author: Thompson, J.,

text:
    CHARLES C. NORFOLK, JR. v. STATE OF MARYLAND
    [No. 199,
    September Term, 1967.]

      Decided April 26, 1968.

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

      Jack B. Richards for appellant.

      Henry J. Brankel, 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.
   Thompson, J.,

delivered the opinion of the Court.

Charles Norfolk, Jr., the appellant, complains of a conviction by a jury in the Criminal Court of Baltimore for the offense of being a rogue and vagabond (“unlawfully was a rogue and vagabond in violation of Article 27, § 490 of the Annotated Code of Md. to wit: having burglary tools in his possession at Light and Flamburg Streets”), on the basis that illegally seized evidence was introduced at his trial. There were several other complaints but we need consider only this one.

Norfolk’s arrest was described by two of the three police officers involved in the following language: Officer Richard Henry testified as follows:

“A Well, I was standing on the corner of Williams and Hamburg Street. I was looking west on Hamburg Street and I observed what I took to be men standing alongside of the bar on the south side of Hamburg Street by a window, about twenty-five or thirty feet east of Light Street.
“Q What, if anything, were they doing at that time?
“A I couldn’t see. I wasn’t close enough to see what they were doing. And this building is the offices of Attorney at Law, Harry I. Kaplan, 1001 Light Street.
“Q That is the address at wdiich you saw them ?
“A Yes, sir, alongside of Hamburg Street.
“Q What did you do ?
“A I started along Light Street to investigate what they were doing alongside the window there. As I was going west on Hamburg Street, I don’t know if they seen me or what it was, but they took off at a fast pace walking.
“Q What do you mean by a ‘Fast pace walking’ ?
“A They just took off walking real fast. It wasn’t a run and it wasn’t a slow walk. I mean to me, a slow walk is just dragging along, taking their good old time, but this started at a fast pace.
“Q What, if anything, did you do when you saw these men start to leave ?
“A I started going on down Hamburg Street towards Light Street to investigate them and, like I say, as I started down, I don’t know if they seen me or what, but they took to walking across Light Street at a fast pace. By this time Car Number 902, manned by Officer Robert Stevens and Edward Johnson, was northbound on Light Street and they observed them and'stopped them on the corner — on the northwest corner of Light and Hamburg Street. And I walked down, continued on, and Officers Johnson and Stevens were talking to the two men at that time.”

Officer Robert M. Stevens testified as follows:

“Q What, if anything, did you observe at that time on March 15, 1967?
“A We observed the defendant, Charles Norfolk.
MR. CARDIN: For the record, the witness has indicated the defendant, Charles Norfolk, seated at the counsel table.
“A And one Samuel Weaver, who is not present in the court room this afternoon. He emerged from alongside of 1001 Light Street, which is the law office of Harry Kaplan. As we were approaching up the street, these two walked hurriedly across the street into Hamburg Street. As we turned into Hamburg Street, the headlights of the radio car hit right on both of them and Charles Norfolk turned his back as if trying to hide something.
“Q What do you mean by ‘Turned his back as if to hide somehting’? Would you be a little more specific?
“A As we were making the turn into the street, I was driving the radio car. They were on the sidewalk, which would be the northwest corner of Light and Hamburg Street. He turned his back away from us as. if he was trying to hide something.
“Q What, if anything, did you do ?
“A We stopped. We got out. I asked him what they were doing. I got two conflicting stories from them.
“Q You asked them what they were doing?
“A That’s right.
“Q What response did you get ?
MR. HARRIS: I would object, if Your Honor please.
THE COURT: I will overrule the objection. Were they in custody at that time?
“A Not at that time, no sir.
THE COURT: All right, I will overrule the objection, but I will admit only what Norfolk said, not what the other man said.
“Q Did Norfolk give you a response ?
“A He stated they were going to a friend’s house to fix electrical fixtures.
THE COURT: A what?
“A Electrical fixtures.
“Q What time was this ?
“A Approximately 4:15 a.m. in the morning.
“Q What, if anything, occurred then ?
“A That is when Officer Johnson saw this screwdriver protruding from his left coat pocket. They were then placed under arrest for investigation and I called for the cruising patrol and, as was routinely done, they were searched and patted down. That is when the two bags were found on Charles Norfolk and the other bag was found on the other defendant, Samuel Weaver.
“Q Officer Stevens, did there come a time when Officer Henry joined you?
“A That is correct.
“Q When was that in relation to this episode you have just told us about ?
“A At about the same time we recovered the screwdriver from his pocket and it was certain information that we received from Officer Henry.
“Q What did Officer Henry tell you ?
“A He told us he had been observing him alongside of Harry Kaplan’s law office.”
“Q Officer Stevens, on March 15, 1967, at 4:15 a.m., when you met the defendant, Charles Norfolk, had you known him prior to that date ?
“A Yes, I did.
“Q Under what circumstances did you know him prior to that date ?
“A Prior to that, I had affected an arrest on him for a breaking and entering at 201 East Cross Street, which at the time was Catherine’s Confectionary Store.
“Q Did you know the outcome of that case ?
“A That is correct. He was found guilty.”

The third officer’s testimony was substantially the same as Officer Stevens’.

In addition, the record shows that the area where Norfolk was observed by the officers was well lit and no jimmy marks were found on the building he was suspected of attempting to enter.

The State contends the arrest did not occur until after (1) Officer Johnson observed the screwdriver protruding from Norfolk’s pocket (2) Officer Henry had informed Officer Stevens, the arresting officer, of his observations and that this coupled with Norfolk’s prior criminal record and his unusual explanation of his presence at that hour of the morning, constituted a sufficient basis for the arrest. We do not agree. We think that even a person with a criminal record can carry a screwdriver on a well lit street at 4:15 in the morning without being subject to arrest.

In Allen v. State, 229 Md. 253, 255-56, 182 A. 2d 832, 833 the Court of Appeals of Maryland stated as follows:

“The lawfulness of appellant’s arrest (and the proper admittance of the heroin into evidence as an incident thereto) depends upon whether the facts and circumstances within the officer’s knowledge were sufficient in themselves to warrant a man of reasonable caution in the belief that an offense was being committed in his presence. Price v. State, 227 Md. 28, 175 A. 2d 11; Brinegar v. United States, 338 U. S. 160 (a felony case). * * * a peace officer may arrest without a warrant for a misdemeanor committed in his presence or view.”

We think that this test is not substantially different from that required for a felony except for the requirement that in a misdemeanor case, as here, the offense must be committed in the officer’s presence. The test for a legal felony arrest was stated by the Court of Appeals of Maryland in Braxton v. State, 234 Md. 1, 4, 197 A. 2d 841, 843 as follows:

“* * * the arresting officer, acting as would a reasonably cautious man, must have had grounds (including facts and circumstances within his knowledge or of which he has reasonably reliable information) to believe (a) that a felony had been committed and (b) that the person arrested had committed the felony.”

