text:
    DAVID ROBERT PROCTOR, a/k/a John Stanley Williams, a/k/a Robert Sylvester Proctor, Jr. AND RONALD STANLEY PROCTOR v. STATE OF MARYLAND
    [No. 21,
    September Term, 1981.]

      Decided October 8, 1981.

    The cause was submitted on briefs to Gilbert, C. J., and Morton and Thompson, JJ.

      Submitted by Alan H. Murrell, Public Defender, and Victoria S. Keating, Assistant Public Defender, for appellants.
    Submitted by Stephen H. Sachs, Attorney General, Patricia E. McDonald, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Jimmy L. Hill, Assistant State’s Attorney for Montgomery County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

David Robert Proctor and Ronald Stanley Proctor, the appellants, were tried by jury in the Circuit Court for Montgomery County and convicted of theft. Subsequently, David Robert Proctor was sentenced to a term of five years’ imprisonment and Ronald Stanley Proctor was sentenced to a term of three years’ imprisonment.

The appellants present three questions:

1. Whether the evidence was sufficient to sustain the convictions;

2. Whether the trial court erred in allowing the State’s witness, Rupert Curry, to testify as to the value of the stolen guns; and

3. Whether the evidence was sufficient to support the sentences imposed.

FACTS

Jerome Proctor testified for the state as part of a plea agreement. He stated that on March 11,1980, he was outside his home with Roderick McKinney and Alonso Clayton, when he was approached by his brother, David Robert Proctor, who asked him to "run him over this girl’s house.” Jerome agreed and the four entered into a green Pontiac LeMans registered to a third brother, Ronald Proctor. Jerome testified that after driving a short while they encountered Ronald Proctor driving a white Ford Torino. The two cars pulled over and Robert proceeded to exit the green car and enter the white Torino with Ronald. The two cars drove towards a residential area of Rockville and stopped in front of a single family home. Jerome stated that Robert, McKinney and Clayton went up to the house. A few minutes later McKinney and Clayton returned carrying some guns. The guns were placed in the back of the green car and the two cars left the area. On their way home both vehicles were stopped by the police.

Alonso Clayton also testified for the state as part of his plea agreement. His testimony was similar to Jerome’s in that he placed himself, Jerome and McKinney in the green Pontiac and Robert and Ronald in the white Ford leading the way to Rockville. Clayton testified that the two cars parked in front of a single family home whereupon McKinney went to the door, knocked, and returned to the car stating that no one was home. According to Clayton, Jerome suggested that they leave but "Bobby [Robert] said since there was nobody in that home let’s hit it.” Robert then went up to the front door accompanied by Jerome and kicked it in. Clayton testified that he and McKinney followed Robert and Jerome into the house. McKinney and Robert went upstairs and Jerome and Clayton ran downstairs where they found a cabinet containing guns. The guns were seized and the four subsequently left the house. Clayton admitted that he had signed statements in which he averred that neither Robert nor Ronald Proctor had anything to do with the instant offenses but stated that they were not true. These statements were allegedly made at the instigation of Robert and Ronald who told him if he would sign it "they could beat this charge.” Clayton stated that he had originally agreed to plead guilty but would not testify for the state, however, upon learning that he might only receive 18 months instead of the possible ten year sentence, he thought he "might as well go ahead and do it.”

Jerome Schaffer testified that at approximately 2:00 p.m. on March 11, 1980, he was driving on Maryland Avenue when upon looking to the left he observed three individuals in the yard of a residence. One individual was carrying what appeared to be "three long guns ... one of which appeared to be a shotgun.” The individual carrying the guns appeared to be walking to a vehicle parked along the curb described as a "white over green or perhaps light green over a darker green” full-sized General Motors automobile, being either a Pontiac, Oldsmobile or a large Chevrolet. Schaffer drove past the house, turned around and drove past again. At some unspecified point he observed a second vehicle which was painted a white or off-white color. Schaffer was unable to recall where the white car was located in reference to the green. He then observed the three individuals enter the green car and drive away at a fast rate of speed. Schaffer looked toward the house and saw that the front door had been left open. He then observed a Montgomery County Police cruiser heading towards him. He signalled to the officer and told him that he believed there had been a housebreaking.

Officer Ronald Gabriel testified that he was the officer whom Schaffer had flagged down. From Schaffer and another individual at the scene, Gabriel received descriptions of the housebreaking suspects and the vehicles involved. After speaking with the two individuals, Gabriel went to the house in question and checked the front door. He found that it had been kicked in. He subsequently put out a bulletin based on the descriptions given.

Officer Edward P. Hickey testified that he was involved in the stop of the two cars. He stated that he had observed three black males in the green vehicle and two in the white vehicle and that prior to stopping the automobiles, the green vehicle had been in front.

Detective David Hutchinson testified that he had been called as an investigator in the case. From Ronald Proctor, the driver of one of the vehicles and from Jerome Proctor the driver of the other, Hutchinson obtained consent to search both cars. From the back of the green car a television, typewriter, jewelry box and five guns were seized. Additionally, Hutchinson testified that both cars were listed with the Department of Motor Vehicles as belonging to Ronald Proctor.

Ronald Proctor testified stating that on the day in question, Robert, Jerome, Clayton and McKinney decided to visit some girls they had met the previous weekend. They took two separate cars; Jerome driving the green and Ronald driving the white. Ronald stated that on the way he stopped to get gas with Robert in the car, and the others left in the green car stating they would be back. Subsequently the green car returned and the driver signalled to follow them to the girls’ house. The green car stopped in front of a house while Ronald turned his car around and parked. According to Ronald, by the time he had parked the car, the three were running out of the house with some guns. He stated that they did not put the guns in his car because he drove off before they had a chance.

Sufficiency of the Evidence

The incriminating evidence against appellants, Ronald and Robert Proctor, consists primarily of the testimony of two witnesses: Jerome Proctor, brother of the appellants, and Alonso Clayton. The two witnesses’ testimony, while contradictory as to certain specificities, placed both appellants at the Maryland Avenue residence and showed both of them to be an integral part of the crime. It is clear, however, that an accused cannot be convicted upon the uncorroborated testimony of an accomplice. Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977). See also, Hillard v. State, 286 Md. 145, 158, 406 A.2d 415 (1979); Bennett v. State, 283 Md. 619, 392 A.2d 76 (1978); Bishop v. State, 39 Md. App. 384, 385 A.2d 1206, cert. denied, 283 Md. 729 (1978); Jeandell v. State, 34 Md. App. 108, 366 A.2d 79 (1976); Borza v. State, 25 Md. App. 391, 335 A.2d 142, cert. denied, 275 Md. 746 (1975). Thus, the issue is whether the state met its burden of introducing sufficient corroborative evidence to sustain the convictions.

With respect to the degree of corroborative evidence the Court of Appeals observed in Brown v. State, supra, 281 Md. at 244:

"Not much in the way of evidence corroborative of the accomplice’s testimony has been required by our cases. We have, however, consistently held the view that while the corroborative evidence need not be sufficient in itself to convict, it must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself.... If with some degree of cogency the corroborative evidence tends to establish either of these matters, the trier of fact may credit the accomplice’s testimony even with respect to matters as to which no corroboration was adduced.... That corroboration need not extend to every detail and indeed may even be circumstantial is also settled by our cases.” (citations omitted).

Aside from the accomplice’s testimony implicating the appellants, corroborative evidence has been adduced from the testimony of Jerome Schaffer, Officers Gabriel, Hickey and Hutchinson, and the appellant Ronald Proctor. First, Jerome Schaffer testified that he observed three individuals in the yard of a residence, one of whom appeared to be carrying rifles. Although his description of the vehicles involved was hazy, he was nevertheless able to note the existence of two cars; one being a "white over green or perhaps light green over a darker green” full sized General Motors automobile and the other being a white or off-white color. Upon their departure Schaffer observed that the front door of the residence had been left open. He thereupon flagged down Officer Gabriel and gave him a description of the individuals and the cars involved. Officer Gabriel testified that he put out a bulletin for a white car and a green car which had been seen in the area of the burglary. Officer Hickey testified that within minutes of the bulletin he stopped two vehicles meeting such description, arrested the individuals and impounded the cars. The five individuals arrested were later identified as the two witnesses, Jerome Proctor and Alonso Clayton, the two appellants, Ronald and Robert Proctor, and Roderick McKinney. Finally, Ronald Proctor testified in his own defense. Corroborating evidence was adduced in that he admitted being at the scene of the Maryland Avenue burglary.

In Jeandell v. State, supra, 34 Md. App. at 110, this Court noted that "[i]t would be sufficient by way of corroboration for the State to show, by way of non-accomplice evidence that the appellant was in the company of the perpetrators of the crime in the general vicinity of the crime scene and at about the time when the crime occurred.” See also, Ham, Lee, Bailey and Cole v. State, 7 Md. App. 474, 480-81, 256 A.2d 362 (1969), cert. denied, 256 Md. 745 (1970). Such fact was clearly demonstrated in the present case in that both appellants were arrested along with the accomplices minutes after the burglary occurred. This evidence, along with the observation of the vehicles by Jerome Schaffer and the admission by Ronald Proctor as to his association with the accomplices at the time of the burglary, provides sufficient corroboration of the accomplices’ testimony under the standard established in Brown to support the conviction of both appellants, Ronald and Robert Proctor.

Testimony as to the Value of the Stolen Goods

The appellants contend that the trial court erred in allowing the State’s witness, Rupert Curry, to testify as to the value of the stolen guns. Curry, the grandson of the deceased owner of the guns, testified that he was familiar with the guns in that he had taken care of them since his grandfather’s death two years prior to this case. Additionally, he testified that he owned a gun similar to the stolen shotgun. In Lamot v. State, 2 Md. App. 378, 383, 234 A.2d 615 (1967), we noted: "One familiar with the value of property is competent to testify on this question.” For the same reasons as set forth in Lamot, we find no error in the admission of Curry’s testimony as to the value of the guns.

