text:
    ARTHUR EDWARD STRAWDERMAN v. STATE OF MARYLAND
    [No. 207,
    September Term, 1967.]

      Decided August 14, 1968.

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

      James A. Bhrhart for appellant.

      Bred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Howard B. Cardin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty at a court trial in the Criminal Court of Baltimore of robbery with a deadly weapon and assault. He was sentenced to imprisonment for a term of 15 years on the robbery conviction and for a term of 2 years on the assault conviction to run consecutively with the robbery sentence. His appeal from the judgments requires a construction of the provisions of Chapter 709, Acts of 1967 which are codified in Md. Code (1968 Repl. Vol.) as Art. 59, §§ 7-12, title — “Eunatics and Insane,” subtitle — “Insanity as a Defense in Criminal Cases.” Chapter 709 repealed former §§ 7-12 of Art. 59 and enacted new §§ 7-12 in lieu thereof. By § 2 of Chapter 709 its provisions were made applicable to all cases tried or scheduled for trial on and after 1 June 1967 and we have held that they were not to be retroactively applied. League v. State, 1 Md. App. 681, 685. As the appellant’s case was tried on 20 June 1967, the provisions of Chapter 709 were applicable to it. Hereinafter §§ 7-12 of Art. 59 as were in effect prior to 1 June 1967 will be referred to as the “old” sections and as are in effect on and after that date as the “new” sections.

COMPETENCY TO STAND TRIAL

The Test

Under new § 7 the test for competency of an accused to stand trial is “whether such person is unable to understand the nature or the object of the proceeding against him or to assist in his defense.”

The Prove dure

By new § 7 the lower court shall determine whether the accused is competent to stand trial “upon testimony and evidence presented on the record,” whenever prior to or during trial, the accused alleges he is so incompetent or it so appears to the court. The court for good cause shown and after affording the accused an opportunity to be heard on his own behalf or through counsel may pass an order requesting an examination of the accused’s competency to stand trial by the Department of Mental Hygiene and a full report of the findings shall be forwarded to the court, the State’s Attorney and to counsel for the defendant. “If the court after receiving testimony and evidence determines that the defendant is competent to stand trial within the meaning of this section (new § 7), the trial shall commence as soon as practicable or, if already commenced, shall continue. The court may in its discretion at any time during the trial and until the verdict is rendered, reconsider the question of competency of the defendant to stand trial as otherwise provided in this section.”

RESPONSIBILITY FOR CRIMINAL CONDUCT The Test

The test of responsibility for criminal conduct is set forth in new § 9 (a) ;

“A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

This, in every substantial detail and almost word for word, is the American Law Institute test contained in § 4.01 of the Model Penal Code. It replaces, in Maryland, the test of responsibility for criminal conduct previously followed — that enuncited in M’Naghten Case, 8 Eng. Rep. 718 (1843) the ability of the accused to distinguish between right and wrong and to understand the nature and consequences of his acts as. applied to himself. Bergin v. State, 1 Md. App. 74.

The Procedure

The procedure for raising the defense that an accused was not responsible for his criminal conduct is provided in new § 9(b) :

“When it is desired to interpose the defense of insanity on behalf of one charged with the commission of a crime the defendant or his counsel shall at the time of pleading to the warrant, indictment or information unless the court for good cause shown shall allow a later plea, file a plea in writing in addition to the plea or pleas otherwise required or permitted by law, alleging that the defendant was insane at time of the commission of the alleged crime. * * * At the trial of any case where there has been theretofore filed a plea of insanity at the time of the commission of the crime, the court shall direct the jury to render a special verdict on the sanity of. the defendant at the time of the alleged crime. No such verdict as to insanity of the defendant at the time of the alleged crime shall be directed or accepted unless a plea in writing alleging that the defendant was insane at the time of the commission of the alleged crime shall have been filed by the defendant or his counsel.”

It also provides that when such plea of insanity has been entered the court “* * * shall have full power and authority to order an examination of the mental condition of such person by the Department of Mental Hygiene.”

We think that Chapter 709 of the Acts of 1967 establishes a clearly different test for competency to stand trial from that which it establishes for responsibility for criminal conduct and that the procedure for determining competency to stand trial is clearly different from that to determine responsibility for criminal conduct. The sole issue of competency to stand trial is not raised by a plea and its determination is a matter resting exclusively in the court. Of course, in a jury trial, evidence with regard to it should be received out of the presence of the jury. On the other hand, the defense that the accused was not responsible for his criminal conduct must be raised by a plea alleging that he was insane at the time of the commission of the alleged crime. The plea shall be filed at the time of pleading to the warrant, indictment or information, unless the court for good cause shown allows a later plea. It shall be made in writing.