In that case the Court held (also at page 4) that the fact that the trial court found:

“* * * (a) the police knew of recent burglaries in the neighborhood and were looking for evidence to help bring the perpetrators to justice, (b) the truck was not of the type to be expected in the area (not bearing the name of any firm or company) and took ‘evasive action’ without lights when followed, and (c) the occupants of the truck ran away * * *.”

was not sufficient to furnish probable cause for the arrest. Although the Court found that Braxton had committed an automobile violation which justified his arrest, and although the question of probable cause is dependent upon the facts and circumstances of each individual case, it appears to us that the rationale of Braxton controls our decision here. See also Edwardsen v. State, 231 Md. 332, 190 A. 2d 84.

Judgment reversed and case remanded for anew trial.


source: Caselaw Access Project

author: Murphy, C. J.,

license: Public Domain

text:
    JEROME OSBORNE v. STATE OF MARYLAND
    [No. 149,
    September Term, 1967.]

      Decided April 29, 1968.

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

      James W. Murphy for appellant.

      Martin M. Mrosinski, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and John H. Lezmn, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was charged in the Criminal Court of Baltimore under a five-count indictment with robbery, assault with intent to rob, common law assault, larceny, and receiving stolen goods. At the trial before the court sitting without a jury, the State produced two witnesses — the victim, Dallas Wyatt, and Ebie Sawyer, a self admitted participant in the crime. The victim testified that four colored boys came up behind him on the street, threw a coat over his head, hit him with a club, cut into his clothing, and removed his wallet containing $41.00. He was unable to identify any of the participants in the crime. Sawyer, the accomplice, testified that Jerome Hill and Michael Gray were also participants in the crime; that Hill and Gray each grabbed the victim’s coat and threw it over his head; that he, Sawyer, struck the victim over the head; that Gray went through the victim’s pockets, extracted his wallet, and handed it to appellant who was standing at the victim’s side; and that they ran from the scene of the crime when the police appeared, at which time the appellant tossed the victim’s wallet on the roof of a house. At the end of the State’s case, the court granted the appellant’s motion for judgment of acquittal on the counts charging assault with intent to rob, assault, and larceny, and thereafter entered a not guilty verdict on the robbery count. The court found appellant guilty as a receiver of stolen goods and sentenced him to three years imprisonment.

Appellant contends on this appeal that the State’s evidence showed that he was a principal in the robbery and, accordingly, the court erred in convicting him as a receiver of stolen goods. He relies upon the rule that one who is himself a principal thief cannot be found guilty of criminally receiving the thing stolen,, for the reason that he cannot receive from himself.

Robbery is larceny from the person, accompanied by violence or putting in fear. Harrison v. State, 3 Md. App. 148. More specifically, to constitute robbery, the property must, as in larceny, be both taken and carried away, so that an asportation of the stolen property, as well as a trespass, would appear tO' be indispensable elements of the offense. To constitute an asportation, the robber, like the thief in larceny, must acquire complete control of the property at least for an instant, but the slightest asportation is sufficient to satisfy that element of the offense. Clark and Marshall on Crimes (6th Edition), §12.12; Perkins on Criminal Lam, pp. 236-240. We think it clear beyond any question that, like the thief in a larceny, the principal in a robbery who actually takes and carries away the property from the victim cannot be convicted of the crime of receiving the property stolen. See 45 Am. Jur. Receiving Stolen Property, §10; Clark and Marshall on Crimes, §12.37; Perkins on Criminal Law, p. 275; Wharton’s Criminal Law and Procedure (Anderson Edition), Vol. 2, §576. When one accused of receiving stolen property is a mere aider or abetter in the commission of the robbery, other than an accessory before or after the fact, the decisions are in conflict as to whether the circumstances can ever be such that he can be convicted of receiving the property stolen. The inquiry in such cases would appear to be whether the participation in the robbery by one accused of receiving the goods is of such character and extent as to make the receiving a part of the theft itself, or whether the receiving is, under the circumstances, so distinct as to constitute the separate offense of receiving stolen property. See the cases collected in the Annotation at 136 A.L.R. 1087, particularly at pp. 1093-1095 and 1101-1103. In this connection, it has been held, in larceny cases, that if the receiving takes place subsequent to- and after the completion of the larceny, one who has participated in such crime as a confederate of the thief may nevertheless be convicted of receiving stolen property, but that the rule is otherwise if the receiving is embraced in the caption and asportation. See Smith v. State, 52 N. E. 826 (Ohio); Adams v. State, 53 So. 451 (Fla.). So, in State v. Tindall, 50 S. E. 2d 188 (S. C.) where it was urged, as it is here, that the State’s testimony showed that the accused was guilty as a principal thief, and could not, therefore, be convicted of receiving the same goods, the relevant question was whether the evidence justified a finding that the accused was not a principal in the caption and asportation of the stolen property, but became a participant only after the larceny was consummated.

As heretofore indicated, the evidence before us shows that appellant, together with Sawyer, Hill, and Gray came up from behind the victim and that while the others physically pounced on the victim, appellant stood by the victim’s side, did not touch him, but received his wallet after it had been taken from him, following which they all fled the scene. No other material evidence is contained in the record to shed further light on or provide additional insight into the commission of the crime. The fact that the four boys simultaneously approached the victim from the rear, that Sawyer, Hill, and Gray each executed a particular function directly in furtherance of the robbery, and that the asportation of the stolen property was an essential element of the offense, would strongly indicate that appellant’s role was as a principal in the robbery.

There was, however, absolutely no corroboration of the testimony of the accomplice Sawyer which tended to show that the appellant was either identified with the perpetrators of the crime, or had participated in the commission of the crime itself, this being the test to determine the legal sufficiency of corroborative evidence. See Boone v. State, 3 Md. App. 11. Appellant could not, therefore, properly have been convicted as a principal in the robbery, and we surmise that this was the basis of the lower court’s acquittal on the robbery charge.

While the rule is that a thief and a receiver are not accomplices, Polansky v. State, 205 Md. 362, and hence the testimony of Sawyer, the self admitted participant in the robbery, would not ordinarily have to be corroborated to convict appellant of receiving stolen goods, an exception to that rule is recognized when the thief and the receiver of stolen property conspire together, or enter into a pre-arranged plan, for one to steal and deliver the property to the other; and pursuant to such plan, one does steal and deliver to the other. See Keene v. State, 2 Md. App. 325; Hair v. State, 294 P. 2d 846 (Okla.).