Sufficiency of the Evidence to Support Appellant Robert Proctor’s Sentence

The appellant, Robert Proctor, contends that the evidence was insufficient to support his sentence in that no evidence was adduced as to the value of goods taken with respect to him. As previously indicated, Rupert Curry testified for the state regarding his familiarity with the guns in question as to his estimation of their value. During his testimony no objections were offered by either defense counsel until the following transaction occurred:

"Q. Have you ever had occasion to be the recipient of any offers to purchase those guns?

Mr. Hardcastle: Objection.

The Court: Do you have any, Mr. D’Erasmo and Mr. Hardcastle, have any real reservations about the fact that these guns had some value?

Mr. D’Erasmo: Mr. Hardcastle can speak for himself. I have no objection to the officer testifying as to value. Perhaps Mr. Hardcastle would have an objection I should have thought of.

The Court: Do you have an objection?

Mr. Hardcastle: Yes.

The Court: We’ll let him testify as to your defendant, Mr. D’Erasmo, and you disregard it as to the other defendant. Go ahead.”

No further evidence was adduced by the state establishing the value of the stolen guns. Thus, with respect to appellant Robert Proctor, the record contains no evidence as to the value of these items. The issue then becomes whether his conviction of the crime of theft can be sustained despite this void.

The recently consolidated Maryland theft statute under which appellants were charged provides, in part:

"§ 342 Theft
(a) Obtaining or exerting unauthorized control,
— A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and:
(1) Has the purpose of depriving the owner of the property; or ...” Md. Ann. Code, art. 27 § 342 (1957, 1976 Repl. Vol., 1980 Cum. Supp.).

Unlike the previous larceny statutes, see Md. Ann. Code (1957, 1976 Repl. Vol.) art. 27 § 340-343A, the newly enacted § 342 does not include among its elements a showing of value. The issue of value becomes relevant only with respect to the imposition of a penalty, in that, where the stolen items have been shown to have a value in excess of $300 the offense will be deemed a felony and the sentence imposed will be greater as opposed to where the worth is found to be less than $300 and the offense is viewed as a misdemeanor. See, § 342 (f). Thus, it appears that a defendant can be found guilty of theft without any showing of the value of the stolen property. However, where no evidence of the value of the goods has been adduced, the items must be deemed to have a worth less than $300 and as such, the defendant will be sentenced accordingly under the misdemeanor provisions of § 342 (f) (2).

That the legislature intended this result is further evidenced by viewing the new definitional section, § 340, in conjunction with § 342. As part of the definition of the word "value” the legislature has stated:

"(1)(4) When it cannot be determined if the value of the property or service is more or less than $300 ... its value shall be determined to be an amount less than $300.”

It appears that the state has satisfactorily demonstrated all of the elements of the crime of theft with respect to both appellants, but, there is no evidence of the value of the goods stolen with respect to appellant Robert Proctor. Thus, such goods will be deemed to have a value of less than $300. As such, we hold that the trial court erred in imposing the higher penalty upon appellant Robert Proctor. For this reason, we shall vacate the sentence as to this appellant, with instructions to the trial judge to impose a new sentence in accordance with the principles we have enunciated.

Sufficiency of the Evidence to Support Appellant Ronald Proctor’s Sentence

Appellant Ronald Proctor contends that his sentence should be vacated if Robert Proctor’s sentence is vacated on the basis of "fundamental fairness.”

We find no relation between the sentence imposed upon the two appellants other than their involvement in the same offense. So called "fundamental fairness” does not require that a trial judge impose a lighter sentence on one criminal simply because another was able to have his penalty reduced because of a "technicality.”

Judgment as to Ronald Proctor affirmed.

Sentence as to Robert Proctor vacated.

Case remanded for imposition of a proper sentence.

One half of the costs to be paid by Ronald Proctor.

One half of the costs not reallocated pursuant to Maryland Rule 1082 f.

      . The test of whether a witness is an accomplice is whether he could be convicted for the offense charged against the defendant, either as principal or accessory before the fact. Watson v. State, 208 Md. 210, 217, 117 A.2d 549 (1955); Bishop v. State, 39 Md. App. 384, 389-90, 385 A.2d 1206, cert. denied, 283 Md. 729 (1978).

      . Curry estimated the value of the shotgun to be approximately $1200. According to Curry, the total value of the guns was approximately $2500. The basic question is whether the value of the stolen goods exceeded $300. Although Curry’s ability to place a specific value on each of the guns is border line, it is obvious that the value of the guns exceeded $300.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    CHARLES ELLSWORTH CARBAUGH, JR. v. STATE OF MARYLAND
    [No. 39,
    September Term, 1981.]

      Decided October 8, 1981.

    The cause was argued before Thompson, Mason and Wilner, JJ.

      Martha Weisheit, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Lawrence V. Kelly, State’s Attorney for Allegany County, and Michael R. Burkey, Assistant State’s Attorney for Allegany County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Charles Ellsworth Carbaugh, Jr., the appellant, was convicted of driving with a revoked license. He was tried in the Circuit Court for Allegany County, before Judge J. Frederick Sharer, sitting without a jury, despite a prayer for jury trial in the District Court.

The facts can be summarized as follows. Trooper R. J. Sivic of the Maryland State Police testified that at approximately 9:50 a.m. on August 25,1980 he was patrolling the "Martin’s Mountain” area of Route 40 in conjunction with an airborne speed surveillance. Trooper Sivic was alerted to the presence of a silver 1975 Chevrolet heading toward him at a high rate of speed. As the vehicle approached, Sivic signalled for it to pull over. Instead of stopping at the point indicated the vehicle made a quick right hand turn into a private driveway about 40-50 feet from the officer. Sivic testified that by the time he reached the automobile all 5 persons had exited from the right side. He then approached the appellant, Carbaugh, whom he believed to be the driver of the vehicle and requested that he display his license. Carbaugh responded that he was not the driver. After all the other passengers maintained that another of the group, Michael Yonkers, had been driving, Sivic decided that he had been mistaken and issued a traffic citation to Yonkers. The evidence indicates that Yonkers paid the fine exacted by the ticket at a later date.

Trooper Lester V. Lewis, also participating that day in the speed surveillance procedures, observed Sivic’s actions while he, Lewis was ticketing another motorist. As Sivic finished writing the citation for Yonkers, Trooper Lewis approached him and stated that he had ticketed the wrong person because appellant had been driving the car. Over his emphatic protestations, appellant was subsequently cited for speeding and driving with a revoked license.

The appellant contends that his prosecution was collaterally estopped because Yonkers settled the issue as to who was the driver of the car by paying the fine mandated by the speeding citation. Under Md. Rule 736 the issue will be treated as waived.

Md. Rule 736 requires that certain motions or objections be made within specified time limits in order to avoid the forfeiture of the right to raise these motions. The Rule provides in part:

"Rule 736. Motions Before Trial.
a. Mandatory Motions.
A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
1. A defect in the institution of the prosecution;
* * *
b. Time for Filing Mandatory Motions.
A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.”

This Court has commented in general terms on the importance as well as the propriety of this Rule. See, Kohr v. State, 40 Md. App. 92, 96-98, 388 A.2d 1242, cert. denied, 283 Md. 735 (1978):

"The Maryland Constitution, Article IV, Section 18A, vests in the Court of Appeals the power to promulgate rules of practice and procedure in the administration of the appellate courts and the other courts of the state and these rules 'shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.’ ... The rules, when adopted within their authorized scope, are legislative in nature....
It is clear that the Court of Appeals in adopting new Rule 736 decided, as a matter of judicial policy and administration, to make the Maryland rule parallel to Rule 12 of the Federal Rules of Criminal Procedure.... The defendant is still afforded an opportunity to litigate the issue and the requirements of Rule 736 do not amount to an unconstitutional burden on the accused.” (footnote omitted).

An attack on the institution of a suit based on double jeopardy grounds was among those preliminary motions contemplated by Rule 736 a 1. This is evidenced by the Committee note to this Rule which states:

"Subsections a 1 and a 2 include, but are not limited to allegations of improper selection and organization of the grand jury, disqualification of an individual grand juror, unauthorized presence of persons in the grand jury room, former jeopardy, former conviction, acquittal, statute of limitations, immunity and the failure of the charging document to state an offense, (emphasis added).

See also, Pulley v. State, 43 Md. App. 89, 403 A.2d 1272 (1979) , aff'd on other grounds, 287 Md. 406, 412 A.2d 1244 (1980) and Murray v. State, 27 Md. App. 404, 409, 340 A.2d 402 (1975). In Pulley we said:

"In the case now before us, we are not dealing with the merits of double jeopardy at all. We are dealing with procedural forfeiture, pure and simple. The failure to make this mandatory motion within the prescribed time limits, absent good cause to forgive the dereliction, bars the claim where the claim arguably is pregnant with constitutional merit just as surely as where the claim is utterly bereft of merit. To rule otherwise would strip Rule 736 of its intended salutary effect.” 43 Md. App. at 97.

The Court of Appeals subsequently held that, under the particular facts of Pulley, Rule 736 could not be applied to the defendant because that case was tried before the Rule became effective. See, Pulley v. State, 287 Md. 406, 412 A.2d 1244 (1980), .however, our discussion with respect to the purpose and application of Rule 736 was not questioned.

The appellant alleges that in view of Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), double jeopardy is a jurisdictional defect and as such remains reviewable on appeal despite the absence of a former adjudication of this issue.