Under the law as it existed prior to 1 June 1967 questions as to which party — the prosecution or the defendant — had the burden of proof on the issue of insanity and as to which degree of proof — beyond a reasonable doubt or preponderance of the evidence — should be applied were first resolved in Bradford v. State, 234 Md. 505. In Jenkins v. State, 238 Md. 451, the Court stated that the holdings in Bradford were:

“(1) a man is presumed to have been sane and responsible for his acts at the time he committed a crime until there is adduced proof of his inability ‘to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself’ (the M’Naghten rule) sufficient to raise a doubt as to his sanity as defined in the minds of reasonable men (‘Evidence of some undefined mental disorder or instability is insufficient proof to overcome the pregumption of sanity’), and (2) when there has been offered proof of insanity so defined sufficient to overcome the initial presumption of the sanity of the acoused the State must prove sanity, as well as the other elements of the offense charged beyond a reasonable! doubt.”

This Court applied the rules of law enunciated in Bradford, where there was a court trial, to a jury trial in McCracken v. State, 2 Md. App. 716. We said at 720:

“[W]e think it clear that it is now established that the trial court should determine as a preliminary matter of law whether there has been offered evidence of insanity (under the M’Naghten rule as to cases tried prior to June 1, 1967 or under the provisions of chapter 709 of the Acts of 1967 as to cases tried on or after June 1, 1967) sufficient, if believed, to raise the question in the minds of reasonable men whether the defendant is or is not insane. Only when the court finds that there is such sufficient evidence are the issues of insanity at the time of the commission of the offense and at the time of the trial to be submitted to the jury. We think it logically follows that it is preferable that such evidence be adduced out of the presence of the jury to avoid any possible prejudice and to obviate the necessity, when the evidence is found to be insufficient, of instructing the jury that the issue is not before them and that they are to disregard such evidence in their deliberations of whether the State has proved the commission of the crime beyond a reasonable doubt. Of course, if the trial court finds the evidence to be sufficient, it should then be introduced before the jury with the proper instructions.”

See also White v. State, 3 Md. App. 167, 171. Inasmuch as. insanity, as defined in new § 9(a), is not the test in determining competency to stand trial under new § 7, the rationales, of Bradford and McCracken are not apposite to such determination. With regard to competency to stand trial under new § 7, we think that the court, in whom the final determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceeding against him and to assist in his defense. But we think that the rationales of Bradford and McCracken, although not decided under Chapter 709, Acts of 1967, are applicable to. a determination of insanity as defined in new § 9(a). Therefore the rule as to cases tried on or after 1 June 1967 is:

(1) a man is presumed to have been responsible for criminal conduct and sane at the time of such conduct until, after the filing of a proper plea, there is adduced proof that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental disease or defect (“mental disease or defect” do not include an abnormality manifested only by repeated or otherwise anti-social conduct) sufficient to raise a doubt as to his sanity as defined in the minds of reasonable men, and (2) when there has been offered proof of insanity so defined sufficient to overcome the initial presumption of sanity of the accused the State must prove sanity, as well as the other elements of the offense, charged beyond a reasonable doubt.

So when a plea has been filed in writing alleging that the accused was insane at the time of the commission of the alleged crime, the court should determine preliminarily whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men. If it finds that it is not, the State has no further burden with respect thereto and, in a jury trial, the question is not submitted to the jury. If the court finds that the proof adduced was sufficient to surmount the threshold question of doubt as to the accused’s responsibility, the State has the burden of convincing the trier of facts that the accused was sane, and, in a jury trial, evidence on the issue should then be introduced before the jury with proper instructions.

The indictments under which the appellant was charged were filed on 10 April 1967. On 18 April, when he was arraigned, no plea was made but a pre-trial medical examination was ordered at the request of appellant’s counsel. The examination was made by the Medical Service to the Supreme Bench and the report was submitted under date of 5 June. The case came on for trial on 20 June. Counsel for the appellant reviewed the report of examination and the appellant, through his counsel, orally pleaded to each indictment as follows: “The plea is not guilty by reason of insanity.” He elected a court trial. The defense offered in evidence only the Summary and Impression of the Medical Officer, dated 5 June 1967 which accompanied the full report of examination made and produced no other evidence on the issue. The court found the appellant to be sane and competent to stand trial. A plea of not guilty to each indictment was then entered and a trial by the court being elected, the cases proceeded to trial.

On appeal the appellant contends that the trial court erred “in its refusal to accept a plea of not guilty by reason of insanity.” He urges that it was incumbent upon the court, at his request, to order a further examination of his mental condition by the Department of Mental Hygiene as such part of the report of examination made by the Medical Officer of the Medical Service to the Supreme Bench which he offered in evidence did “not satisfactorily comply with the insanity law of the State of Maryland whereby it must be shown that the defendant, at the time of the commission of an offense did not have capacity and reason sufficient to enable him to distinguish between right and wrong and understand the nature and consequences of his acts.”