On the record before us, we think that, at the least, the evidence shows that there was a plan of concerted action whereby the accomplice, Gray and Hill would rob the victim and appellant would then and there receive his wallet. Under these circumstances — there being no legally sufficient evidence corroborative of Sawyer’s testimony — appellant’s conviction of the crime of receiving stolen property cannot stand. We prefer to rest our decision on this basis, rather than to hold on a record as skimpy as the present one that the evidence showed that appellant was a principal in the robbery, and that his receiving of stolen property, under the circumstances, was not so distinct as to constitute the separate offense of receiving stolen property.

Judgment reversed; case remanded for a new trial.

      . That the victim testified that four colored boys were involved in the crime (none of whom he could identify) would not, as a matter of law, tend to show that appellant was either identified with the perpetrators of the crime or had participated in the crime itself, even though there was evidence that all the participants, including appellant, were in fact Negroes.


text:
    JACKIE C. PARKER v. STATE OF MARYLAND
    [No. 184,
    September Term, 1967.]

      Decided April 29, 1968.

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

      D. William Simpson for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Alfred T. Fruitt, Jr., State’s Attorney for Wicomico County, and William B. Yates, II, State’s Attorney for Dorchester County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted on May 16, 1967 by a jury in the ■Circuit Court for Wicomico County of first degree murder and robbery. He was sentenced to life imprisonment on the murder ■charge and to a twenty-year term under the robbery conviction, to run consecutively with the life sentence. His primary ■contention on this appeal is that the court erred in instructing the jury on the issue of burden of proof as to appellant’s defense of insanity.

There was evidence adduced at the trial tending to show that at approximately 9:00 p.m. on December 30, 1966, appellant ■entered the grocery store of William Arnie in Cambridge and .asked Arnie, whom he knew, to go to the back of the store with him; that a shot went off and Arnie called to his son, “Run Johnnie, run”; that a second shot went off and Johnnie ran from the store to call the police; that Arnie came out of the store .holding his stomach and stated to a witness, “Oh my God, Wayne, the Parker boy shot me”; that appellant then ran out ■of the store with a gun in his hand and fled in the direction of his apartment; that shortly thereafter two officers of the Cambridge Police Department went to appellant’s apartment and found him lying across a bed; and that the officers discovered .a gun in a hamper in the apartment. It was further established that the bullets found in the grocery store were fired by the .gun found in appellant’s apartment, that approximately $900.00 was found missing from the store safe, as well as $720.00 which Arnie had been holding for a friend, and that $1,598.00 was found in appellant’s apartment.

There was conflicting evidence as to whether appellant was ■drunk at the time of the crime, the arresting officers testifying that he was not drunk when they arrested him shortly after the ■crime, and appellant, testifying on his own behalf, stating that he was so drunk that he could not remember any of the events of the evening preceding his arrest. There was other evidence showing that appellant consumed a large quantity of alcoholic beverages on the day of the crime, that he had been a heavy drinker since he was thirteen years of age, that once he started drinking, he usually wouldn’t stop until he “passed out,” and that he had no memory of what occurred after he became drunk. There was evidence also showing that appellant was twenty-five years of age at the time of the crime and of low mentality.

Appellant’s principal defense was that he was insane at the time of the commission of the crime. To establish this defense, he produced Dr. Talmage Reeves, a psychiatrist, who testified that he examined appellant on May 1, 1967 for approximately one hour and that on the basis of this examination, he concluded that at the time of the commission of the crime, appellant had a “character behavior disorder” and, in addition, “an acute brain syndrome secondary to alcohol ingestion — severe alcohol ingestion”; that the acute brain syndrome was due to ingestion of alcohol; that it was acute and irreversible in appellant’s case because of its long existence; that as a result thereof, appellant had impaired comprehension and judgment, including impaired memory; that such impairment was to the extent “that he was unable to comprehend that if he did something which was violent, what the consequences may do-be”; that he could not say specifically “yes or no” whether appellant “was of such mental capacity and reason so as not to be able to properly distinguish between right and wrong and to know the nature and consequences of his acts as applied to himself,” but that “because of comprehension and judgment impairment, there was some difficulty”; that “comprehension and judgment were somewhat impaired to the point that he was unable to think clearly and to know the nature of what he was doing and the consequences,” but that he could not say that appellant “absolutely did not know right from wrong.”

On the basis of this testimony, the court ruled the defense had sufficiently rebutted the presumption of sanity to permit the issue to go to the jury. Thereafter, the State called Ido Adamo, a psychiatrist at Clifton Perkins State Hospital. He testified that he had examined appellant and diagnosed his condition as a character disorder with chronic alcoholism. Dr. Adamo testified that appellant had no psychosis; that “he certainly doesn’t suffer from any disease which could have caused him to be in such a state of mind to be unable to know right from wrong”; that “if he was intoxicated, that’s a different story”; and that appellant was “probably responsible” for his action at the time of the commission of the crime.

The court, after instructing the jury on the standard to determine whether a person is sane or insane under the M’Naghten test, instructed the jury on the issue of burden of proof as follows :

“* * * the burden of proof is upon the defendant to establish insanity by a preponderance of the evidence ; but then the burden then shifts to the State to prove beyond a reasonable doubt that he was sane.”

That this instruction was erroneous is entirely clear. In Bradford v. State, 234 Md. 505, decided May 4, 1964, and in Fowler v. State, 237 Md. 508, decided February 11, 1965, it was held that it was error to charge a jury — in those cases where the presumption of sanity had been overcome by the accused — that the burden was on the defense to prove insanity by a preponderance of the evidence. The court held in such cases that the jury should be instructed that the burden of proof is upon the State to prove the defendant sane beyond a reasonable doubt. See also Jenkins v. State, 238 Md. 451; White v. State, 3 Md. App. 167; McCracken v. State, 2 Md. App. 716; Bergin v. State, 1 Md. App. 74.

The effect of the court’s instruction was, therefore, to inform the jury that even though appellant had sufficiently rebutted the presumption of sanity to permit the issue to go to the jury, nevertheless, it was incumbent upon him to prove his insanity by a “preponderance of the evidence,” before the burden of proof shifted to the State to show that he was sane “beyond a reasonable doubt.” Appellant made no objection to the court’s instructions and indeed consented to the charge being transcribed and a copy given to the jury for its consideration. Ordinarily, where no objection is made to the court’s instructions, a contention that there was error therein is not reviewable on appeal. Hicks v. State, 3 Md. App. 225; Maryland Rule 756 g. The reason for the rule requiring objection as a prerequisite to appellate review is a salutary one, being designed to afford the trial judge an opportunity to correct inadvertent omissions or inaccuracies in his instructions, where the alleged error is one that might have been readily corrected if it had been called to the trial judge’s attention. Bennett v. State, 230 Md. 562; Canter v. State, 220 Md. 615; Reynolds v. State, 219 Md. 319. Maryland Rule 756 g further provides, however, that we may “take cognizance of and correct any plain error in the instructions, material to the rights of the accused,” even though there was no objection to the instructions. In Martel v. State, 221 Md. 294 and Madison v. State, 200 Md. 1, it was held that this provision of the Rule should not be invoked to cure bad guesses by counsel whether or not to object to the court’s instructions, nor was it designed to alleviate consequences unfortunate to the accused resulting from his counsel’s choice of trial tactics. We do not believe that appellant’s failure to object to the erroneous instruction was either a bad guess or a trial tactic but resulted rather from a misunderstanding of the applicable law — a misunderstanding also shared by the court, and by the State, despite the clear articulation of the law in Bradford and Fowler. With appellant’s basic defense being that he was insane at the time the crime was committed, such an error in the instructions can hardly be deemed harmless; on the contrary, the error was a fundamental one going to the very heart of a successful defense based on insanity. We hold, under the circumstances of this case, that the erroneous instruction so* fundamentally affected appellant’s insanity defense as to constitute plain error material to the rights of the accused within the spirit and meaning of Maryland Rule 756 g.