In Menna, the defendant was indicted for his refusal to testify before a grand jury after having been granted immunity. He was adjudicated in contempt of court and was -sentenced to a 30 day term in jail which was served. Subsequently the petitioner was indicted for his refusal to answer questions before the same grand jury in connection with the same investigation, the only difference being a separate sitting of the grand jury. The defendant asserted that the indictment should be dismissed under the double jeopardy clause of the Fifth Amendment to the United States Constitution. The request was denied and the defendant subsequently pleaded guilty. He thereupon appealed to the New York Court of Appeals which affirmed his conviction, declining to address the double jeopardy claim on its merits. The New York court held that the defendant had waived his double jeopardy claim with his counseled plea of guilty. On petition for certiorari, the United States Supreme Court reversed, holding that the defendant’s plea of guilty did not result in a waiver of his right to claim that the indictment was in violation of his right against double jeopardy.

Revealing the limited nature of its holding, the Supreme Court noted:

"We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” 96 S.Ct. at 242 n.2.

This statement clearly indicates that Menna did not hold double jeopardy was a jurisdictional issue. In contrast, the case appears to reveal the limited circumstance under which a double jeopardy claim is not waived. Additionally, it is significant that in Menna the claim of double jeopardy had been asserted and denied prior to the rendition of the second guilty plea. As previously indicated, in the present case the claim of double jeopardy was not raised at any point at the trial below.

Inasmuch as double jeopardy is not a jurisdictional issue, it falls within the confines of Md. Rule 736. Thus, the failure to meet the time specifications of that rule will be deemed a waiver. Also, the question was not presented in any manner to the trial judge and therefore is not before us under Md. Rule 1085.

Judgment affirmed.

Appellant to pay the costs.

      . Although the precise question before us is "collateral estoppel” rather than "double jeopardy,” the principles involved in both are more or less the same. See, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).


author: Per Curiam.

text:
    REGINALD SAVAGE v. DIRECTOR, PATUXENT INSTITUTION
    [No. 149,
    September Term, 1967.]

      Decided August 14, 1968.

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

On 30 November 1962 the applicant was convicted of seven offenses of burglary and sentenced to one year in the Maryland House of Correction on each, the sentences to run consecutively. On the same date he was ordered to be taken to Patuxent Institution for examination and evaluation. On 29 May 1964 he was determined to be a defective delinquent and committed to Patuxent Institution. On 31 May 1967 in the Criminal Court of Baltimore, he was again determined to be a defective delinquent. He seeks leave to appeal from that redetermination.

The applicant’s three allegations go to the weight and sufficiency of the evidence on which he was redetermined to be a defective delinquent.

We do not have a transcript of the proceedings of the hearing but the record contains a report of examination made by a psychiatrist at the applicant’s request. It includes the following statement of the examining psychiatrist:

“* * * I believe that he has shown definite improvement but I do not feel that this improvement is sufficient at this time to materially change his status. I hope that he can be reexamined in about a year or so because I feel that he needs further treatment in a structural environment. I hope that he can be given more privileges and perhaps be advanced to the 4th level and given a chance under much less restricted security during this time.”

The Court of Appeals said in Simmons v. Director, 227 Md. 661, 664:

“It is claimed that admission of the testimony of the psychiatrists and other physicians who examined the applicant was a violation of the patient-physician privilege. The statute provides that the reports of the examining physicians, including that of the independent psychiatrist, when one is requested ‘shall be submitted in writing addressed to the court.’ Code (1961 Cum. Supp.), Art. 31B, § 7(a) and (b). The purpose of the examinations is to aid the court or jury to determine the status of the person involved, and it is obvious that the patient-physician relationship does not exist and that the results of such examinations are admissible.”

And it was said in Sas v. State, 334 F. 2d 506 (4th Cir. 1964) at 511, citing Simmons:

“The psychiatrist of the criminal’s own choice, which must be furnished him by the State upon request, is not in the position of a medical expert in an adversary proceeding. He is considered to be ‘independent’. He is required to submit a written report of his examination and findings to the court for consideration by the trier of fact. The defendant has no control over the admission of the report of this independent psychiatrist and the physician-patient relationship does not apply.”

The report here constituted legally sufficient evidence to support the determination that the applicant was a defective delinquent. Thus the finding of the hearing judge was not clearly erroneous. In a non-jury case if the finding is not clearly erroneous, questions as to the weight of the evidence are not available on application for leave to appeal. Mumford v. Director, 243 Md. 723, 724.

Application denied.


text:
    JOHN HENRY COUSER v. STATE OF MARYLAND
    [No. 320,
    September Term, 1967.]

      Decided August 15, 1968.

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

      Russell J. White for appellant.

      Henry J. Prankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

John Henry Couser, the appellant, was convicted under two separate robbery indictments involving one incident and was sentenced to a term of ten years in each case to run consecutively. The trial was conducted in the Criminal Court of Baltimore without a jury.

Couser alleges reversible error in that his testimony concerning the unfairness of the lineup was stricken from the record. Since we agree with this contention it will be unnecessary to give a statement of the facts.

At the trial the appellant testified that the only identification of him at the lineup (held May 3, 1967) was by a police officer who knew him and not by the victims of the robbery, and that further he overheard another police officer encouraging the witnesses to make false identification. On motion by the State’s Attorney that this testimony was “full of hearsay”, the trial judge granted a motion to strike the testimony from the record. Merely because words are spoken out of court does not necessarily make them inadmissible. The Court of Appeals and this Court have both held that before lineup testimony can be admitted over objection it must be shown that the lineup was fairly conducted, see Rath v. State, 3 Md. App. 721, 240 A. 2d 777, Reeves v. State, 3 Md. App. 195, 238 A. 2d 307 and the cases cited therein. This means that the fairness of the lineup wras an issue in this case and what was said at the time was therefore not inadmissible testimony. See Nixon v. State, 2 Md. App. 611, 236 A. 2d 304, 4 Wigmore, Evidence § 1766 (3d ed. 1940). It is, of course, an important factor in determining whether or not a lineup was fairly conducted for the trier of fact to know what, if any, conversation then transpired.

We have repeatedly held that there is no obligation on the trial judge to believe the testimony of the accused, Adams v. State, 4 Md. App. 135, 241 A. 2d 591, Gunther v. State, 4 Md. App. 181, 241 A. 2d 907, Eley v. State, 4 Md. App. 230, 242 A. 2d 175 but this does not mean that the trial judge is at liberty to strike it from the evidence.

Judgments reversed and cases remanded for new trial.

      . United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 requiring the presence of counsel at lineups apply only to lineups conducted subsequent to June 12, 1967, Stovall v. Denno, 388 U. S. 293, 87. S. Ct. 1967, 18 E. Ed. 2d 1199. Those cases, do, however, make it clear that the fairness of lineup identifications is a constitutional question.

      . Professor Wigmore’s theory is that it is not hearsay at all, but other writers hold that it is a res gestae exception to the hearsay rule. 4 Wigmore. Evidence § 1767 (3d ed. 1940).


author: Morton, J.,

text:
    WILLIAM BARNETTE AND WILLIAM CRAWFORD v. STATE OF MARYLAND
    [No. 370,
    September Term, 1967.]

      Decided August 15, 1968.

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

      De Haven L. Smith for appellants.

      Bernard L. Silbert,. Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney for Baltimore City, and Howard L. Cardin, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

William Barnette and William Crawford, the appellants, appeal from convictions for storehouse breaking and being rogues and vagabonds in a trial in the Criminal Court of Baltimore, Judge Thomas J. Kenney presiding without a jury. Each appellant was sentenced to a term of eighteen months under the major charge and to a term of six months, concurrent, on the minor charge. The sole question presented on appeal is the sufficiency of the evidence to support the convictions.

There was evidence from which the trial judge could have found that at 1:20 A. M. on July 19, 1967, William Barnette was found standing at the corner of Forrest and Monument Streets with his hand on his left side and blood dripping from his hand. He was located approximately 60 feet from a broken window in the warehouse owned by Merchants Terminal Corporation located at Forrest and Monument Streets. Crawford was found coming from the broken window. When he observed a police officer approaching he went back into the building but immediately turned around and came out of the hole in the window. Both police officers observed blood stains around the window and near a desk which was “three-quarters of the room away” from the broken window. Crawford was uninjured. The manager of the warehouse testified that the building was closed and the window intact at the time of closing on July 18th. The office contained movable equipment valued at five to six hundred dollars, and the warehouse contained millions of pounds of frozen food valued in millions of dollars. There was ready access to the warehouse from the office. The manager also testified that he found nothing missing either in the office or the warehouse and no stolen merchandise was found on either appellant. The police officers came to the scene in response to a complaint.

Appellants’ argument that the evidence was insufficient to support the conviction is (1) there was no flight; (2) there was no evidence that any merchandise was taken; and (3) that there was no evidence that the premises had been searched or ransacked. We have no problem in holding that the trial judge was not clearly erroneous under Maryland Rule 1086 when he found the appellants guilty of both crimes. In O’Brien v. State, 1 Md. App. 94, 227 A. 2d 362 this Court, citing Ridley v. State, 228 Md. 281, 179 A. 2d 710, held that the mere fact that no goods were taken does not necessarily prove the absence of the intent to steal at the time of the breaking. On the circumstances of the breaking in this case all that is required to show the intent under Md. Code, Article 27, § 32 is that the building contain a valuable inventory. In the present case as in O’Brien, supra, the appellants were apprehended in the act of breaking and it is not surprising that they had not at that time taken any merchandise or ransacked the building. While flight is some indicia of crime, the lack of it does not completely negative the possibility of conviction; otherwise criminals could avoid conviction in many cases simply by not fleeing.