The record is clear that the trial court did not refuse to accept a plea of not guilty by reason of insanity. It accepted it, even though it was not in writing, considered it and made a finding that the appellant was sane. We feel it clear from the remarks of the trial judge, who, it is apparent from the record, made his finding under new §§ 7-12, that the finding went to the sanity of the appellant at the time of the commission of the alleged offense. The court also found that the appellant was competent to stand trial, although we do not think that this Issue was raised or if raised that it was pursued. Counsel said in his argument to the trial court, “Now, the only thing that at least I, as counsel for the Defendant am not sure of is whether this man was insane at the time of the offense.” It is correct that the report of the Medical Officer received in evidence did not state that the appellant was sane under the M’Naghten test, to which we assume the appellant refers in his brief, but that was not the test applicable to him. The report before the court contained the following:

“This patient had a clinical psychiatric examination and psychological testing done at this office. In addition, reports from Crownsville State Hospital and Meadowbrook New York General Hospital were reviewed. The patient has no history of a psychotic illness. The diagnostic impression is sociopathic personality disturbance with strong anti-social reaction with underlying schizophrenic tendencies.
Under the Maryland Law this patient has to be regarded a responsible agent. This patient appears capable of assisting counsel in his own defense, but he is very negativistic, uncooperative, and unreliable, and because of this he may try to cause difficulties.”

There was no other evidence adduced on the issue, although the appellant was not denied an opportunity to be heard on his own behalf. We agree that the evidence was not sufficient to raise a doubt in the minds of reasonable men as to the sanity, as defined, of the accused. The report, dated subsequent to 1 June 1967, showed that the appellant had to be regarded as a responsible agent “under the Maryland Law.” Therefore, he did not lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental disease or defects and he was sane under new § 9(a). While his history showed repeated criminal or otherwise anti-social conduct, abnormality so manifested, without more, is not included in the terms “mental disease or defect.” As this evidence was not sufficient to surmount the threshold question of the appellant’s responsibility and as there was no other evidence adduced, there was no further burden on the prosecution. And we cannot say that the court was clearly erroneous in finding that the appellant was competent to stand trial upon evidence on the record. It could properly find from the report that he was able to understand the nature or object of the proceeding against him and the report stated that he appeared “capable of assisting counsel in his own defense.” In the circumstances the trial court did not abuse its discretion in refusing to order a further examination of the appellant by the Department of Mental Hygiene. We find no error requiring reversal in the procedure followed by the trial court, in its rulings or in its findings.

REMOVAL

The appellant also contends that the trial court erred in refusing to grant “a change of venue.” Prior to trial counsel for the appellant made an oral request for removal of the case for trial to some other court. The appellant did not comply with Md. Rule, 542a, made applicable to criminal proceedings by rule 738a, in that he did not suggest in writing under his oath that he could not have a fair and impartial trial in the court in which his trial was pending. In any event, as the offenses of which he was charged were not punishable by death, it was necessary that he make it satisfactorily appear to the court that such a suggestion was true or that there was reasonable ground for it. Md. Rule, 738b. He did not do so. Counsel gave as the ground for the request that on 22 March several photographs had appeared in the local newspapers. But no evidence was offered on the matter and the appellant made no showing that he had been prejudiced. Benton v. State, 1 Md. App. 647. The court said it had never heard of the case before and had no knowledge of the alleged facts reported in the press. It stated that if a court trial was desired the motion was denied; if a jury trial was requested the matter would be explored on voir dire. The appellant elected a court trial. We find no abuse of discretion by the trial court in refusing the request for a change of venue. See McLaughlin v. State, 3 Md. App. 515.

Judgments affirmed.

      . The procedure in the event the accused is found not competent to stand trial is set forth in new § 8.

      . In United States v. Chandler, 393 F. 2d 920, the United States Court of Appeals for the Fourth Circuit declared that the American Law Institute test strikes the right balance between cognition, on which M’Naghten was grounded, and volition, without creating the misunderstandings resulting from Durham (214 F. 2d 862). “[I]t demands an unrestricted inquiry into the whole personality of a defendant who surmounts the threshold question of doubt of his responsibility. * * * Its verbiage is understandable by psychiatrists; it imposes no limitation upon their testimony, and yet, to a substantial extent, it avoids a diagnostic approach and leaves the jury free to make its findings in terms of a standard which society prescribes and juries may apply.” But the court warned: “There should be room for adaption to the exigencies of particular cases and still larger room for constructive innovation and improvement.”

      . Md. Rule, 720 provides: “An accused may plead not guilty, not guilty by reason of insanity as provided by statute, guilty, or with the consent of the court, nolo contendere.”

      . The disposition of a defendant found not guilty by reason of insanity at the time of the commission of the crime is provided by new §§ 11 and 12.

      . Under old § 7 the accused could plead not guilty by reason of insanity at the time of the commission of the alleged crime and/or not guilty by reason of insanity at the time of the trial. Each was determined under the standard of the M’Naghten rule. Rowe v. State, 334 Md. 395. New § 10, relating to the time of forwarding the Department of Mental Hygiene’s reports as to insanity at the time of the commission of the offense and competency to stand trial, recognizes that the issue of competency to stand trial is not raised by plea. However when a plea of insanity at the time of the commission of the offense is filed, the report shall also relate to competency to stand trial.