The State contends that even if the court’s instructions on burden of proof were erroneous, nevertheless, there was no> reversible error since there was no sufficient evidence of insanity adduced at the trial by the appellant to require the submission of the issue of insanity to the jury in the first place. While the-testimony of Dr. Reeves concerning appellant’s lack of criminal responsibility under the M’Naghten test was sketchy and, at times, seemingly self-contradictory, we cannot say that the lower court erred in permitting the issue to go to the jury, particularly since it could have found that the gist of Dr. Reeves’s testimony was that because of appellant’s acute brain -syndrome, brought on by ingestion of alcohol over a long period -of time, his judgment and comprehension at the time of the crime were impaired to the extent that he did not know what he was doing or the nature and consequences of his acts. Compare Fowler v. State, supra; O’Connor v. State, 234 Md. 459; White v. State, supra; McCracken v. State, supra.

In view of our conclusion, we need not reach other contentions raised by appellant.

Judgment reversed; case remanded for a new trial.

      . As the trial was held before June 1, 1967, the test of criminal responsibility then prevailing was the M’Naghten-Spencer test.

      . See, however, Crews v. Director, 245 Md. 174, and Avey v. State, 249 Md. 385.


author: Per Curiam.

text:
    LLOYD DOUGLAS WILLIAMS v. STATE OF MARYLAND
    [No. 214,
    September Term, 1967.]

      Decided April 29, 1968.

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

      Andrew J. Graham for appellant.

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

Convicted of murder in the second degree by the court sitting without a jury and sentenced to thirty years imprisonment, appellant contends on this appeal from that judgment that the evidence introduced at the trial of his drunkenness at the time the crime was committed was such that, as a matter of law, he could not have been convicted either of murder or manslaughter.

The evidence showed that at approximately 1:45 a.m. on August 22, 1966 appellant plunged a knife into his common law wife during an argument, after which he pushed her down the steps and ran from the house. There was evidence that appellant and his wife had been drinking heavily on the day and evening of the killing and that appellant had no recollection of having killed his wife.

The thrust of appellant’s argument is that he was so intoxicated that he was deprived of his mental faculties to such a degree that he could not have formed the intent required to convict him of murder or manslaughter. The trial judge, at the conclusion of the evidence, stated that he would have found appellant guilty of murder in the first degree except for the fact that appellant’s intoxication rendered his action other than deliberate and premeditated.

In Chisley v. State, 202 Md. 87, the Court of Appeals held that while voluntary intoxication may be considered by the trier of fact as it bears on the questions of wilfulness, deliberation and premeditation necessary to constitute first degree murder, “voluntary intoxication will not reduce murder to manslaughter nor will it excuse the crime.” On the record before us, we think Chisley stands as authority supporting the lower court’s conviction of appellant for second degree murder. See Beall v. State, 203 Md. 380; Mock v. State, 2 Md. App. 771; Michael v. State, 1 Md. App. 243.

Judgment affirmed.


text:
    CLARENCE JAMES SUTTON v. STATE OF MARYLAND
    [No. 234,
    September Term, 1967.]

      Decided April 29, 1968.

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

      Charles Philip Brown for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and B. Harrison Stone, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Per Curiam.

Clarence James Sutton, the appellant, was convicted in the Circuit Court for Baltimore County by Judge John Grason Turnbull, sitting without a jury, under an indictment charging forgery, causing an instrument to be forged, uttering a forged instrument, and obtaining money by false pretenses. He contends on this appeal that the evidence was insufficient to support the conviction. He makes no complaint of the general verdict. The sentence was confinement for a term of seven years.

The evidence shows that Sutton on June 23, 1966 presented a check to Irving Davis to be cashed. The check was apparently made by the Paul Pet Construction Company and was payable to Lawyer W. Boice. Sutton produced suitable identification, and the check was cashed for him; however, it was subsequently returned to Davis by the bank with the notation that the check bore unauthorized signatures.

Henry Becker, accountant for the Paul Pet Construction Company, testified that company checks were missing, or had been stolen, and that neither Mascón Cosen or M. Kickner (the signatures on the check) were authorized to sign checks for the company, and furthermore that no authorized check of the company had been issued to Lawyer W. Boice. Davis positively identified Sutton at the trial. Samples of Sutton’s handwriting, taken from two forms that Sutton filled out when he was admitted to the Baltimore County Jail, were offered into evidence as well as samples of Lawyer W. Boice’s handwriting. Detective Sergeant Howard De Shields, a handwriting expert, made a comparison of the known writing of Sutton and of the known handwriting of Lawyer W. Boice. He testified that the endorsement on the check of Lawyer W. Boice was written by Sutton. Sutton denied cashing the check.

Identification by the victim, if believed, is enough to convict. Sutton v. State, 2 Md. App. 639, 236 A. 2d 301. In a nonjury trial the judge determines the weight of the evidence and the credibility of the witnesses. Hutchinson v. State, 1 Md. App. 362, 230 A. 2d 352, Sadler v. State, 1 Md. App. 383, 230 A. 2d 372, Sutton v. State, supra. Since Sutton’s conviction was supported by substantial evidence, we are unable to say that the verdict of the trial judge was clearly erroneous. O’Brien v. State, 1 Md. App. 94, 227 A. 2d 362, Maryland Rule 1086.

Sutton further alleges error in that his objection to the admissibility of his signatures on the jail forms was not sustained, citing Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.

In Schmerber v. California, 384 U. S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 the Supreme Court said that the privilege against self-incrimination “is a bar against compelling ‘communications’ or ‘testimony’, but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Therefore Miranda v. Arizona, supra would not be applicable. The Supreme Court in Schmerber v. California, supra further stated that at 384 U. S. at 765, 86 S. Ct. 1826, 1833:

“Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”

The handwriting evidenced in the case at bar was not of a communicative nature, and therefore according to Schmerber v. California, supra not a violation of the privilege against self-incrimination. In Gilbert v. California, 388 U. S. 263, 266-67, 87 S. Ct. 1951, 1953, 18 L. Ed. 2d 1178 the Supreme Court of the United States citing to Schmerber v. California, supra stated:

“One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.”