Judgments affirmed.

      . There was no complaint of merger.


author: Anderson, J.,

text:
    CONNIE WILKINS, JR., v. STATE OF MARYLAND
    [No. 114,
    September Term, 1967.]

      Decided August 19, 1968.

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

      Sherman W. West for appellant.

      Alfred J. O’P err all, III, Assistant Attorney General, with whom were Pranas B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Pt'ince George’s County, and Howard S. Chasanow, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, Connie Wilkins, Jr., was convicted in the Circuit Court for Prince George’s County by a jury, Judge Perry G. Bowen presiding, of robbery with a deadly weapon (count one) and assault and battery (count five). Appellant was sentenced to a term of twenty years in the Maryland Penitentiary on each count, sentences to run concurrently. From these convictions, the appellant has appealed.

Appellant raises ten contentions in this appeal:

1. That the lower court lacked jurisdiction over the defendant and that the defendant was denied due process of law by the fact that he never voluntarily placed himself under the jurisdiction of the court and had never been afforded an extradition hearing.

2. That the Circuit Court for Prince George’s County lacked jurisdiction over the defendant and that the defendant was denied due process of law by the fact that he was never arraigned.

3. That the lower court committed reversible error in refusing to provide appellant with a transcript of the argument of counsel.

4. That lower court erred in refusing to provide the appellant with notes made by the trial judge.

5. That the defendant was denied due process of law and his right to a fair and impartial trial by the manner in which the State conducted a lineup in court prior to the trial.

6. That the court committed reversible error and the defendant was denied due process of law, a fair and impartial trial, and his Sixth Amendment right to compulsory process for witnesses by the failure of the trial court to subpoena witnesses for the defense.

7. That the lower court committed reversible error in allowing the State to impeach a defense witness with her past criminal record solicited from that witness while all witnesses were sequestered.

8. That the verdict of the jury was contrary to and against the weight of the evidence in that the defendant was not sufficientfy identified as the perpetrator of this offense.

9. That the verdicts of guilty as to counts one and five of the indictment were invalid since count five merged into count one.

10. That the sentence of twenty years imposed as to count five of the indictment (assault) was excessive and was cruel and unusual punishment.

On March 8, 1966, at approximately 6:20 p.m., Samuel Pellerito, one of the owners, his brother Hugo, a partner, and their manager, Nicholas Mancini, were held up and robbed by three armed gunmen as they prepared to close their place of business known as Sam’s Car Wash. Sam Pellerito, who was checking out the time cards, testified that he saw the three robbers come around the side of the building as his brother and Mancini were at the door. Each carried a gun in one hand and held a handkerchief over his face. He testified that they began pistol-whipping his brother and Mancini, knocking them to the floor, and at gunpoint forced him to open the safe. After the safe was opened, the gunman who had knocked him to the floor reached into the open safe and began scooping out the money. He testified that at this time he was able to get a good look at the robber, who had removed his handkerchief and was only two feet away, identifying him as the appellant. He was also able to identify one of the other robbers, who had temporarily removed his handkerchief. Thirteen hundred dollars was taken from the safe. After cleaning out the safe, the robbers fled. Sam Pellerito was the only victim able to identify any of the gunmen. He testified that the day after the robbery he was shown a group of police photographs and was able to identify the appellant and another of the robbers. He further told the court and jury that immediately prior to trial he had picked out the appellant from a group of about twenty-five people who had been seated in the courtroom with appellant in their midst. In his testimony, Pellerito was positive that this was the man that robbed him.

In addition to Samuel Pellerito, the State produced Nicholas Mancini, the manager of the car wash. Mr. Mancini described the robbery and the beatings inflicted by the robbers, but was not able to identify appellant. The State also produced Thomas E. Howie, Deputy Sheriff for Prince George’s County, and Glenn Moffett, a United States Marshal, who related to the jury the circumstances surrounding the pretrial identification of the appellant by the witness Pellerito.

A motion for a verdict of acquittal was made at the end of the State’s case and denied by the court.

The appellant produced in his behalf his mother, Mary Wilkins, and his girl friend, Barbara Robinson, both of whom testified that he was with them in Washington, D. C. at the time the crime was committed. Appellant also called as witnesses, Jerrold V. Powers, his attorney in a prior case, who testified as to the circumstances surrounding the identification immediately prior to the trial; Samuel Pellerito; Nicholas Mancini; William H. Rutherford; and Louis Blancato. At the close of the whole case, the motion for verdict of acquittal was renewed and denied.

I

Appellant first contends that the lower court lacked jurisdiction to try him because he was not extradited from the District of Columbia Correctional Institute in Lorton, Virginia, to Maryland, in accordance with the Uniform Criminal Extradition Act, Article 41, §§ 16-43, Maryland Code (1957), and that he was thereby denied due process of law.

The appellant, a Federal prisoner serving a 5 to 15 year sentence for a conviction in the United States District Court for the District of Columbia in the D. C. Correctional Institute in Lorton, Virginia, was brought into Maryland for trial under a writ of habeas corpus ad prosequendum. He contends in argument that the mode of bringing him before the Maryland courts was improper and in violation of his rights of due process of law, in that he should have been formally extradited to Maryland in compliance with the Uniform Criminal Extradition Act, Article 41, §§ 16-43, Maryland Code (1957), and that the court lacked jurisdiction to try him.

This contention is devoid of merit. A Federal prisoner, under § 4085 of Title 18, U.S.C.A., may be taken into a State court for trial with the consent of the Attorney General of the United States, and his production is wholly a matter for the Attorney General to determine; Marsino v. Higgins, 10 F. 2d 534, affirmed 270 U. S. 627, and the prisoner may not complain, Chapman v. Scott, 10 F. 2d 156, affirmed 10 F. 2d 690, cert. denied, 270 U. S. 657; Troyan v. United States, 240 F. Supp. 383. Even in the absence of statute, the Attorney General has the authority to transfer a Federal prisoner to a State court for trial as a matter of comity between sovereigns. Ponzi v. Fessenden, 258 U. S. 254, 261, 42 S. Ct. 309, 66 L. Ed. 607; State v. White, 264 P. 647.

Moreover, this Court decided this contention adversely to the appellant in Wilkins v. State, 4 Md. App. 334, 338-39, 242 A. 2d 808.

II

Appellant next contends that Maryland Rule 719 was violated, in that he was not arraigned pursuant to the terms of the rule, and, therefore, this lack of arraignment deprived the Circuit Court for Prince George’s County of jurisdiction to try the case, and that he was thereby deprived of due process of law. He admits that the docket entries reveal that he was served with a copy of the indictment and that an attorney was appointed for him, but avers that he was never formally arraigned, never heard a reading of the indictment, and never entered a formal plea, as required by sections a. and d. of the rule.

We are unable to agree with appellant’s contention that his conviction must be reversed for non-compliance with the rule. Substantial compliance with Rule 719 has been held sufficient. Gouker v. State, 224 hid. 524, 168 A. 2d 521; Ayala v. State, 226 Md. 488, 174 A. 2d 160. In Ayala v. State, supra, at p. 491, the Court said: “WThile Rule 723 c. (now Rule 719 d.) requires that the record shall affirmatively show compliance with the requirement for an arraignment, it has been established that this Court will not resort to fine technicalities and reverse a conviction ‘simply because the record does not show positively that the appellant actually had been formally arraigned or informed of the substance of the charge. Gouker v. State, supra, at p. 527. The authorities are in general agreement that the formalities once observed upon arraignment are no longer required. It is sufficient if it appears that what has been done amounts in substance to an arraignment. 4 Wharton, Criminal Lavs and Procedure, § 1805; 14 Am. Jur., Criminal Law, § 252: 22 C. J. S., Criminal Law, § 411 (1)’.”

The essential inquiry therefore narrows itself down to whether or not there has been substantial compliance with Rule 719 a. The docket entries reveal that the indictment was filed on April 1, 1966. Counsel was assigned to him on November 2, 1966 (at which time he was a Federal prisoner) ; a petition and order for a writ of habeas corpus ad prosequendum was filed November 30, 1966; appellant filed a motion for a continuance on December 1, 1966, which was granted; on January 9, 1967, the bench warrant was returned “cepi”, and a copy of the indictment was given to appellant; a motion for discovery was filed by appellant on February 28, 1967, and trial began on March 9, 1967.

The record shows that appellant took an active role in his defense, both in the selection of the jury and the conduct of the case, and showed complete familiarity with the crime charged. While the record fails to show any formal arraignment or the taking of a plea, the lower court and jury as well as the State and appellant were apparently satisfied that appellant had been arraigned and that the plea was not guilty.

The purpose of an arraignment is to acquaint the accused with the charge, advise him of his right to counsel, see that he is properly represented, and afford him time to plead. The record shows that this was done in the instant case, and that appellant was given every protection afforded him by the rule. We conclude therefore that the record in the case before us shows substantial compliance with Maryland Rule 719.

In addition, we think that the appellant effectively waived the right to demand that the court either formally arraign him or inform him of the substance of the offense with which he was charged when he elected to be tried by a jury, actively engaged in the selection of the jury, and went to trial without so much as suggesting to the court that it had not complied with the rule. Here, it is apparent that the appellant knew the nature of the charge against him and had a full opportunity to defend himself. There was no showing that the appellant was in any way prejudiced by the omission of informing him of the charge, and we hold that appellant waived the privilege of being arraigned. Gouker v. State, supra.

Appellant’s second contention is without merit.

Ill

Appellant contends that the trial court erred in refusing to provide appellant with a transcript of argument of counsel.

