession was taped. It stated it would like to know if the hearing judge knew “whether the police ever admitted (the appellant) asked for a lawyer and when it was.” The State offered to bring the officers back and the court stated, “I think you ought to have them back here for any possible rebuttal.” The case was continued until the next day. When trial was resumed defense counsel reported that he had talked to the hearing judge and that the judge had “no recollection of this particular case.” Defense counsel renewed his motions for judgment of acquittal and to strike the testimony as to the admission. The court said, “I deny both motions without prejudice.” We conclude from the language of the denial that the court was reserving a final ruling until it considered other evidence on the matter which might be produced. The defense offered the appellant, not solely as to the voluntariness of the admission, but on the merits. His testimony as to the events prior to being taken to the police station was substantially the same as his previous testimony. When he was taken to “the Sergeant’s Room at Northern Police Station” they questioned him and Regina about the merchandise taken from Regina’s apartment. “This session went on for about an hour.” It was then that another officer came into the room, looked at the merchandise and called the Sergeant out of the room. The Sergeant came back and told the appellant, “We got you now” and mentioned Duncatel Street and “the Joneses.” Then he notified him of his “rights”. After he had been given the Miranda warnings he asked to have a lawyer. He was not furnished a lawyer “but the questioning stopped, then. They didn’t ask me no more questions.” The next morning about 9:00 A.M. he was returned to the “Sergeant’s Room” and Sergeant Bedsworth said, “Well Scott we got you * * * the only thing that will save you a little time, a little formality—save us some time and formality, say, go on and confess to the crime and I promise you we will turn Regina loose. I thought about it for a while. Well, 1 was thinking about it really all that night * * * I’m trying to get in touch with a lawyer, but I don’t have any money right now. And, then, the Sergeant, like I said, the Sergeant gave me this proposition, saying that if I go and make a confession to the crime, put it on a tape recorder—because he had a small tape recorder in the room—and put it on tape, that he would turn Regina loose. So, when Regina came back and the rest of the officers came back into the room, he say, do you want to make any statements, and I said, yes, sir, I do. And he took out the tape recorder, and fixed it up, and Regina started to object, but I stopped her. I say, well, you just go on and keep quiet, and I will take care of this. And I went on and made a confession.” After he made the statement Regina was “immediately released.” In his testimony at the trial he denied breaking into the premises and taking the properties.

Officer Baker was recalled by the State in rebuttal. He said that, when the appellant was taken to the police station, Beds-worth “first advised him, before speaking to him, of his constitutional rights * * * The defendant was advised that he didn’t have to say anything at this time; that he could have a lawyer present if he wished; and he was advised that anything that he said could be held for or against him. If he didn’t have counsel, the State would appoint him one.” At that time he was confronted with the property taken from Regina’s apartment. After he talked to Regina “who came in, he stated that he and another fellow, whose name I cannot remember, had broke in the house at 901 Duncatel Street * * * he stated that those were the articles taken in the burglary. And he took them to Regina’s house. The friend took some of them, and he took some of the others.” Baker testified that no one told the appellant that things would go easier with him if he made a statement; no one made him any promises; no one told him that Regina Carter would be turned loose if he made a statement; and that the appellant did not request a lawyer. Baker was in the appellant’s presence during the entire interrogation.

Officer Caprinello was recalled by the State in rebuttal. He testified that upon telling the appellant that he was under arrest, on the street he “advised” him of his constitutional rights and by his testimony at this time he gave him all the required warnings. The appellant made no statements at that time nor did he ask for an attorney. His testimony as to the events at the station house were the same in all material aspects as that of Baker. It was brought out on cross examination that Regina Carter was released the next day.

Sergeant Bedsworth was called by the State in rebuttal. His recollection as to the Miranda warnings given on the street omitted the second one but otherwise was substantially the same as the testimony of the other officers as to the events prior to the interrogation of the appellant at the station house. His testimony as to the warnings he gave the appellant at the station house omitted the warning that anything the appellant said could be used against him in a court of law and the right to the “presence of an attorney”, although he told him of his right to have an attorney. His testimony as to the substance of the appellant’s admission was the same as that of the other officers. He denied telling the appellant that “things would be a lot easier for him if he confessed to this crime; that he had better confess or Regina would be held; or that Regina would be released if he made a confession. On cross examination he stated that the appellant gave the “exact same statement” the following day which was recorded on tape. He said that at the preliminary hearing the appellant told the judge that he had given a statement “free and voluntary” and that he had not requested the presence of an attorney.