See also United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149.

Judgi'n ant affirmed.


text:
    ALVIN LeROY HOWARD v. STATE OF MARYLAND
    [No. 237,
    September Term, 1967.]

      Decided April 29, 1968.

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

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

      Dickee M. Howard, 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.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted on November 17, 1966 by a jury in the Criminal Court of Baltimore of assault with intent to rob and common-law assault and sentenced to ten years in the Maryland Penitentiary. He contends on this appeal that the lower court committed prejudicial error in admitting certain hearsay evidence at his trial.

The pertinent facts are these: On February 1, 1966 at approximately 2:30 p.m., two men entered a liquor store owned and operated by Herman Levin and his wife, both of whom were present in the store at the time. One of the men, brandishing a gun, said “Don’t move, stand where you are,” while the other man, later identified as the appellant, went behind the counter searching for money. Mr. Levin attacked the man holding the gun, after which appellant kicked Levin and hit him over the head with a bottle. The robbers then fled.

Herman Levin testified that he identified appellant from police photographs shown to him, and also at a police lineup as one of the men that had attempted to rob him. He also identified appellant at the trial.

Detective George Montgomery, testifying for the State, corroborated the fact that Mr. Levin identified the appellant at the police lineup, as well as from the police photographs. Over appellant’s objection, Detective Montgomery was permitted to testify that Mrs. Levin also viewed the police lineup and positively identified the appellant. The appellant, testifying on his own behalf, denied any knowledge or participation in the crime.

We think appellant’s objection to Detective Montgomery’s testimony that Mrs. Levin identified appellant as one of the perpetrators of the crime at a police lineup should have been sustained and that it was clear error to admit the testimony into evidence. While it is true that testimony of an extrajudicial identification is generally admissible as an exception to the hearsay rule, where the identification was made under circumstances precluding any reasonable suspicion of unfairness or unreliability, Johnson v. State, 237 Md. 283, this is not a case like Basoff v. State, 208 Md. 643, where the court held admissible the testimony of a police officer that a witness in the case had made an extrajudicial identification of the accused. Nor is this case like Judy v. State, 218 Md. 168, where the witness who had made an extrajudicial identification of the accused was permitted to testify in court as to such identification; neither is this case like Bulluck v. State, 219 Md. 67, where a police officer was permitted to testify concerning an extrajudicial identification made by the complaining witness and previously testified to by that witness, or like Proctor v. State, 223 Md. 394, where a police officer was permitted to testify that the victim made an extrajudicial identification of the accused, even though the victim did not testify to such identification, where he was a witness at the trial and was, therefore, available “and could have been recalled and questioned about it.” In Johnson v. State, supra, the court found no error in permitting testimony by a police officer that a witness in the case made an extrajudicial identification of the accused, where that witness did not testify to such identification, but was recalled to testify on redirect examination and made a courtroom identification •of the accused. All of these cases share a common thread, namely that the person making the extrajudicial identification was present in court and available as a witness. In Johnson, the Court of Appeals noted at page 290:

“* * *where the out-of-court declarant is available as a witness, the dangers sought to be avoided by the hearsay rule are not present. See Commonwealth v. Johnson, 193 A. 2d 833 (Pa. 1963), where it is said that the testimony of a police officer as to an extrajudicial identification made at a voice lineup is admissible and not objectionable as hearsay when the identifying victims are witnesses at the trial and subject to •cross-examination. Such a rule is in line with the A.L.I. Model Code of Evidence (Rule 503) and the Uniform Rules of Evidence (Rule 63 [ 1 ]), which, in effect, provide that testimony as to an extrajudicial identification is admissible if the identifying person is available as a witness so as to afford the accused the rights of confrontation and cross-examination. We hold therefore that where, as here, the identifying victims or eyewitnesses were present and subject to cross- examination, the testimony of the police officer as to the extrajudicial identifications was admissible.” (Emphasis supplied).

In the present case, Mrs. Levin did not appear as a witness; and was not in court during the trial, her absence being explained by Mr. Levin as due to the fact that “they both couldn’t leave at the same time.” Mrs. Levin was not, therefore, as required by Johnson, “available as a witness so as to afford the accused the right of confrontation and cross-examination.”

We think Bulluck, Proctor and Johnson carry the admissibility of testimony concerning extrajudicial identifications to-its ultimate boundaries and we decline to create a new frontier by upholding the admissibility of such evidence as was adduced in this case. See Annotation 71 A.L.R. 2d 449; 19 Md. L. Rev. 201. Indeed, whether the circumstances under which Mrs. Levin identified appellant at the police lineup were so “impermissibly suggestive” as to deny appellant due process could in no event readily be explored unless she were available as a witness in the case. See Simmons v. United States, 390 U. S. 377, 88 S. Ct. 377, 19 L. Ed. 2d 1247; United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149.

We do not believe that this is a case where the out-of-court identification may be deemed harmless. Compare Lewis v. State, 2 Md. App. 318. Nor do we consider such evidence as merely cumulative. See Rose v. State, 240 Md. 65. By placing before the jury evidence that Mrs. Levin also identified appellant as one of the robbers, the State obviously intended h> buttress its case by establishing that two persons, rather than one, identified the appellant. While it is true that identification by one eyewitness, if believed, is sufficient to support a conviction, we cannot say that the testimony in question had no material bearing upon the jury’s determination of the vital issue of appellant’s identity as one of the criminals. Accordingly, we find the error prejudicial. See Proctor v. State, supra, at page 397.

Judgment reversed; case remanded for a new trial.


text:
    STATE OF MARYLAND v. LARRY GORDON
    [No. 99,
    September Term, 1967.]

      Decided April 30, 1968.

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

This is an application for leave to appeal from an order filed on June 9, 1967, by Judge Walter H. Moorman, presiding in the Circuit Court for Montgomery County, granting relief sought under the Uniform Post Conviction Procedure Act, and awarding the petitioner a new trial.

The petitioner was convicted of housebreaking and larceny on February 11, 1964, after entering a plea of guilty before Judge Kathryn J. Shook. He was then sentenced to a term of ten years in the Maryland Penitentiary. He filed this, his first petition under the Act, on December 15, 1966. On March 15, 1967, an amended petition was filed by his attorney. At his hearing, only two contentions were presented:

(1) That his attorney was incompetent.
(2) That the trial judge improperly accepted his plea of guilty.