The record discloses that at the hearing before the lower court on a remand for further proceedings, appellant was unable to point out to the court what matters in the opening statements or closing arguments he considered significant, and the lower court found that since no objections were made by the appellant during opening statements or closing arguments to anything stated therein by the State or by his own attorney, appellant effectively abandoned his request that the opening statements and closing arguments in this case be transcribed.

On appeal, appellant does not contend that the arguments of counsel were improper or prejudicial to him, but argues that his appellant counsel should have the right to review the entire record in search of possible errors in his conviction.

We find no merit in appellant’s contention. Arguments of counsel do not ordinarily raise questions on appeal and are not normally transcribed. This Court has held that a transcript need not be furnished without a showing of how it could serve a useful purpose. Brown v. State, 1 Md. App. 571, 578, 232 A. 2d 261.

IV

We know of no reason why the trial judge should provide appellant with a copy of the notes made by him during the trial of the case, and such a request was properly denied. Notes made by the trial judge during the course of the trial are his own and form no part of the record and are not available to the appellant.

V

Appellant next complains that he was denied due process of law and his right to a fair and impartial trial by the manner in which the State conducted a lineup in the courtroom prior to trial.

We find no unfairness in the conduct of the lineup which was arranged by the assistant State’s attorney and the attorney for the defendant with the acquiescence of the appellant-defendant and with the consent of the court. Approximately 24 persons, consisting of 17 Negro males, 5 white males and two white females, were seated in the first three rows of the courtroom. Appellant was seated in the second row with his briefcase on his lap. The first witness, Sam Pellerito, when brought into the courtroom, was asked by the State to see if he could pick out the man that robbed him. The trial judge then said: “Mr. Pellerito, we will tell you he is in these three rows of gentlemen here. See if you can pick out which one he is.” Whereupon the witness immediately identified the appellant and pointed him out to the court.

Appellant argues that the trial judge’s instructions to the witness were prejudicial to him, in that the witness then knew the guilty party was in that group. While we do not approve of the court’s statement, on the peculiar facts of this case we do not think it constituted reversible error. We point out that there was nothing of particular note which would distinguish appellant from the others in the large group in which he was seated and appellant’s' counsel stated, at the conclusion of the courtroom lineup, that he was satisfied with it. Moreover, the next witness, Nicholas Mancini, was unable to identify the appellant, although the trial judge repeated his remarks.

His further complaint that his counsel, in a previous case, urged him to keep his briefcase in his lap during identification influenced his identification is without merit. The witness had no knowledge that appellant possessed a briefcase. Also appellant insisted on carrying his briefcase with him, although told by the United States Marshal to leave it behind when he took his seat with the group.

An extrajudicial identification of a defendant is admissible if made under circumstances which would establish its fairness, integrity and reliability, as was the case here. Bean v. State, 234 Md. 432, 199 A. 2d 773; Johnson v. State, 237 Md. 283, 206 A. 2d 138.

VI

Appellant contends that he was denied his Sixth Amendment right to compulsory process for witnesses by the failure of the trial court to subpoena witnesses for the defense.

The trial began at 4:33 p.m. on March 9, 1967. A jury was selected, composed largely of talesmen summoned by the court just prior to trial. After the jury had been sworn, the court declared a short recess. At this point in time, the appellant informed the court that he wished to summons nine witnesses, all of whom were non-residents of Maryland. The witnesses whose names he gave the court were District of Columbia officials and police officers, two District of Columbia lawyers, a bail bondsman, two Federal prisoners, and the Chief of Police for Arlington County, Virginia.

The trial judge questioned appellant closely as to what testimony he expected from these witnesses. The appellant was unable to say what they would testify to other than that John Shorter, a District of Columbia attorney, and Mickey Lewis, a bondsman, would be alibi witnesses to prove he was in their presence at or about the time of the robbery. On being questioned, his attorney advised the court that he had talked with both of these witnesses and from what he learned from each, their testimony would be of no value to appellant in establishing an alibi and for that reason he had made no attempt to summons either of them. Appellant stated that most of the witnesses he wished summoned would prove a conspiracy on the part of District of Columbia officials to get him off the street and have him convicted in Maryland.

The trial judge, after hearing from the appellant and his attorney, concluded that none of the witnesses, if they appeared, could be of any assistance to appellant in his defense. The trial judge therefore treated the request for witnesses as a motion for a continuance and denied the motion. Appellant then filed a formal motion for a continuance and a motion to move the case to the Federal Court, both of which were denied.

In our opinion, the lower court acted properly. It is apparent from the record, that the appellant sought only to delay the proceedings. Although over a four months period appellant had the opportunity to furnish his attorney with the names of any witnesses he washed to be summoned, he never did so. It was only on a visit to the D. C. Penal Institute in Norton, Virginia, by his attorney, a week before trial, that his attorney learned of the names of John Shorter and Mickey Lewis. His attorney immediately contacted these two witnesses and satisfied himself that they would be of no benefit to appellant in establishing an alibi if they testified in his behalf. The granting of a continuance is within the discretion of the lower court. Johnson v. State, supra. We find no merit in appellant’s sixth contention.

VII

Appellant next contends that the conduct of the assistant State’s attorney, in speaking with a defense witness while sequestered and soliciting from her material for impeachment, constituted such improper and reversible action as to demand reversal.

The record discloses that while the witnesses were sequestered in the hall of the courthouse, the assistant State’s Attorney talked with Barbara Robinson, a defense witness, prior to her taking the witness stand. He asked if she had a record, to which she replied that she did. He then asked her “what record?” Counsel for appellant, who was then present, told her not to answer. The assistant State’s attorney already had her record, but wished to confirm it.

The trial judge ruled that there was nothing improper in the assistant State’s attorney talking with the defense witness, while sequestered, to learn if she was the same party who had a record, and he permitted the assistant State’s attorney to question the witness when she took the witness stand as to her criminal record for the purpose of impeachment.

We find nothing improper in what occurred in this instance. The assistant State’s attorney did not coach the witness, but obtained from her information which was easily obtainable from other sources or upon the witness stand. The purpose of sequestration of witnesses is to prevent them from being taught or prompted by each others testimony. Wigmore on Evidence, Vol. 6, § 1838, p. 352; Bulluck v. State, 219 Md. 67, 148 A. 2d 433; State Roads v. Creswell, 235 Md. 220, 201 A. 2d 328.

VIII

Appellant next complains that the verdict of the jury was contrary to and against the weight of the evidence, in that the appellant was not sufficiently identified as the perpetrator of the offense.

In a jury trial, this Court does not inquire into and measure the weight of the evidence, but determines only if there is any relevant evidence to sustain the conviction. Quinn v. State, 1 Md. App. 373, 230 A. 2d 368; Cobb v. State, 2 Md. App. 230, 234 A. 2d 155.

The State produced two witnesses at the trial, one of whom, Sam Pellerito, positively identified the appellant as one of the men who robbed Sam’s Car Wash. The record reveals that the witness had seen the appellant at the car wash on several occasions prior to the robbery. Also, during the robbery, the witness had an excellent opportunity to view the appellant, since appellant had removed the handkerchief from his face when he reached in and robbed the safe. The record further shows that this witness identified appellant from photographs shown him the day after the robbery, had no hesitation in picking him out of the pretrial lineup, and was positive in his testimony in court that the appellant was the man who robbed and assaulted him and cleaned out the safe.

On cross examination, appellant attempted to show that because the witness testified that appellant was clean shaven and, later, said he had a small mustache, he was mistaken in his identification. This was clarified by the witness in his testimony when he reiterated that his face was clean shaven, but he had a mustache. However, this, and other small contradictions in his testimony, would go to the weight of the evidence and were for the jury to decide.

Appellant produced his mother and girl friend as witnesses in his behalf to establish an alibi. These witnesses testified that appellant was with them in Washington, D. C. at the time of the robbery. It is apparent from the verdict that the jury believed the State’s witness and not those of the appellant. The matter of credibility of witnesses is one for the trier of facts to determine. Hutchinson v. State, 1 Md. App. 362, 367, 230 A. 2d 352. Here, we have a positive identification of the appellant made by the victim. A victim’s positive identification alone, if believed, is sufficient to sustain a conviction. Hutchmson v. State, supra; Reed v. State, 1 Md. App. 662, 232 A. 2d 550; Jones v. State, 2 Md. App. 371, 234 A. 2d 614.

We fmd that there was sufficient evidence to submit the case to the jury and appellant’s contention is without merit.

IN

Appellant’s ninth contention is that his conviction under the fifth count of the indictment (assault and battery) merged into his conviction under the first count (robbery with a deadly weapon) since assault is specifically named in count one of the indicl ment as being an element of that offense.

Appellant was convicted of robbery with a deadly weapon and assault and battery. While assault is an essential ingredient of armed robbery, the battery is not. The record discloses that the victim, Sam Pellerito, was knocked to the floor, forced to open the safe at gunpoint, and physically beaten by the appellant. There was therefore no merger of the assault and batteiy conviction into the armed robbery conviction. Cottrell v. State, 1 Md. App. 520, 522, 231 A. 2d 919.

N

Appellant’s final contention is that his twenty year sentence for assault and battery constitutes cruel and unusual punishment and should not stand. We find no merit in this contention. Assault and battery is a common law crime for which no statutory limit governing punishment is prescribed, and the determination of the length of sentence is left to the discretion of the trial court. Sentences for twenty years have been upheld against similar constitutional attack. Roberts v. Warden, 242 Md. 459, 219 A. 2d 254; Adair v. State, 231 Md. 255, 189 A. 2d 618. The record discloses that in addition to being robbed at gunpoint, the victims were severely pistol-whipped and beaten. Moreover, the twenty year sentence for assault and battery is to run concurrently with the twenty year sentence imposed for armed robbery.

Judgments affirmed.