      . In a jury trial the sanction for failure to file the plea in writing is specifically provided by new § 9(b). In such trial, when such a plea is filed in writing, the court shall direct the jury to render a special verdict on the sanity of the defendant at the time of the alleged crime. But no such verdict “shall be directed or accepted” unless the plea in writing was filed. Compare old § 7. No sanction for failure to file the plea in writing is provided in a court trial, but the statute clearly states that the defendant or his counsel “ * * * shall * * * file a plea in writing in addition to the plea or pleas otherwise required by law, alleging that the defendant was insane at the time of the commission of the alleged crime.” We think it apparent that this language applies to both trial by the court and trial by jury.

      . In a jury trial such proof should be presented out of the presence of the jury.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RICHARD LEE PRICE v. STATE OF MARYLAND
    [No. 211,
    September Term, 1967.]

      Decided August 14, 1968.

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

      Irving B. Klitzner for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Barrett Breed-lander, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

On June 29, 1967 appellant was convicted of conspiracy to rob by Judge Thomas J. Kenney, sitting without a jury in the Criminal Court of Baltimore, and sentenced to a term of four years under the jurisdiction of the Department of Correction, to be served concurrently with a sentence he was already serving. Appellant’s sole contention on appeal is that the evidence was insufficient to convict him.

There was evidence adduced at the trial showing that Powell Stanley Thompson met with Robert Huemmer and George Huff at the Little House Bar on January 6, 1967 and “talked about making money”; that Huemmer showed him a .32 caliber revolver ; that approximately a week later Huemmer, Huff, Thompson and appellant met at the Little House Bar; that Huemmer stated that he had “a job lined up,” a fuel oil company on Pulaski Highway; and that “it was just about time to pull this job”; that the men rode up Pulaski Highway and Huemmer pointed out the Deinlien Oil Company as the place to be held up; that the robbery was originally planned to take place on January 19, 1967, Huff and Thompson being designated to enter the premises and bind and blindfold Mr. Deinlien, with Huemmer and appellant entering later to take the money from the safe; that they proceeded to the Deinlien Oil Company on January 19 and, as Huff and Thompson started up the stairs, Huff observed the lady next door looking out her window; that Huff became apprehensive about being identified and they left the scene; that the defendants all met that evening and agreed to commit the hold up the next day; that on January 20, 1967 Huemmer stated that Huff would not be present because he was ill, and that Thompson would have to enter Deinlien’s alone; that after appellant and Huemmer reconnoitered the area, Thompson entered the premises at approximately 3:10 p.m. and told Mr. Deinlien that this was “supposed to be a hold up”; that “there are two other fellows that are coming in behind me”; and that he, Thompson, had a pistol in his left hand coat pocket.

The evidence further showed that Sergeant William J. Hirsch of the Eastern District had been forewarned that a holdup might take place, and was waiting at the Deinlien Oil Company when Thompson entered. Sergeant Hirsch placed Thompson under arrest. Approximately five minutes later Sergeant Hirsch, having been informed by Thompson that Huemmer and appellant would be along shortly, observed Huemmer drive to the front of the Deinlien Oil Company in a “1965 Olds” and then speed off. He could not identify appellant as the other occupant of the car. It was later learned that the car observed by Sergeant Hirsch was registered to Thompson’s wife.

Detective Furrie Cousins of the Baltimore City Police Department was also a party to the stake-out. After receiving a radio instruction to be on the lookout for two white males “to come in off of Bowley’s Lane” in a “1965 Olds,” he proceeded towards Deinlien’s where he observed Huemmer driving the aforementioned car, and appellant seated on the passenger side. To prevent them from leaving the scene, Detective Cousins rammed their car, but they nevertheless managed to flee the area.

David C. Faulkner, an F.B.I. agent, testified as to a conversation he had with Thompson on approximately January 13, 1967. Thompson told him at that time that he had information that “some individuals were planning a robbery of a * * * fuel oil company near Frankford Avenue and Pulaski Highway in Baltimore,” and that appellant, Huemmer, and •someone known as “Bo” (later identified as Huff) would be the other participants in the robbery. Faulkner conveyed this information to the Baltimore City Police, which resulted in the stake-out and the eventual apprehension of appellant, Huemmer, Thompson and Huff.

Appellant’s contention that the evidence was insufficient to convict is grounded on the argument that the State’s only proof of the existence of the conspiracy to rob came in through the testimony of Thompson, that this testimony was “so contradictory as to be ridiculous,” that Judge Kenney expressly stated that he did not believe Thompson’s testimony, and that in any event, as Thompson was an accomplice, his testimony was not legally sufficient to convict since it was uncorroborated.

In Maryland, as generally, the gist of a conspiracy is the entering into of the illegal scheme or design, and once this occurs, the crime is complete without the doing of an overt act. Greenwald v. State, 221 Md. 235. The testimony of an accomplice is clearly admissible to prove a conspiracy, Foster v. State, 230 Md. 256, and the conspiracy may also be shown by circumstantial evidence from which an inference of common design may be drawn, it not being vital to demonstrate that the conspirators met and agreed in terms to a set design and to pursue it by common means. See Hill v. State, 231 Md. 458; Seidman v. State, 230 Md. 305.