The lower court, after a full evidentiary hearing, found that the trial judge had properly accepted the plea of guilty after asking the defendant a series of questions so as to satisfy the court that the plea was knowingly and voluntarily made. The court found that the trial judge had no way of knowing of the incompetence of defendant’s counsel. No objection has been presented to this finding.

As to the first contention, the court found that :

“The petitioner was represented by incompetent counsel and for the following reasons: (1) absolutely no effort was made by the petitioner’s attorney to investigate the charges against him, nor did he even attempt to prepare a defense, nor did he make any attempt whatever to find or discover evidence which he might have introduced as matter in extenuation or mitigation even though there was a plea of guilty; (2) that an attorney actively engaged in malpractice and proven to be actively engaged in fraud and deceit against his clients, is not only incompetent but totally unfit to represent a defendant in any criminal or civil case.”

The transcript of the testimony taken at the hearing discloses that shortly after the petitioner’s arrest in January, 1964, his mother, Mrs. E. E. Gordon, employed Philip H. Sapero, Sr., an attorney, to represent her son. A week before the trial, she conferred with Mr. Sapero, who assured her that if her son pled guilty, he would not receive a sentence of more than six months, but that if he did not so plead, he would receive the maximum sentence. Prior to this conference, Mrs. Gordon had visited Mr. Sapero’s house three times at his request, paying him on the first visit one hundred dollars, on the second visit one hundred dollars, and on the third visit two hundred dollars at which time she also gave him a promissory note for eight hundred dollars.

The petitioner testified that the attorney visited him twice before trial. The first visit was held three weeks before trial and lasted about forty-five minutes. The next visit was one-half hour before trial at which time his attorney advised him that if he would plead guilty, he would not be confined for more than two years. The testimony further discloses that although five Montgomery County police officers were involved in the case, including the arresting and investigating officers, none of these police officers were interviewed by the attorney for the petitioner nor is there any evidence to reflect that any witnesses were interviewed by him other than the petitioner himself. The transcript reveals that the petitioner entered a plea of guilty and that the trial convened at 10:15 a.m. and was completed at 10:40 a.m., a total of twenty-five minutes. Before sentencing, the trial judge asked counsel if he desired a pre-sentence investigation, to which he replied that he did not. The judge then asked the petitioner the same question, to which he also replied in the negative.

Petitioner’s attorney failed to appear at the hearing and service could not be obtained upon him since he had left the jurisdiction after his disbarment from the practice of law in the State of Maryland on October 6, 1964, for the embezzlement of substantial sums of money from his clients.

In its application for leave to appeal, the State raises only-one contention, namely, that the petitioner’s plea of guilty, made at the time of his trial, was free and voluntary.

It has been repeatedly held by the Court of Appeals and by this Court that a plea of guilty, freely and voluntarily made, amounts to a conviction of the highest order. Gophes v. State, 1 Md. App. 396, 399, 230 A. 2d 475 (1967) and cases cited therein. However, such a plea of guilty must be entered under circumstances indicating understanding and acquiescence on the part of the accused, and, under such circumstances, the acceptance of such a plea cannot be attacked for the first time on appeal. Gleaton v. State, 235 Md. 271, 276, 201 A. 2d 353 (1964). The lower court found that petitioner’s plea was not freely and voluntarily made, and in doing so, based his conclusions upon the factual finding that representation by his attorney was totally inadequate.

“The test for measuring competency of counsel is whether, after examination of all facts of the case and the making of findings with respect thereto, it appears that the petitioner has been afforded adequate and effective representation.” Jones v. Warden, 244 Md. 720, 721, 224 A. 2d 274 (1966), citing Slater v. Warden, 241 Md. 668, 217 A. 2d 344 (1966); Hyde v. Warden, 235 Md. 641, 202 A. 2d 382 (1964).

On the basis of the factual findings by the lower court, that the petitioner had not been afforded adequate and effective representation, we cannot say that his decision was clearly erroneous. Maryland Rule 1086.

Application denied.


author: Psr Curiam.

text:
    ALLEN RAY MINNICK v. STATE OF MARYLAND
    [No. 253,
    September Term, 1967.]

      Decided April 30, 1968.

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

      John G. Hennegcm for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Robert A. DiCicco, Assistant State's Attorney for Baltimore County, ■on the brief, for appellee.
   Psr Curiam.

Appellant was convicted in the Circuit Court for Baltimore County by Judge John E. Raine, Jr., sitting without a jury, of receiving stolen goods, namely a 1966 GTO Pontiac belonging ■to Edward W. Hullings, Sr. He was sentenced to five years under the jurisdiction of the Department of Correction. On this appeal he contends that the court erred in admitting testimony and photographs relating to the stolen car on the ground that such evidence resulted from an illegal search and seizure.

The evidence adduced at the trial showed that on Sunday morning, March 5, 1967 at approximately 10:00 a.m., Joseph Buckler had occasion to peek through a crack of a garage door in Baltimore City; that he saw three men inside hoisting a motor out of a white sport Corvair; that he heard them say, “You better watch the door because you can’t tell who might be walking around here”; that he then called the police and shortly thereafter Officer Charles Cluster arrived on the scene. The evidence further showed that after Buckler told Officer Cluster about his observations, Cluster knocked on the garage door to find out ■“what violations they were committing, if any at all”; that three men then ran out through a small window in the rear of the garage, one of whom was later identified as the appellant; and that he pursued them with Buckler in his police car and shortly thereafter arrested the appellant.

After Cluster arrested the appellant, he returned to the garage and found one of the doors open. Without entering, Officer Cluster observed a GTO Pontiac which he knew to be on the “hot sheet” as a stolen car. He then entered the garage and discovered six cars in all, four of which were thereafter identified as having been stolen. Approximately forty minutes had passed from the time Cluster first began his pursuit of the fleeing men from the garage to the time when he returned to the garage. Cluster testified that the garage door appeared to him to have been forced open, although there was no evidence as to how the door was opened or who opened it. There was evidence showing that police cars had responded to this location when Officer Cluster requested assistance during the early phases of his chase of the appellant.

The evidence further showed that the appellant was the lessee of the garage but had sublet it to one Williams.

Appellant contends that the officers had no right to search the garage without a search warrant. The State contends that the evidence relating to the search of the garage was properly-received in evidence on the theory that appellant had abandoned the premises when the police entered and that, under the circumstances, the search was lawful.

We think the evidence in question was properly admissible on the ground that no search was made in the constitutional sense when Officer Cluster, looking through the open door, observed the vehicle which he knew to have been stolen. In St. Clair v. State, 1 Md. App. 605, we noted at page 611 that a search within the ambit of Fourth Amendment protection implies some exploratory investigation, that a “search” in the constitutional sense implies an invasion and quest, a looking for or seeking out, a prying into hidden places for that which is concealed.