      . Section a. of the rule provides in pertinent part that “[arraignment shall be conducted in open court and shall consist of reading the indictment to the accused or stating to him the substance of the charge and calling on him to plead thereto.” Section d. provides that “[t|he docket entries or transcript shall affirmatively show compliance with this rule.”


text:
    SHAFFER BALDWIN v. STATE OF MARYLAND
    [No. 287,
    September Term, 1967.]

      Decided August 19, 1968.

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

      Edward J. Birrane, Jr., for appellant.

      Edward S. Digges, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney /or Baltimore City, and Michael B. Kaminkow, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On May 19, 1967, the appellant, Shaffer Baldwin, was tried in the Criminal Court of Baltimore by a jury, Judge Albert L. Sklar presiding, upon a five count indictment charging robbery, assault with intent to rob, common law assault, larceny, and receiving stolen goods. The appellant was found guilty of robbery. A Motion for a New Trial was filed on May 24, 1967, and denied after a hearing on June 27, 1967. Appellant was then sentenced to five years imprisonment under the jurisdiction of the Department of Correction, with the court’s recommendation that he be referred to the Patuxent Institution for evaluation as a possible defective delinquent.

Appellant raises four contentions on appeal:

1. That the trial court committed reversible error in refusing appellant’s Motion for a Mistrial when it was discovered that the foreman of the jury had failed to properly answer one of the questions asked him on his voir dire.
2. That the trial court committed reversible error in refusing to grant appellant’s Motion for a Mistrial when the prosecutor cross-examined his own witness without laying a proper foundation therefor, questioned the witness on prior Grand Jury testimony in front of the jury in an attempt to establish surprise, and made reference to the prior Grand Jury testimony by the witness in his closing argument to the jury.
3. That the trial court committed reversible error in refusing to grant the appellant’s Motion for a Mistrial after the prosecutor made prejudicial remarks in front of the jury implying that counsel for the appellant was guilty of suppressing evidence.
4. That the trial court committed reversible error in admitting the photographs of the accused and five others into evidence without laying a proper foundation and in view of testimony that these were the only photographs shown an eyewitness to the crime some three weeks after the crime.

The record below discloses that the jurors were subjected to a voir dire examination, inclusive of the inquiry, . have you or any member of your immediate family ever been the victim of a crime? If so, would you kindly raise your right hand?” There was no response. After the jury was sworn, counsel advised the judge that the jury foreman was at that time a complaining witness in a juvenile court proceeding. Defense counsel, out of the jury’s presence, argued for a mistrial based upon the foreman’s failure to answer to this voir dire. The court was advised by appellant’s counsel that the foreman had evidenced hostility toward the police and the juvenile authorities. After due consideration, the court found no basis for the alleged prejudice and denied the mistrial.

The State first called the victim of the assault and robbery, Henry Tolson, who identified himself as an insurance collection agent, and testified that on July 28, 1966, while making his rounds in the 2500 block of McHenry Street, Baltimore, he was assaulted and robbed by “two or three” persons. After a brief struggle, he passed out and was unable to identify any of his assailants.

The State next called Eric Livingston, an eyewitness to the crime. He testified that he saw the attack, but observed the appellant across the street from the attack, at that time, and that the appellant was not involved therein. To this testimony, the assistant State’s attorney inquired, “Now Eric, do you remember testifying before the Grand Jury?” To which the witness responded, “No, sir.” The appellant’s counsel objected at this point and a bench conference ensued, wherein the assistant State’s attorney claimed surprise. The trial judge accepted the claim and directed that a proper foundation be laid. The assistant State’s attorney then proceeded with the cross examination, to which the appellant’s counsel objected. The trial court sustained the objection, directing the assistant State’s attorney to refrain from “going into detail” in the form of questions propounded. The cross examination continued with the court carefully explaining to the jury that examination of the State’s own witness was allowed in order “to explain to the jury why he was called as a witness in the first place.” The court further informed the jury “[tjhat what is adduced here by means of cross examination is not to be considered as substantive evidence in the case.”

The State's next witness was Mrs. Carrie Ford who testified that she observed the assault and robbery of Mr. Tolson, from the vantage point of her bedroom window. She positively identified the appellant as one of five assailants. On cross examination, the witness was confronted with a photograph of the scene evidencing trees in front of her house. On redirect, the assistant State’s attorney elicited from the witness that while a tree hides the window, wherefrom she observed the incident, that “if you're standing at the window it’s a very clear view, it’s nothing there to keep you from seeing. You can see very well.” Thereupon, the assistant State’s attorney stated that the appellant’s counsel had other photographs, the withholding of which was detrimental to the case. A bench conference was held wherein the appellant’s counsel stated that the other photographs constituted a work product and that the remarks made in front of the jury were highly prejudicial. A mistrial was requested and denied, after which the judge directed the jury to disregard the comment made by the assistant State’s attorney.

The State’s final witness was Officer Joseph Cook of the Baltimore City Police Department, who testified that he had presented Mrs. Ford with six photographs nearly three weeks after the robbery from -which she selected the photographs of the appellant and one David Maith. The photographs were then introduced into evidence over objection. The State did not identify the nature of the photographs, who took them, or where they came from.

A Motion for Judgment of Acquittal was made at the close of the State’s case, which the trial judge denied.

The assistant State’s attorney argued to the jury in his closing argument, that the witness, Eric Livingston, had made statements to the Grand Jury which were contrary to those made on the stand. Appellant’s counsel objected and moved for a mistrial, which was denied by the court.

Appellant’s first, second, and third contentions shall be treated together. The granting of a mistrial is an exercise which rests within the discretion of the trial judge. A mistrial should be granted only where plain and obvious reasons exist, upon the greatest caution and under urgent circumstances. Where, in the exercise of this discretion, the trial court refuses to grant a mistrial, such a decision will not be disturbed on appeal without giving full regard to the fact “that the trial court is in an advantageous position to judge the question of prejudice, and its decision with reference thereto should not be reversed unless it is clear that there was prejudice.” Carroll v. State, 3 Md. App. 50, 53, 237 A. 2d 535, 538 (1968) quoting Cook v. State, 225 Md. 603, 610, 171 A. 2d 460, 463, cert. den. 368 U. S. 970, 82 S. Ct. 445, 7 L. Ed. 2d 398 (1961).

After examining the aforenoted information regarding the foreman, the trial judge found that there was an insufficient showing of prejudice to the appellant in that his counsel argued that the juror “could be prejudiced” only, and that in light of the foreman’s alleged attitude of hostility toward the police, the judge stated that it would be just as likely that the foreman would be inclined to favor the appellant. It is clear that the appellant failed to satisfy his burden of showing that the foreman was not impartial. See Jones v. State, 2 Md. App. 429, 431, 234 A. 2d 900, 901 (1967). Prejudice must be shown as a “demonstrable reality” and not as a “matter of speculation.” Darcy v. Handy, 351 U. S. 454, 462, 76 S. Ct. 965, 100 L. Ed. 2d 1331 (1956).

Only where the prejudice is manifest will the finding of impartiality be set aside by the trial court. Irvin v. Dowd, 366 U. S. 717, 724, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). Here, the allegation of prejudice is so speculative as to leave appellant’s first contention devoid of merit. Moreover, we think the witness answered the voir dire question truthfully, since he was not the victim of a crime but had only initiated a juvenile proceeding against a youth who had called him “weird.”

With respect to the alleged prejudice to the appellant in the trial judge allowing the State to impeach its own witness, it is well to reiterate what the Court of Appeals in Green v. State, 243 Md. 154, 220 A. 2d 544, 546 (1966) stated at page 157:

“Although the general rule is that a party may not impeach his own witness by proof of prior statements which are inconsistent with, or contradictory to, his testimony at the trial, it is well recognized in this State that where a party satisfies the court that he has been taken by surprise, and that the testimony is contrary to what he had a right to expect, it is within the sound discretion of the trial court to determine whether or not proof of prior inconsistent statements should be permitted. Sellman v. State, 232 Md. 344, 348, 192 A. 2d 788 (1963) and authorities therein cited. * * * The purpose of such a showing, if a proper foundation has been laid, is to protect the party who put him on the stand. Smith v. Briscoe, 65 Md. 561, 569-70, 5 Atl. 334 (1886). Recourse to the right is confined to cases where the party calling the witness has been misled and surprised, or entrapped to his prejudice. Bruce v. State, 218 Md. 87, 94-95, 145 A. 2d 428 (1958).”

Once a foundation of surprise is laid to the court’s satisfaction, the impeachment process is justified and prior inconsistencies may be proven. See Green v. State, supra.

fn the instant case, the trial judge carefully examined the State’s claim of surprise and upon being satisfied as to its veracity, allowed the laying of the foundation for the impeachment process. This impeachment process by cross examination was directed toward prior inconsistent statements, the proof of which was properly admitted by the trial judge. Here, the trial judge cautioned the jury that whatever would be brought out in the course of the cross examination was to be considered for “one limited purpose, not as the purpose of substantive evidence, which is evidence on which you base a finding of fact. The only purpose of this is to permit the State to inform the court and you as the jury the reason why he, this witness, was called to the stand in the first place. But for no other reason is this cross examination allowed.” Based upon these considerations, we find the trial judge properly exercised his discretion by denying the motion for a mistrial.

Appellant further contends that the State’s improper argument to the jury wherein mention was made that the witness Livingston “had made a prior statement to the Grand Jury different,” was sufficiently prejudicial to warrant a mistrial and that the trial court’s refusal to so rule constitutes reversible error.