On the record before us, it is plain that Thompson’s testimony established the existence of a conspiratorial plan to rob the Deinlien Oil Company, the appellant being one of four participants in the plan. We think Thompson’s testimony was corroborated by the fact that appellant and Huemmer were observed at the scene of the intended robbery on the day fixed by the conspirators for its commission and the fact that appellant fled the scene when the police attempted to apprehend him lends to establish his participation in the planned robbery. While it is true that Judge Kenney voiced some concern as to the credibility of Thompson’s testimony, we think it manifest that in the final analysis he found Thompson’s testimony relative to the existence of the conspiracy to be sufficiently credible to justify conviction. We cannot, therefore, find that the lower court’s judgment was clearly erroneous under Maryland Rule 1086

Judgnient affirni~ed.

      . Robert L,. Huemmer, a co-defendant, was convicted under the same indictment and received a similar sentence. He did not appeal his conviction. George J. Huff, another co-defendant, was found not guilty.

      . Thompson was not indicted for the conspiracy, although he was charged individually with attempted armed robbery. It is not entirely clear from the record just why Thompson turned informer, or why he decided to participate in the robbery.


author: Morton, J.,

text:
    MAXINE ROEDER v. STATE OF MARYLAND
    [No. 322,
    September Term, 1967.]

      Decided August 14, 1968.

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

      Donald S. Hurwits for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and James P. Garrity, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, Maxine Roeder, was tried in the Criminal Court of Baltimore by Judge Anselm Sodaro, sitting without a jury, and was convicted of using unlawful means to cause and procure a miscarriage and abortion.

Appellant’s sole contention raised on this appeal is that the trial court erred in finding guilt absent proof of an essential element in the indictment.

The evidence adduced at the trial revealed that the prosecuting witness believed herself pregnant when “1 had skipped my period and I was sick in the morning and my body was swollen.” As a result thereof, she visited a local bar and contacted another girl who, in turn, led her to the appellant. Subsequent thereto, the appellant and prosecuting witness met at the contact’s apartment where the appellant directed her to remove her clothing and to lie on the bed. Asking if she would get sick, the prosecuting witness was assured that she would be “all right.” The appellant then placed clamps upon and inserted' tubes into the prosecuting witness’ vagina, thereafter inserting a cold liquid. The process took some fifteen minutes. A small amount of blood was passed and she was told to “[g]o home; you’ll be all right.” Three hundred dollars was paid for the service the appellant rendered.

Two days later, the prosecuting witness aborted and started to hemorrhage, which continued for five days. Two days after aborting and the start of the hemorrhaging, she was admitted to the Greater Baltimore Medical Center.

The thrust of the appellant’s argument is that the State failed to prove that the prosecuting witness was pregnant “beyond the reasonable doubt and to a moral certainty,” at the time of the alleged crime, and absent this prerequisite element of proof, the conviction cannot stand.

As was so lucidly expressed by Chief Judge Alvey in his dissenting opinion in Lamb v. State, 67 Md. 524 at 537 (1887), quoting from Mills v. Commonwealth, 13 Pa. St. 631, 633:

“It is a flagrant crime, at common law, to attempt to procure the miscarriage or abortion of a woman, because it interferes with and violates the mysteries of nature, in that process by which the human race is propagated and continued. It is a crime against nature, which obstructs the fountain of life, and therefore it is punished.”

The original precursor of the controlling statute was initially construed in Lamb v. State, supra. That opinion by Judge Bryan observed in effect that the statute of 1868 by proscribing the enumerated activities at any period of her pregnancy changed the common law concept that since “the life of an infant was not supposed to begin until it stirred in the mother’s womb, it was not regarded as a criminal offense to commit abortion in the early stages of pregnancy.”

Except for very minor variance, the statute of 1868 is the same as the instant statute.

Article 27, § 3 of the Annotated Code of Maryland (1967 Repl. Vol.) states that:

“Any person who shall knowingly advertise, print, publish, distribute or circulate, or knowingly cause to be advertised, printed, published, distributed or circulated, any pamphlet, printed paper, book, newspaper notice, advertisement or reference containing words or language giving or conveying any notice, hint or reference to any person, or to the name of any person, real or fictitious, from whom, or to any place, house, shop, or office, where any poison, drug, mixture, preparation, medicine or noxious thing, or any instrument or means whatever for the purpose of producing abortion, can be procured, or who shall knowingly sell, or cause to be sold any such poison, drug, mixture, preparation, medicine or noxious thing or instrument of any kind whatever; or from whom any advice, direction, information or knowledge may be obtained for the purpose of causing the miscarriage or abortion of any woman pregnant with child, at any period of her pregnancy, or shall knowingly sell or cause to be sold any medicine, or who shall knowingly use or cause to be used any means whatsoever for that purpose, shall be punished by imprisonment * * *” [Emphasis added].

As stated in 1 Maryland Law Encyclopedia at page 29 :

“* * * ‘abortion’ commonly describes an offense, carrying a meaning well established in jurisprudence. By the use of the word is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb, or that a premature birth thereof be caused before it is capable of sustaining life.”

The nature of the activity legally proscribed by the aforenoted statute is clearly any specified effort knowingly directed at the causation or procurement of a miscarriage or abortion of any woman, pregnant with child at any period of her pregnancy, excluding that legally condoned exercise by a medical practitioner.