As heretofore indicated, Officer Cluster observed property known to him to be stolen while standing outside of the garage. At that point, he had probable cause to believe that a felony had been committed, namely the grand larceny of an automobile or the receiving thereof (over $100.00 in value) and that those fleeing the garage, one of whom was the appellant, had committed such crimes. Officer Cluster’s entrance into the garage, therefore, did not constitute a trespass and his subsequent seizure of the Pontiac automobile was entirely lawful. As the evidence does not show that it was the police who forced the garage door open, we are unwilling to assume that such was in fact the case.

The question of the lower court’s jurisdiction was also raised at the end of trial and by the appellant, pro se, on this appeal on the ground that since the offense of receiving stolen property occurred in Baltimore City, the Baltimore County Circuit Court was without jurisdiction to hear the case. We think the appellant waived objection to the venue of the offense in Baltimore County by failing to timely object thereto and by pleading to the charge. See Lievers and McLean v. State, 3 Md. App. 597.

Judgment affirmed.

      . Harry Barker, Jr. was co-indicted with appellant for the crime. They were tried together and Barker was acquitted.


author: Anderson, J.,

text:
    GENE DAVID WEDDLE v. STATE OF MARYLAND
    [No. 168,
    September Term, 1967.]

      Decided May 2, 1968.

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

      Stuart E. Hirsch, with whom was Nelson R. Kandel on the brief, for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, Jr., State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, Gene David Weddle, was convicted of assault in the Circuit Court for Anne Arundel County by Judge E. Mackall Childs, sitting without a jury, and sentenced to eight years under the jurisdiction of the Department of Correction. He appeals from the judgment.

On appeal, appellant raises four contentions:

(1) That it was constitutional error for the State to pray a jury trial in the People’s Court and for the Circuit Court to try the case without an information or indictment being filed or a preliminary hearing held.
(2) That appellant was deprived by the lower court of the effective assistance of counsel.
(3) That the evidence was not legally sufficient to support the conviction of the appellant for assault with a deadly weapon.
(4) That the sentence of the lower court was illegal.

The record transcript discloses that the appellant was brought to trial in the Circuit Court for Anne Arundel County on June 6, 1967 on two State warrants charging him with assault and carrying openly a deadly weapon with intent to injure. The State had prayed a jury trial in the People’s Court and the cases had been sent directly to the Circuit Court for trial. Both the appellant and the State waived a jury trial and appellant was then arraigned upon each warrant and entered pleas of not guilty. Prior to trial appellant moved for a dismissal of the charges against him because the court lacked jurisdiction since the State had prayed a jury trial in the People’s Court, nor had the appellant been indicted by a Grand Jury or an information filed against him. The motion to dismiss was denied.

The record transcript further discloses that on February 20, 1967, at about 7:30 a.m., Lieutenant Kinsey of the Anne Arundel Police, in uniform and driving a marked police cruiser, stopped appellant and a companion, William Kratsas, on Arundel Beach Road in Severna Park for questioning in connection with a breaking and entering that had occurred about two hours earlier of the nearby Hahn Building located at the intersection of Ritchie Highway and Arundel Beach Road. According to Lieutenant Kinsey’s testimony appellant and Kratsas were walking in a westerly direction on Arundel Beach Road and driving east he passed them, turned into a dirt lane and stopped. He stepped from his patrol car and called to them. Kratsas turned around but appellant kept on walking. He called a second time and appellant turned and came back towards him and stopped behind Kratsas.

While Lieutenant Kinsey was conversing with Kratsas, Officers Smith and Martin, who had been following Kinsey in another patrol car, arrived at the scene. As the two officers approached, they observed appellant remove a revolver from his coat with his right hand and transfer it behind his back to his left hand. Officer Smith leaped out of the patrol car with drawn gun, rushed over, and ordered appellant to drop his gun. Officer Martin did likewise and it was then that Lieutenant Kinsey first observed appellant holding a .32 caliber automatic revolver pointed directly at his midsection. Appellant responded to the police command by dropping the gun in the snow and covering it with his left foot.

The gun contained four live rounds of ammunition with an empty cylinder on top. Upon being qualified as an expert witness, Lieutenant Kinsey stated that the empty cylinder was carried on top for safety while in pocket and that upon pulling the trigger the gun would fire. Both Officers Smith and Martin testified and fully confirmed the testimony of Lieutenant Kinsey. Each observed appellant pointing the gun directly at Lieutenant Kinsey.

Appellant, who took the stand in his own defense, testified that he did not intend to shoot Lieutenant Kinsey but took the gun from his pocket for the purpose of hiding it. He stated that the gun belonged to his companion who had asked him to carry it for him.

The lower court found appellant guilty of assault but not guilty of carrying openly a deadly weapon with intent to injure, since that offense merged with the offense of assault.

I

Appellant in his first contention complains that he was deprived of his constitutional rights by the State’s demand for a jury trial in this case. While admitting that the State had the right to pray a jury trial when his case came before the People’s Court for Anne Arundel County, he contends that by electing a jury trial in this case, the State deprived him of his constitutional rights, in that this election subjected appellant to a harsher punishment, which, in fact, he did receive, than he could have received had his trial been held in the People’s Court. Appellant argues that since the maximum sentence the People’s Court can impose for common-law assault is three years, Article 27, § 689 (c) (1), the Circuit Court is limited to the same measure of punishment on appeal. There is no merit to this contention.

The crime of assault is an attempt by force to injure the person of another. Assault is a common-law crime, and in Maryland there is no statutory limitation on the amount of punishment that may be imposed for that offense. Roberts v. Warden, 206 Md. 246, 252, 111 A. 2d 597 (1955); Yantz v. Warden, 210 Md. 343, 351, 123 A. 2d 601 (1956); Lloyd v. State, 219 Md. 343, 353, 149 A. 2d 369 (1959). The Magistrates Courts are granted concurrent criminal jurisdiction with the Circuit Courts in certain cases, including common-law assault. Section 13 (a) of Article 52, Maryland Code (1968 Repl. Vol.) provides, in pertinent part, that the power of the trial magistrates to try and dispose of all such offenses not made punishable by statute by confinement in the penitentiary or involving a felonious intent is co-extensive with the jurisdiction of the circuit court, “* * * provided, however, that the accused, when brought before any such trial magistrate, or being informed by him of his right to trial by jury, freely elects to be tried before such trial magistrate, and provided, further, that a jury trial be not prayed in such case on the part of the State by the State’s Attorney.” (Emphasis supplied). This section excludes from the jurisdiction of the trial magistrate any case in which the State’s Attorney prays a jury trial on behalf of the State.