The record reflects that the trial judge immediately interrupted the State and instructed the jury that the only evidence of prior inconsistent statements arose on cross examination and that the State’s proffer did not constitute evidence; and that furthermore, nothing brought out on cross examination was to be considered as substantive evidence. It is clear that the trial judge from his vantage point of having the opportunity to hear the attorney as well as to appraise the effect of his words on the jurors before him, is “of necessity empowered with wide discretion in deciding whether the prejudicial effect of counsel’s remarks can be erased by corrective instructions or if a mistrial is required.” Leach v. Metzger, 241 Md. 533, 537, 217 A. 2d 302, 304 (1966). We find that the trial judge property exercised the discretion vested in him and effectively cured the potential prejudice of the improper argument by his admonition to the jury.

Appellant’s final contention is devoid of merit. The State’s witness, Mrs. Carrie Ford, testified that she had identified from six photographs presented to her by the police, the appellant and another as assailants of the victim, Henry Tolson. Officer Cook testified to having presented a group of six photographs to Mrs. Ford and that she identified the appellant and one David Maith, as the assailants. These photographs were admitted into evidence over the objection of the appellant.

The thrust of the appellant’s final contention is that these photographs used in the extrajudicial identification were inadmissible absent a proper foundation and principally, that the showing of the photographs to Mrs. Ford by Officer Cook is analogous to a lineup and therefore subject to the strictures enunciated in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), construing such to be a critical stage affording the right to representation by counsel. However, it is clear that even if there was merit to this analogy, IVade would be inapplicable as the instant identification occurred nearly three weeks after the occasion of the crime on July 28, 1966, and as was stated in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), Wade applies only to those lineups occurring after the date of its decision, June 12, 1967. Furthermore, we hold that the Wade strictures are inapplicable to photographic identifications.

The question of the practice of extrajudicial photographic identifications was answered in Simmons v. United States, 390 U. S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968), wherein Mr. Justice Harlan stated:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. '.Phis standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U. S. 293, 301-302, 87 S. Ct. 1967, 1972-1973, and with decisions of other courts on the question of identification by photograph.”

It is clear that where a witness has previously identified a photograph of the defendant, such testimony is admissible. See Judy v. State, 218 Md. 168, 172-176, 146 A. 2d 29, 31 (1958) ; Austin v. State, 3 Md. App. 231, 236, 238 A. 2d 569, 573 (1968). Furthermore, an extrajudicial identification is admissible where the circumstances surrounding same are conducive to fairness, integrity and reliability. Bean v. State, 234 Md. 432, 444, 199 A. 2d 773, 779 (1964) ; Proctor v. State, 223 Md. 394, 400, 164 A. 2d 708, 712 (1960).

In the instant case, we find that the extrajudicial identification, testimony relevant thereto, and the admission of the challenged photographs were not prejudicially inspired, as the witness Ford had ample opportunity to become fully familiarized with the features of the assailants during her observation of the robbery. See McRae v. State, 3 Md. App. 388, 392, 239 A. 2d 607, 609 (1968). Furthermore, we find nothing in the composition nor presentment of the instant photographs to reflect unfavorably upon their fairness, integrity or reliability in rendering an objective non-suggestive identification.

Judgment affirmed.


text:
    CHARLES TUCKER v. STATE OF MARYLAND
    [No. 313,
    September Term, 1967.]

      Decided August 19, 1968.

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

      Stanley S. Cohen, with whom was Andrew J. Burns on the brief, for appellant.

      Edward E. Borgerding, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, William E. Braman, Assistant Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

On September 25, 1967, the appellant, Charles Tucker, was tried by a jury in the Criminal Court of Baltimore, Judge Edwin J. Wolf presiding, and convicted of the crimes of robbery with a dangerous and deadly weapon and assault and battery. Appellant was sentenced to ten years imprisonment on each conviction, to run concurrently.

The appellant raises two contentions on appeal:

1. That the trial court erred in permitting the State to amend Indictments Nos. 3737 and 3738.
2. That the trial court erred in its rulings during the cross-examination of the prosecuting witness.

The evidence adduced at the trial revealed that on the evening of July 22, 1966 the prosecuting witness, Thelma Tynes, reported to work at Booz’s Tavern, 2259 Reisterstown Road, Baltimore, Maryland. When she arrived, the cash register contained $100.00. Her testimony established that the appellant arrived at approximately 5 :30 p.m. and stated, “This is a holdup”, and subsequent thereto struck a customer, Virgil Wright, on his head with a gun. She further testified that the appellant ordered her to put the cash register money into a bag, which she did. Mrs. Tynes gave the police a description of the appellant and identified him as Charles Tucker.

The cross-examination revealed that Mrs. Tynes never viewed a lineup; however, she recognized the appellant at the preliminary hearing, but failed to say anything as she didn’t want to be involved in the case.

The State’s witness, Virgil Wright, testified that he was in the tavern when the hold-up man drew his weapon, struck him on the head, and instructed him to shut up.

The thrust of the appellant’s first contention is that the trial court, by permitting the State to amend the time element in the two instant indictments, changing an alleged “typographical error” from July 22, 1967 to read July 22, 1966, denied the appellant both the opportunity to defend and notice of what he was called upon to defend.

Maryland Rule 714 states:

“The court may permit an indictment or information to be amended at any time before verdict as to matter of form, but not as to matter of substance.”

Therefore, we are confronted with reaching the determination as to whether the instant amendment constitutes a change of form or substance.

In Corbin v. State, 237 Md. 486, 206 A. 2d 809, 811 (1967), the Court of Appeals directed its attention to the distinction between form and substance, stating at page 489 :

“As to what constitutes substance and what is merely formal in an indictment, it may he said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else — including the order of arrangement and precise words, unless they alone will convey the proper meaning — is formal.”

We find that the change of date in the instant case constitutes a matter of form and not substance. The indictment was filed on August 2, 1967, and it is obvious that the date of the offense as set forth in the indictment was a typographical error. Trial counsel moved for a dismissal and, upon its denial, apparently regarded the matter as sufficiently non-prejudicial as not to move for a continuance. It is well established that the State is not confined in its proof to the date alleged in the indictment. West v. State, 3 Md. App. 123, 127, 238 A. 2d 292, 294 (1968).

The appellant’s second contention is devoid of merit. The appellant urges that the prosecuting witness, Thelma Tynes, should have been permitted to explain why she had failed to identify the appellant at the preliminary hearing, and that the court’s refusal to allow such explanation was prejudicial to the appellant.

The record discloses that the witness made a positive in court identification of the appellant as the perpetrator of the crime charged. Mrs. Tynes’ testimony set forth that she had known the appellant for years and did not want to be involved in the matter. Apparently she did recognize the appellant at the preliminary hearing, but her reluctance to become involved motivated her silence. The initial failure to render an identification out of court goes to the weight of the evidence and not to its admissibility and remains a matter for the determination of the trial court. See Carroll v. State, 3 Md. App. 50, 53, 237 A. 2d 535, 537 (1968). Furthermore, the scope of the cross-examination is a matter within the sound discretion of the trial judge. See Davis and Peterson v. State, 1 Md. App. 581, 585, 232 A. 2d 535, 537 (1967). Here, the record revealed the witness was reluctant to become involved and thus supplied a feasible rationale for her silence at the preliminary hearing. We find no abuse of discretion.

Judgments affirmed.


text:
    PATRICK MICHAEL PROPST, OLLIE MAY, JR., AND RUTH VIRGINIA MAY v. STATE OF MARYLAND
    [No. 369,
    September Term, 1967.]

      Decided August 19, 1968.

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

      Harold Buchman for appellants.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan,

      Jr., State’s Attorney for Baltimore City, and Frank A. De Costa, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Patrick Michael Propst, Ollie May, Jr. and Ruth Virginia May, his wife, were tried without a jury in the Criminal Court of Baltimore. Propst was convicted on several counts of conducting a bookmaking operation on nine separate days and of conducting a lottery for one day. The Mays were both convicted on several counts of maintaining an apartment for gambling purposes. No complaint has been made as to merger or duplicity of the various counts. Propst was sentenced to consecutive terms totaling five years and fined a total of $10,000. and costs. The Mays were each sentenced to three years and each fined $10,000. and costs. The contentions of the appellants will be set out hereinafter.

On May 4, 1966, police officers acting under the authority of a search warrant went to the premises at 2100 E. Fairmount Avenue in Baltimore and executed the warrant. Propst was found seated at a table; and in front of him were lottery and horse race bets slips. Ruth Virginia May was seated in the kitchen which was a small room adjacent to the one in which Propst was seated. At the time of the raid, Propst had a telephone receiver in his hand. The bookmaking slips showed play from April 25th through May 4th inclusive of between $2,000. and $3,000. per day. In addition the lottery slips for May 4th showed a total play of approximately $800.

I The Search Warrant

All appellants contend that the search warrant was invalid because there was no probable cause to believe that gambling operations were being conducted at the premises for which it was issued, the second floor front apartment of 2100 E. Fair-mount Avenue, Baltimore. The factual allegations in the affidavit supporting the warrant and in the search warrant itself may be summarized as follows: On April 30, 1966, the patrolmen who sought the warrant, acting on information that bookmaking operations were being conducted at the New York Grill Restaurant went to that restaurant. They seated themselves behind Propst who was carrying an Armstrong Daily News Review. They overheard Propst say to another man “I guess you want your money lucky” whereupon Propst gave the man some U. S. currency. The policeman further overheard the unidentified man ask Propst “let me see your scratch sheet.” Propst complied to the request and after consulting it the second man said to Propst “you might as well take this double while you are here” whereupon he returned to Propst the “scratch sheet” with some U. S. currency saying “give me a $5.00 double at Garden State on ‘Double Oats’ and ‘Red Black’.” Propst then marked his “scratch sheet” saying “O.K. call me later.” The policemen then observed Propst leave the restaurant and enter the second floor front of 2100 E. Fairmount Avenue. Moments later the partolmen saw Propst appear at the second floor front window and pull down the blinds.