The element of pregnancy is requisite to the successful prosecution of the crime charged and must be proved beyond a reasonable doubt.

“Pregnancy of the victim may be established by circumstantial evidence. Absolute certainty of pregnancy under a statute making pregnancy an essential element in the offense is not exact; all the law requires is such reasonable certainty as shall silence all reasonable doubt.” 1 C. J. S., Abortion § 34 at p. 388. The instant statute proscribes any of the enumerated acts upon a pregnant woman “at any period of her pregnancy,” thus not limiting such proscription to any particular stage of the pregnancy and thereby dispelling the oft stressed common law prerequisite that the woman be “quick with child,” meaning having felt the child move within her. Therefore, pregnancy and life are simultaneous with the act of conception and any, actual or attempted, interruption with the natural life cycle thereafter stands violative of the instant statute. See Bonfield v. Blackmore, 90 N. J. Law 216, 100 Atl. 160, 161 (1917).

In Tosco v. State, 223 Md. 503, 165 A. 2d 456, 460 (1960), the Court of Appeals, speaking through Judge Prescott (later Chief Judge), stated at page 510-511:

“Proof of guilt beyond all doubt has never been required, even in the most serious criminal cases.
‘The trier of facts in a criminal case is enjoined by law to give due force to the presumption of innocence, and then to proceed cautiously in weighing the evidence; but he is not commanded to be naive and to believe without scrutiny every glib suggestion or farfetched fairy tale whether emanating from State or defense. An indispensable ingredient in judgment, in court as well as out of it, is a modicum of common sense.’ Berry v. State, 202 Md. 62, 67, 95 A. 2d 319.
‘To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous, coincidence consistent with innocence be negatived.’ Hayette v. State, 199 Md. 140, 144, 85 A. 2d 790.”

See Pettis v. State, 2 Md. App. 651, 653, 236 A. 2d 429, 430 (1968); Young v. State, 4 Md App. 286, 299, 242 A. 2d 562, 569 (1968);

Here, the prosecuting witness testified as to her physical condition and symptoms, which were compatible with pregnancy and to her belief that she was pregnant. She was so secure in her belief that she sought out the appellant and endured the aforedescribed treatment. Her testimony further revealed that she aborted two- days after appellant treated her. This testimony was sufficient to warrant the court’s finding of pregnancy beyond a reasonable doubt. In addition thereto, the medical record, which was admitted below, revealed the “pathologically germane” information that:

“On 3/4/67 she was taken to the Operating Room where a D and C for completion of septic abortion was performed, the pathology of which was returned as inflamed and necrotic placental fragments.”

The applicable test in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidénce, if- believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Morris v. State, 4 Md. App. 328, 331, 242 A. 2d 582, 584 (1968); Brown v. State, 4 Md. App. 261, 268, 242 A. 2d 570, 574 (1968); Montague v. State, 3 Md. App. 66, 72, 237 A. 2d 816, 820 (1968).

Furthermore, in non-jury trials the weight of the evidence and the credibility of the witnesses rests within the determination of the trial judge. Morris v. State, supra, 331; Brown v. State, supra, 268-269; McRae v. State, 3 Md. App. 388, 393, 239 A. 2d 607, 610 (1968).

Presented the instant facts, it would unduly stretch our credulity to interpret the appellant’s act of affixing clamps to and inserting tubing into the vagina of the prosecuting witness as being directed at any purpose other than that prohibited by the statute.

This Court cannot reverse a judgment of the lower court unless it is shown that there is no legally sufficient evidence or proper inference therefrom, from which that court could find the accused guilty beyond a reasonable doubt. Morris v. State, supra, 333; Brown v. State, supra, 269. Such a prerequisite showing was not established in this case and we cannot say that the lower court was clearly erroneous. Maryland Rule 1086; Morris v. State, supra, 334; Brown v. State, supra, 269.

Judgment affirmed.

      . D and C — dilatation of the cervix and curettage (scraping) of the cavity of the uterus: used as a diagnostic and therapeutic procedure in obstetrics and -gynecology. See Blackiston’s New Gould Medical Dictionary, Second Edition.

      . Dead Cells — part of the organ situated on the. wall of the uterus from which the embryo is attached; it is developed about the third month of gestation. See Blackiston’s, supra.


text:
    JOSEPH ANTHONY TOMOLILLO v. STATE OF MARYLAND
    [No. 332,
    September Term, 1967.]

      Decided August 14, 1968.

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

      Norman N. Yankellow, with whom was /. Frank Boyd on the brief, for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Thomas A. Rymer, State's Attorney for Calvert County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant was found guilty by a jury in the Circuit Court for Calvert County of grand larceny and sentenced to imprisonment for a term of ten years. After a hearing on an application for review of sentence the sentence was vacated and he was resentenced to imprisonment for a term of four years.

The appellant claims that his arrest was illegal and that, therefore, a shirt and jacket were improperly admitted in evidence against him as obtained by an unreasonable seizure incident to the arrest.