In this case appellant was brought before the People’s Court for Anne Arundel County upon a State warrant charging him with assault, a common-law offense not made punishable by statute, by confinement in the penitentiary and not involving a felonious intent. Accordingly, the People’s Court had jurisdiction to try and dispose of the case in the absence of an election by the accused or by the State for a jury trial. Yantz v. Warden, supra. When a jury trial was prayed by the State, the People’s Court was thereby divested of any further jurisdiction over the appellant who immediately became subject to the jurisdiction of the Circuit Court for Anne Arundel County as fully and effectually as if that court had acquired that jurisdiction originally. Lloyd v. State, supra.

Appellant’s contention that the sentence imposed by the Circuit Court in this case cannot exceed the maximum sentence that could be imposed by the People’s Court for the offense charge is answered in Lloyd v. State, supra, where the same •contention was raised. There the court pointed out that the section involved in that case fixed only the jurisdiction of the police magistrates in Baltimore City and did not in any way affect, alter or modify the power and authority of the Criminal Court of Baltimore to impose punishment for the common-law offense of simple assault and battery. The court at page 353 further went on to say:

“An assault and battery, when tried by the Criminal Court of Baltimore or the Circuit Court of a county— whether on a state warrant, an information or an indictment or de novo on appeal — being a common-law offense, there is no statutory limitation on the punishment which may be imposed therefor by a criminal court.”

Moreover, trial by the People’s Court, even though it has jurisdiction, is not an inalienable right which may not under some circumstances be taken away or transferred to another court. The State has the right to pray a jury trial which, when demanded, as here, has the effect of divesting the People’s Court of any further jurisdiction. Jackson v. State, 223 Md. 105, 108-109, 163 A. 2d 120 (1960).

Appellant also complains that when the People’s Court was deprived of jurisdiction by the State’s demand for a jury trial his failure to receive a preliminary hearing was constitutional error and a violation of his right to due process of law. There is no merit to this contention. Article 52, § 13, Code, contemplates a full hearing before the People’s Court for Anne Arundel County or no hearing at all in that court if either side elects a jury trial. When a jury trial is prayed, either by the accused or by the State, the People’s Court has no jurisdiction to hold a preliminary hearing. Smith v. State, 210 Md. 440, 448, 124 A. 2d 839 (1956).

Moreover, a preliminary hearing, relating as it does only tO' the legality of an accused’s detention before his indictment, is-not a necessary proceeding in obtaining a valid conviction. Ferrell v. Warden, 241 Md. 432, 436, 216 A. 2d 740 (1966). The failure to hold a preliminary hearing does not vitiate a conviction otherwise fairly had and there is no constitutional right thereto, in the absence of specific provision therefor. Kardy v. Shook, 237 Md. 524, 543, 207 A. 2d 83 (1965).

Appellant further complains of constitutional error for lack of information or indictment. We find no merit in this contention. Article 21 of the Declaration of Rights, Constitution of Maryland, provides that in all criminal prosecutions the accused has the right to be informed of the charges against him. Here the appellant was charged in a State warrant, in which appear the charges against him and which is a part of the record in this appeal. The appellant’s constitutional right to be informed of the accusation against him may be satisfied in a proper case by a State warrant as well as by an indictment or information. Lank v. State, 219 Md. 433, 436, 149 A. 2d 367 (1959); Gray v. State, 216 Md. 410, 415, 140 A. 2d 643 (1958).

A further answer to appellant’s contention is that Maryland Rule 702, defining an “Indictment,” provides that, “Indictment” shall include an indictment, a criminal information, and a warrant issued by a justice of the peace where a jury trial was prayed before a trial magistrate or an appeal has been taken from a trial magistrate.” (Emphasis supplied.).

II

Appellant contends that he was deprived of the effective assistance of counsel. This contention is based upon a remark made by the trial judge while Lieutenant Kinsey was testifying on behalf of the State. After the Lieutenant testified as to his training with firearms, the State submitted he was qualified and the court told the State’s Attorney to ask him the question. The appellant objected and the court overruled the objection. Appellant’s attorney then asked the court: “Qualified as to what, your Honor ? I would like to know.” The court replied: “Qualified in the knowledge of what a .32 caliber revolver would do under those circumstances. And don’t ask the court questions. I will ask you.” Appellant argues that this amounted to a deprival of the appellant’s right to be represented by counsel as guaranteed by Article 21 of the Declaration of Rights and the Sixth Amendment to the Constitution of the United States.

There is no merit to this contention. It may be pointed out that the appellant did not object to the form or substance of the trial court’s remark or anything else that might support a claim of prejudice. Accordingly, there is nothing for this court to review. This Court on appeal will not ordinarily decide an issue which does not appear from the record to have been raised and decided by the lower court. Maryland Rule 1085. See also Day v. State, 2 Md. App. 334, 234 A. 2d 894 (1967), where the propriety of the trial judge’s remarks were held not before the court on appeal where the appellant failed to object below. Moreover, the appellant was not precluded from cross-examination of the witness on his qualification as a firearms expert, the determination of which was primarily in the discretion of the trial court. Sherrod v. State, 1 Md. App. 433, 230 A. 2d 679 (1967).

Ill

Appellant’s third contention is that there was no legally sufficient evidence to sustain his conviction of assault.

In a non-jury trial this Court will review the case, both upon the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous, and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. McFadden v. State, 1 Md. App. 511, 231 A. 2d 910 (1967); Stewart v. State, 1 Md. App. 309, 229 A. 2d 727 (1967); Grice v. State, 2 Md. App. 482, 235 A. 2d 316 (1967); Maryland Rule 1086.

There is ample evidence, if believed by the trier of the facts,, to support appellant’s conviction. Lieutenant Kinsey and the two other police officers in their testimony fully described the assault made by the appellant with a loaded .32 caliber revolver upon Lieutenant Kinsey at the time he was stopped for questioning. The trial court is not required to believe the exculpatory testimony of the accused. Tingler and Wright v. State, 1 Md. App. 389, 230 A. 2d 375; Spencer v. State, 1 Md. App. 264, 229 A. 2d 151 (1967). The credibility of the witnesses, was for the trier of the facts to determine. Cooper v. State, 1 Md. App. 190, 228 A. 2d 840 (1967); Carrington v. State, 1 Md. App. 353, 230 A. 2d 112 (1967).

IV

The appellant’s final contention is that the sentence imposed by the lower court was an illegal sentence. While this contention has been dealt with in other parts of this opinion, and found to be without merit, it may be noted that there is no. statutory limitation on the length of sentence that a criminal court may impose for assault or assault and battery. Yantz v. Warden, supra; Lloyd v. State, supra; Heath v. State, 198 Md. 455, 85 A. 2d 43 (1952). Furthermore, we do not find the sentence cruel or unusual in the constitutional sense. See Washington and Walker v. State, 2 Md. App. 633, 236 A. 2d 32 (1967).

Judgment affirmed.

      . Section 25D, Art. 53, Code, vests the powers of the trial magistrates in the judges of the People’s Court for Anne Arundel County.