Defense counsel again moved for a judgment of acquittal and to “strike out the alleged admission of the defendant, that it was not freely and voluntarily given.” The motions were denied. We think from the record that it was by this ruling that the trial court actually determined that the confession was freely and voluntarily made. The credibility of the witnesses and the weight to be given their testimony are matters for the trier of facts. David v. State, 1 Md. App. 666. We do not think that the trial court was clearly erroneous in finding that the constitutional warnings to which the appellant was entitled under Miranda were afforded him, that they were given prior to his custodial interrogation, that the appellant had not requested a lawyer before he confessed, that he had not been denied an opportunity to call a lawyer, that the police had not promised him that Regina would be released if he confessed, and that the confession was otherwise voluntary. We hold that the confession was properly admitted.

The appellant next contends that his arrest was illegal and that the articles taken from Regina’s apartment were improperly admitted in evidence. The short answer is that the legality of the arrest is here not material since the articles were not seized as a result of a search of the appellant’s person or of premises with regard to which he had standing to object. See Nadolski v. State, 1 Md. App. 304. The trial court accepted the testimony of the police officers that when the appellant saw them “he put the record player down and walked away from it.” The appellant thus abandoned it and cannot object to its seizure. Davis v. State, 2 Md. App. 630. It is clear from the record that the apartment was that of Regina Carter and further that she consented to the search of it. The appellant testified that “* * * her apartment wasn’t mine, so I didn’t object” (to the search of it). See Fisher v. State, 1 Md. App. 505; compare Dorsey and Gladden v. State, 2 Md. App. 40. There was no error with respect to the admission of the evidence concerning the articles.

The last two contentions of the appellant go to the sufficiency of the evidence to sustain the convictions. Julia Jones testified that when she left her premises, 901 Duncatel Street, on October 10, 1966 the front door of her apartment was locked and closed. Her husband, James E. Jones, testified that when he arrived home shortly after noon of that day (he had left the apartment before his wife), “the door had been busted open and everything.” It was the front door and “somebody busted in, threw their body up against it, or took a hammer or something and bust it open.” They identified the articles recovered by the police as belonging to them and as stolen from the apartment. The value of the articles was shown to be in excess of $100. They did not know the appellant and did not give him permission to have the articles in his possession. The corpus delicti was proved and the criminal agency of the appellant was proved both by his confession and his possession of the record player, recently stolen. Allen v. State, 2 Md. App. 740; Scott v. State, 2 Md. App. 705. The judgment of the trial court on the evidence was not clearly erroneous and we may not set it aside. Md. Rules, 1086.

Judgments affirmed.

      . However, from Caprinello’s testimony it appears that the appellant was not informed at that time that if he could not afford an attorney one would be appointed for him prior to any questioning, if he so desired.

      . At this point in the trial both Caprinello and Baker testified, and later in the trial Bedsworth testified in rebuttal as to what Bedsworth said to the appellant. By their composite testimony it appears that Bedsworth informed the appellant with respect to all of his rights as required by Miranda. The appellant did not contend at his trial and does not contend on appeal that all the Miranda warnings were not given him.

      . By the testimony of the other officers all the warnings were given. The omission in Bedsworth’s testimony goes to its weight, a matter for the trial court.

      . The taped confession was not offered in evidence.