George Griffin testified that about 4:00' A.M. on 6 May 1967 he was awakened by the sound of a car starting. His Pontiac automobile, with the keys in the ignition, was parked in the driveway on his premises and, looking out the window, he saw the car come out of the driveway and “almost hit the garage across the street.” He hollered and observed that the driver was a man with a “thin face.” The car raced off. He called the police and gave them a description of the car. About 20 minutes later he was told the car had been found “over to Kline’s Store” about a mile from his house. He went there and “all over the sun visor, both sides of the door was soot. It was all over the sun visor and the door and everywhere, there was soot all over the dash board, this soot — that I thought was from a burlap bag, because there was pieces of this coat or whatever it was.” A police officer on the scene picked up the pieces of the burnt fabric and put them in a box. A Dodge four door cab truck was also parked in his driveway and soot and the same burnt fabric was in the truck. A flashlight had been taken from the truck. The ignition keys had not been left in the truck. The soot and burnt fabric had not been in either the truck or car when they had been parked in the driveway several hours earlier. The car was valued at $3500 when it was purchased in December 1964.

Mrs. Jean McGahey who lived across the street and two houses from Griffin owned a truck which was parked in front of her house. About 8:30 A.M. on 6 May she was awakened by a neighbor who said her truck was on fire. It was full of smoke. The back of the seat was smoldering and a neighbor had to take the seat out and turn the hose on it to put out the fire. Two flashlights were in the truck and one of them was the one taken from Griffin’s truck.

Trooper J. L. Cawthorne of the Maryland State Police tes-r tified that he received a radio message about 4:31 A.M. on 6 May that a 1964 Pontiac car had been taken from the residence of Griffin. He drove toward the Griffin residence and as he passed Kline’s Store a police cruiser was stopped by a 1964 Pontiac. The engine of the Pontiac was warm and inside were pieces of burnt fabric and smudges were on the seat, headliner and sun visor. As he was collecting pieces of the burned material, he observed “a dark figure,” wearing a dark coat, run across the road about 250 feet away into a school play area. The officer went to the area but found no one. The pieces of burnt material were later taken to the F.B.I. Laboratory. The trooper and other police officers started “a general patrol and canvas” of the area. About 25 minutes later Cawthorne observed “the figure again” about one and a half blocks from the place where .the car was recovered, standing under a street light. It was a white male wearing a dark coat and light colored pants, “The instant he spotted my headlights” he ran down the street and then between two houses. .The officer called on the radio for help and pursued the man who ran into heavy weeds. The officer called to him to stop but the man escaped, running into the Chesapeake Beach Amusement area. .The man was “of medium height and a little on the slender side.” The police closed off the Chesapeake Beach Park area and as it got lighter checked all the buildings in the Amusement area to no avail. Cawthorne gave the description of the'man to Special Policemen who worked'in the Amusement Park — a white male, dressed in a dark jacket and-'light pants who “may have some burnt clothing on him.” Aboiit 9:30 A.M. he received a call at his home that a man was in a restaurant near the Amusement Park answering the description given and wearing a jacket with a burn in it. He went' to the restaurant and’ saw the appellant. There was a burnt hole about'4 or 5 inches in diameter in the back lower portion of his' jacket. The officer arrested him and at the jail took his jacket and shirt arid later delivered them to the F.B.I. Laboratory. The officer learned about the fire in Mrs. McGahey’s truck and took samples of the burnt fabric from it which were later delivered to the F.B.I. Laboratory. He also obtained pieces of burnt fabric from Griffin’s truck and they were later delivered to the F.B.I.

We have no difficulty in determining that the arrest was legal. At the time of the arrest the officer knew that the felony of grand larceny — the stealing of the automobile — -had been committed. He had reasonable grounds to believe that the appellant had committed it for the appellant answered the description as to build and clothing of the person he had seen and pursued near the place where the car was recovered and there was a burnt hole in the back of his jacket which could account for the burnt fabric found in the car. See Simms v. State, 4 Md. App. 160; Boone v. State, 2 Md. App. 479. The appellant urges that even if the officer had probable cause to believe a crime was committed that crime was a misdemeanor, because, he says, he was convicted of the larceny of an automobile proscribed by Md. Code (1967 Repl. Vol.), Art. 27, § 348. We think it clear that the appellant was charged and convicted under the general larceny statute, Code, supra, Art. 26, § 340. But in any event, the crime of which an accused is subsequently charged or convicted is not controlling in determining whether the arresting officer had probable cause to believe that a felony was committed. Simms v. State, supra, 167. The arrest being legal, the contention fails.