On May 2, 1966, the police officers observed a meeting between Propst and an unidentified man near the New York Grill Restaurant. Soon after the two men met, Propst took a slip of white paper from his shirt pocket, studied it, and returned it to his pocket. Thereupon, Propst gave the man some U. S. currency. Then Propst took an Armstrong Scratch Sheet from his trousers’ pocket and handed it to the unidentified man who consulted it. At this point, the two men were approached by a third man to whom Propst gave some U. S. currency after consulting the slip of paper in his shirt pocket. The third man then departed. The second man, to whom Propst had originally been talking, returned the paper with some U. S. currency to Propst who then marked his scratch sheet. The patrolmen then watched Propst walk to 2100 E. Fairmount Avenue and enter the building. Soon, he appeared at the second floor front window and pulled down the window shade.

The next day, the patrolmen observed Propst leave the restaurant with another man. After a brief conversation they parted and Propst entered 2100 E. Fairmount Avenue. A few minutes later he again appeared at the second floor front window and pulled down the shade. Propst went to the premises each day at approximately 11:30 A.M.

There was no indication as to the experience of the officers who made the observations.

To support their argument the appellants rely principally upon Wood v. State, 185 Md. 280, 44 A. 2d 859 and Frantom v. State, 195 Md. 163, 72 A. 2d 744. In Wood the officer observed a lunchroom on four consecutive days. ,He saw at least 50 people enter the lunchroom on those four. days and stay only two or three minutes. On two days a man wearing a white apron came to the door, looked up and down the streets several times and went back to the lunchroom. The court held that the affidavit did not show probable cause because it was entirely possible that the people could have made, trivial purchases to account for the short time they spent on the premises. In Frantom v. State, supra, a police officer saw several known gamblers enter a poolroom and several other men enter the establishment, and the same observations were made on the succeeding three days. The Court held that those facts did not constitute probable cause to believe the gambling was being committed stating that a man of prudence and caution might well believe that the entry of the gamblers was to play pool or to loaf.

We think, however, the present case is more like,Henderson v. State, 243 Md. 342, 221 A. 2d 76 where the Court sustained the warrant after two experienced police officers, upon receiving complaints as to a private premises saw the accused leave the premises and walk to a restaurant in the next block; a few minutes later he went to a nearby bakery where he remained a very short time; he next walked to the drugstore for a short visit, and then walked to a gasoline station on the corner. At the gasoline station, it was observed that an apparent employee of the station gave U. S. currency to the accused who took from his jacket a white pad. and pencil and made a notation thereon. The accused returned to the original premises, and within minutes a described female rang the doorbell; the man opened the door and after a brief' conversation the woman gave and the man accepted some U.'S'.' currency. Two days later the officers observed the same woman enter the dwelling and a few minutes later leave. Within ten minutes two men separately entered the dwelling and left very soon after entering. While it is true that in the present case betting was not actually shown to have taken place on the searched premises, we think the observations over a period of three days warranted a cautions and prudent judicial officer in finding there was probable cause to believe that the laws against bookmaking were being violated at 2100 E. Fairmount Avenue.

We regard the present case as an application of the rule laid down by the Supreme Court of the United States in United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 in the following language:

“Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U. S. [257], at 270, 80 S. Ct. [725], at 735 [4 L. Ed. 2d 697].”

While we agree that the present case is marginal, we think that the pattern of daily action, particularly including the regularly lowering of the window shade as Propst returned to the apartment at 11 :30 A.M. each day, supports the holding. It should be noted that evidence sufficient for conviction is not required for the issuance of a search warrant, Frantom v. State, supra.

Appellants next contend the search warrant was improper because the affidavit was made before a judge of the Supreme Bench of Baltimore City, and that although a judge of a court of record has authority to take acknowledgments tinder Section of 2 Article 18 of the Md. Code, there is no statute specifically authorizing a judge to administer an oath. This precise argument seems not to have been presented to a Maryland appellate court heretofore, however, in the few cases in which such an argument has been made it has been universally held that the court has inherent authority to administer an oath.

In Scott v. State, 1 Md. App. 481, 231 A. 2d 728 it was contended that the search warrant was “deficient because affiant was not sworn before the notary.” This Court at 1 Md. App. 485 answered that contention by stating that:

“The record affirmatively shows that in both instances the applicant was sworn by the judge who issued the warrant. This is sufficient, whatever the notary may have done. Tucker v. State, 244 Md. 488, 497, 224 A. 2d 111.

In State v. Townley, 67 Ohio St. 21, 65 N. E. 149, 93 Am. St. Rep. 636 (1902), the Supreme Court of Ohio stated that:

“It is fundamental that every court has inherent power to do all things which are reasonably necessary for the administration of justice within the scope of its jurisdiction. State v. Caywood, 96 Iowa 367, 65 N. W. 385. Therefore it is not necessary that there should be a statute empowering the courts to administer oaths in the trial of cases. The power is implied in the jurisdiction to try cases, and to receive the testimony of witnesses under oath. It ivas under this principle, apparently, that the Supreme Court of Tennessee held that ‘the judge himself may administer the oath, or he may direct anyone in his presence, in open court, to administer it, and the oath will be valid’. Stephens v. State, 1 Swan, 157.”

Other cases following this principle are: Thomas v. Boise City, 25 Ida. 522, 537, 138 P. 1110, Ferguson v. Smith, 10 Kan. 396, Milton v. State, 7 Okla. Cr. 407, 124 P. 81, Guernsey v. Tuthill, 12 S. D. 584, 82 N. W. 190, and Keator v. People, 32 Mich. 484.

We hold that the search warrant was valid.

II Authentication of Seized Document

When the warrant was served the officers seized, in addition to the lottery slips heretofore mentioned, a rent receipt issued by the landlord to the appellant, Ollie May, Jr. At the trial the receipt was entered into evidence without other authentication. On appeal appellants May allege that it was improperly admitted and its admission is reversible error. Since we wall decide that there is an insufficiency of evidence to support the conviction of Ollie May, Jr. it is unnecessary for us to consider this objection with reference to him. We hold, however, that the evidence was admissible as to Ruth Virginia May under the principle that writings taken from an accused pursuant to a lawful search are admissible without further proof of the genuineness. See 2 Wharton, Criminal Evidence §§ 575, 585 (12th Ed.). Although the principle was not discussed it seems inherent in the holding of the Court of Appeals of Maryland in Lauder v. State, 233 Md. 142, 195 A. 2d 610 and more particularly in Camphor v. State, 233 Md. 203, 196 A. 2d 75. See also Morrow v. State, 190 Md. 559, 59 A. 2d 325 and 7 Wig-more, Evidence § 2160 at 632 (3rd Ed.).

Ill Incriminating Admissions

Appellants May next contend that the fact that they gave the address of 2100 E- Fairmount Avenue, second floor, as their address when they were booked at the police station was inadmissible under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 because there was no proof that the warnings required by that case were given.

In Clarke v. State, 3 Md. App. 447, 240 A. 2d 291, this Court considered a similar contention where the place of employment was given in a routine booking procedure and the police used the information to recover the stolen merchandise involved in those proceedings. We held that although the appellant was in police custody, the “interrogation” under the circumstances there involved was not the type proscribed by Miranda. Although proof of the control of the premises at 2100 E. Fairmount Avenue, second floor front was one of the facts that the state wras required to prove in order to convict the Mays, we do not think that routine booking procedures are the kind of interrogation covered by Miranda in the absence of unusual circranstances which are not here present.

IV Sufficiency of the Evidence

The appellants May contend finally the evidence was insufficient to convict them for knowingly permitting their apartment to be used for gambling purposes. This contention causes us no problem as to Ruth Virginia May. The property searched was her residence. She was actually present in an adjoining room at the time of the raids which disclosed that a large gambling operation was being conducted there daily. She can not be heard to say that she did not know that the operation was being conducted. She relies on Yanch v. State, 201 Md. 296, 93 A. 2d 749 wherein a conviction of a wife was reversed where lottery paraphernalia was found in a tavern operated by her husband and the wife was merely present. We do not think that case applies to the present situation where the apartment was shown to be the residence of the wife, as well as the husband, and the husband was not shown to have been present at any time when gambling operations were being conducted but that the wife was present.

The sufficiency of the evidence to convict Ollie May, Jr., however, presents a more difficult problem. The statutes pertaining to ownership or control of places where gambling is being conducted are set out in Md. Code Art. 27, §§ 240, 361, 362. On their face these statutes require that to be guilty a person must know that his premises are being used for the illegal purposes and they have been so construed by the Court of Appeals of Maryland, Rowan v. State, 175 Md. 547, 3 A. 2d 753. The sole evidence to convict Ollie May, Jr. was the fact that he resided at the raided premises. There was no evidence whatsoever that he was ever at the premises when illegal activities were being conducted or that he had scienter in any other manner. Compare Moore v. State, 199 Md. 676, 87 A. 2d 577.

Judgments affirmed as to Patrick Michael Propst and Ruth Virginia May. Judgments reversed as to Ollie May, Jr. and remanded for a new trial. Patrick Michael Propst and Ruth Virginia May and the City of Baltimore to each pay one-third of the costs.

      . The patrolmen noted that “Double Oats” was the name of a race horse entered to race on April 30, 1966 in the first race at Garden State Race Track while “Red and Black” was a name of a race horse entered the same day in the second race.

      . The Supreme Court in United States v. Bailey, 9 Pet. (U. S.) 238, 9 L,. Ed. 113 (1835) touched on this principle in dicta.