      . The appellant, as we have noted, did not allege that all the Miranda warnings were not given him in the station house. His. attack on the admission of the statement, both below and on appeal,, is solely on the grounds that he was denied an attorney and induced to confess by the promise to release Regina. He did not at his trial, and does not on appeal, contend that he did not fully understand that he had a right to remain silent, that anything he said could be used against him in a court of law, that he had the right to the presence of an attorney, and that if he could not afford an attorney one would be appointed for him prior to any questioning if he so desired. Although the record does not show that he expressly waived those rights, Miranda does not compel an express, waiver and recognized that there may be a fully effective equivalent to the warnings required and the waiver necessary. 384 U. S. 476. In Johnny Mack Brown v. State, 3 Md. App. 313, we discussed at length the question of waiver and concluded that “ * * * the-ultimate determination of whether the (individual) knowingly and intelligently waived his Miranda rights before making a statement is governed, in the final analysis, by whether the particular facts- and circumstances surrounding the case are such as to demonstrate-an intelligent and intentional relinquishment or abandonment of a known right or privilege.” See also United States v. Hayes, 385 F. 2d 375 (4th Cir.). In any event we think that the existence of a waiver was implicit on the facts and circumstances of this case. The appellant does not allege a physical coercion and the record shows none. We have found that the evidence believed by the trial court was sufficient for it to find that there was no psychological coercion by way of promises or inducements or otherwise. As was-stated in Hayes, supra, p. 378, “Moreover, it is noteworthy that at no stage in the proceedings has the appellant ever denied that he understood the warnings given him, and while a defendant does not have the obligation to testify himself or to offer testimony, a court cannot supply evidence that is lacking.” In the instant case the appellant testified at length on two occasions during his trial and his testimony did not indicate that he was other than knowledgeable and intelligent, at least commensurate with his age and experience and above his 10th grade education. During his testimony with respect to his version of the circumstances leading to his confession, the substance of which he admitted he made as testified by the officers, he said that, at the time of his arrest on the street,. “I didn’t ask for a lawyer because they keep telling me that this, would only be a few minutes.” He agreed that at the station house he was told that he “didn’t have to say anything,” he “had a right to a lawyer” and that if he could not afford one, a lawyer would be appointed for him. lie thereupon requested a lawyer. He admitted that he knew he was confessing to a crime and did so for two reasons—one, to “save Regina” and two, “because I knew the statement on the tape recorder couldn’t be admitted in court.” He alleged that he did not make the statement the day of his arrest because “I didn’t have a lawyer present, and I didn’t really commit the burglary.” But when he did confess the day after, he had “thought about it for a while. Well 1 was thinking about it really all that night,” and confessed “because I know what he was trying to do wasn’t legal” (tape the confession). Asked if he had ever heard how he might get in touch with a lawyer, he said, “Well, I could have phoned a lawyer, but at the time I didn’t have any money” (to make the phone call). He did not allege he asked to' make such a call. In answer to an inquiry as to whether he was “familiar with the procedures in a police station” concerning questioning by the police he said, “I had heard several things, but I don’t know the law, as a lawyer would, or the way I would be able to fight in court. I do know certain things. I have an idea of how my constitutional rights should be—should be protected and how the police should interrogate. I am aware of some things. I don’t know—not compared to a lawyer.” He admitted he was “aware of the consequences of what would happen to you if the statement you made were admitted in court” and agreed that “in spite of that * ** * made the statement so that Regina would be let loose from the station house.” There was no “mere silence of the accused followed by grudging responses to leading questions” which could be afforded little probative value, Hayes, supra, p. 378, but a plain statement that he had broken into the premises and stolen the articles. Although the trial court found that the appellant had not requested a lawyer prior to his confession and that he had not been promised that Regina would go free if he confessed, we think from all the facts and circumstances in the record before us, that the trial court could properly find, as was implicit in its ruling that the confession was admissible, not only that the procedural safeguards of Miranda were followed but that the appellant fully understood them and voluntarily waived them, in the hope, not induced by the police, that Regina would go free, and with the expectation, well founded or not, that his confession would be inadmissible in court for technical reasons.

      . Actually it was a photograph of the articles, including the record player recovered when the appellant was accosted, that was admitted in evidence. Objection to it was only on the ground of the alleged illegal arrest.


text:
    GARY EDWARD MEADOWS v. STATE OF MARYLAND
    [No. 217,
    September Term, 1967.]

      Decided March 22, 1968.

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

      Ralph S. Greil for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, State’s Attorney for Anne Arundel County, and T. Joseph Touhey, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant came to trial in the Circuit Court for Anne Arundel County under an indictment charging escape. He pleaded guilty. The court rendered a verdict of guilty and sentence him to a term of one year “to run consecutive with any other sentences you are now required to serve for any prior convictions.”

On appeal from the judgment the appellant contends that:

I The plea of guilty
a. did not “constitute a knowledgeable and intelligent plea”;
b. it precluded the introduction by him of evidence bjr State’s witnesses which could have corroborated the facts alleged by him when he took the stand to show mitigation.
II He did not commit an escape within the meaning of the statute proscribing the crime.
Ill His rights were denied because he did not know that he had a right to have his sentence reviewed by a Review Panel.

I

a. In support of this contention the appellant alleges that he believed he would get a lighter sentence if he entered a plea of guilty. The record shows that the lower court made an examination of the appellant sufficient to show that the plea was free and voluntary. The examination adduced that the appellant had discussed the plea with his counsel, that he realized that it was an admission that he escaped, that none of the State’s Attorney, the police or “anyone at the House of Correction” had made him any promises in consideration of his entering a guilty plea—“that you might get a lighter sentence or something of that nature”, that he was pleading freely and voluntarily, that he was 21 years of age and had graduated from high school. With regard to penalty, the record discloses :

“COURT: And do you realize the penalty you can receive in this case ?
DEFENDANT MEADOWS : Yes Sir.
COURT: You can get up to 10 years in addition to whatever sentence you’re serving.
DEFENDANT MEADOWS: No sir, That is not what 1 was told.
COURT: Well, that is what the penalty is. That is the maximum penalty. What were you told ?
DEFENDANT MEADOWS : Three years was the maximum.
COURT: Well, that is the maximum if you are at the Maryland Correctional Institution at Hagerstown, not at the Maryland House of Correction.”

After the appellant answered all the questions with regard to the plea, the Court asked, “Do you still wish to plead guilty?” ■and the appellant replied, “Yes sir”. It is clear that before the verdict was entered, the appellant was fully informed as to the maximum penalty for the crime, and that there was no reason for him to expect a lighter sentence than one year, which it is noted, was two years less than the penalty the appellant at first thought was the maximum for the offense. This contention is without merit. See Blake v. State, 2 Md. App. 492; Gopshes v. State, 1 Md. App. 396; Charles v. State, 1 Md. App. 222.

b. The contention that “the entry of a plea of Guilty tended to-preclude the introduction into evidence by Appellant of evidence by State Officials which would have corroborated Appellant’s narrative of what transpired at the time of the Appellant’s purported offense” is frivolous. A statement of facts was presented to the court by stipulation. The appellant was afforded full opportunity to give his version of the escape and did sounder oath. He made no request that other witnesses be called on his behalf.

II

The appellant contends that he did not escape from a lawful place of confinement as specified in Md. Code (1967 Repl. Vol.), Art. 27, § 139. He was serving a sentence of three years-in the Maryland House of Correction for housebreaking. He was assigned to the engine room detail. He testified that he had been working outside of the institution for three days. On the day of his departure he had finished his work and “went back to the engine room”. He was standing outside the engine room when a truck drove up containing an inmate, who was-driving, and an officer. The officer told him to get in the truck and they drove to Laurel to pick up some supplies. While they were loading the truck, the appellant asked permission to use the bathroom in a restaurant. He was granted permission but when he came back the truck was gone. He walked down Washington Boulevard to a tavern at Jessups Road. He entered the tavern and asked a man for a dime to use the telephone. He “was going to call the institution”. The man was drunk and refused to give him a dime but bought him a drink. Instead of calling the institution, he just stayed there. The man kept buying him drinks and he got drunk. The man took him to Baltimore. “And then it was too late to go back to the institution”. He was apprehended in Las Vegas, Nevada almost eleven-months later. He claims he did not escape but was abandoned.

This Court discussed the crime of escape in Fabian v. State, 3 Md. App. 270. Under the statute there is no distinction between an escape from within prison walls and one effected when the prisoner was outside the prison area. The use of force is not a requisite of an escape. See also Slagle v. State, 243 Md. 435; Ford v. State, 237 Md. 266; Best v. Warden, 235 Md. 633; Johnson v. Warden, 196 Md. 672. Even assuming that the appellant’s version was correct, his departure was clearly a violation of the statute.

Ill

By the provisions of Md. Code (1966 Repl. Vol.), Art. 26, §§ 132-137, effective July 1, 1966, a person convicted of a crime, if eligible as therein set forth, is entitled to have his sentence reviewed by a panel of three or more trial judges of the judicial circuit in which the sentencing court is located. Md. Rules, 762, effective July 1, 1966, established the procedure for review of sentences and was promulgated to implement the provisions of the statute pursuant to the mandate of Art. 27, § 138. Md. Rules, 719 b 6, delineating the extent of duty of counsel appointed by the court to represent an accused, provides that the authority and duty of such counsel “* * * Shall continue in all respects from the date of such appointment until the imposition of sentence.” The rule continued with regard to counsel advising the accused of his right to appeal and, effective July 1, 1966 was amended to include such advice as to the right to apply for a review of sentence. Thus at the time sentence was imposed on the appellant the pertinent part of the rule provided, as to the extent of such counsel’s duty after the imposition of sentence:

“Thereafter counsel shall advise the accused concerning his right to appeal and his right to apply for a review of his sentence. If directed by the accused, counsel shall assist in the preparation of an application for review of sentence under Rule 762 (Review of Sentence) and an order for appeal, and shall file same over the signature of the accused.”

The appellant was represented by counsel appointed by the court in the trial of the instant case (other counsel was appointed to represent him on appeal) and that counsel had the duty to. advise the appellant of his right to apply for a review of his sentence. The appellant now alleges that he did not know of this right, implying that his counsel did not so advise him. The record before us is silent as to whether counsel did or did not so advise him, but in any event we do not think that the matter is properly before us on direct appeal. The sentence did not exceed the maximum permitted by law, and the appellant does, not.claim that it was cruel and unusual or that its imposition was an abuse of the discretion of the trial court. We hold that the contention is not material to the validity of the judgment attacked on direct appeal. If, under proper proceedings, it is shown that the appellant was eligible to apply for a review of his sentence and that his counsel did not so advise him, the result, at best, would be the grant of a belated application for review of the sentence.

Judgment affirmed.

      . This is so only when the escape from the Maryland Correctional Institution does not involve an assault, as in the instant case. See Md. Code (1967 Repl. Vol.), Art. 37, § 139.

      . Although it cannot be determined from the record before this Court, the appellant claims he had 1 year, 1 month and 20 days to serve on his previous sentence. As his sentence of 1 year in the instant case was “to run consecutive with any other sentences” required to be served for any prior convictions, the sentences exceeded 2 years as defined in § 133.