A special agent of the F.B.L, an expert in microscopic comparison and identification of hairs and fibres, textile materials and related types of evidence, to whom the jacket and shirt and samples of burnt fabric were delivered, testified that it was determined by both the Sodic Sodium test and microscopic examination that a fragment of partially charred fabric taken from the stolen car (State’s Exhibit No. 1) was a piece of “plainly woven synthetic fabric, composed of black viscose mild tone fibres. A similar type examination was conducted with respect to the fibres composing the jacket and the fibres composing the fabric of the shirt and determined that the fibres composing the shirt was just the same microscopic characteristics, also the fabric composing the shirt exhibited the same type of weave as the fragments in State’s Exhibit No. 1 * * * The cellulosic test checked out positive, to say the fibres in the shirt were identified as being the viscose as were the fibresin State’s Exhibit No. 1.” Also the color was compared by means of a comparison microscope. The conclusion of the witness, based on the results of the tests, was that “the fabric contained in State’s Exhibit No. 1 could have originated from the shirt.” On cross-examination he said that he could not say that the “piece of partially charred fabric specifically originated from this shirt. I can merely state that it could have.” But the fabrics were “identical * * * With respect to their microscopic and chemical characteristics and also to the weave pattern, they are identical.”

The appellant contends that the testimony of the expert “did no more than point out the possibility” that the burned material taken from the stolen automobile came from appellant’s shirt and that it was therefore inadmissible. The trial court is vested with sound discretion relating to the reception or rejection of evidence, Koprivich v. State, 1 Md. App. 147, and we find no abuse of discretion here. “It is well settled that evidence need not be positively connected with the accused or the crime committed in order to render it admissible; it is admissible where there is a probability of its connection with the accused or the crime, the lack of positive identification affecting the weight of the evidence, rather than its admissibility.” Woodell v. State, 2 Md. App. 433, 436. See Stewart v. State, 1 Md. App. 309. We think that the challenged testimony, at the least, showed a probability that the burnt fabric found in the car came from the appellant’s shirt and that it was properly admissible. That the expert witness could not say that it positively came from the shirt went only to its weight, a matter for the jury.

Judgment affirmed.


text:
    JOHNNIE ERVING v. WARDEN, MARYLAND PENITENTIARY
    [No. 74,
    September Term, 1967.]

      Decided August 14, 1968.

      Before Murphy, C.J., and AndPrson, Morton, Orth, and Thompson, JJ.
   Morton, J.,

delivered the opinion of the Court.

This is an application for leave to appeal from an order filed June 27, 1967 by Judge Albert L. Sklar, sitting in the Criminal Court of Baltimore, denying relief sought in a second petition under the Uniform Post Conviction Procedure Act.

Applicant sets forth five contentions in his petition:

(1) He was denied due process in that he was denied counsel during critical stages of his case, namely, the pre- ' liminary hearing, the coroner’s inquest, and the arraignment.

(2) He was denied and deprived of witnesses in his favor.

(3) He was denied the right of a jury trial and the right to appéal.

(4) His court appointed attorney was incompetent.

(5) He was illegally and unconstitutionally indicted under the rationale of Schowgurow v. State, 240 Md. 121.

In a supplement to his petition, dated April 17, 1967, the applicant seems to allege the additional contention that :

(6) He did not receive a fair and impartial trial (under the rationale in various' cases which he cites in his petition).

. Judge Sklar summarily denied the relief sought on the grounds that since the contentions could have been raised at the applicant’s prior hearing under the Uniform Post Conviction Procedure Act, they could now be disiiiissed without a hearing or appointment of counsel under the authority of Maryland Rule BK 48. '

Petitioner was tried on August. 6, 1954 and sentenced on August 13, 1954, to life imprisonment for first degree murder. .No appeal was taken. His first petition under .the Uniform Post Conviction Procedure Act was filed on August 29, 1960 and was dismissed in an order filed on March 16, 1961 by Judge Joseph L. Carter. No application for leave to appeal from this order was filed. The present petition is his second, and was filed on November 21, 1966.

Former Maryland Rule BK 48, which was in effect at the time of Judge Sklar’s decision in this case, provides:

“Unless the court finds in a subsequent petition under the Uniform Post Conviction Procedure Act grounds for relief which could not reasonably have been raised in a previous petition under said Act, the court, after response to the petition has been filed by the State, may forthwith dismiss the petition without a hearing or appointment of counsel.”

In Jones v. Warden, 2 Md. App. 343, we pointed out that the Maryland Court of Appeals in Baldwin v. Warden, 243 Md. 326, cautioned trial judges against summarily disposing of subsequent post conviction petitions in reliance upon former Rule BK 48 since, after its adoption, its statutory precursor, Section 645H of the Act, was repealed by Chapter 442 of the Acts of 1965, effective June 1, 1965. We observed in Jones at page 347 that there was no manifest repugnancy between former Rule BK 48 and the substantive provisions of the Post Conviction Procedure Act, as amended by Chapter 442 of the Acts of 1965, and that subsequent petitions under the Act could be dismissed without a hearing or appointment of counsel where the petitioner made no adequate showing in such subsequent petition, as required by Section 645A (c), either of special circumstances to excuse the failure to raise the allegations in prior proceedings, or to rebut the presumption that he intelligently and knowingly failed to raise such allegations. But as Jones makes clear, the provisions of former Rule BK 48 could not be given independent application apart from the substantive provisions of the Act, and particularly Section 645A (c) thereof, governing the waiver of allegations not timely asserted. While it is thus for the trial judge to initially determine when allegations asserted in a subsequent petition have been waived under Section 645A (c), we have not always remanded the case for failure of the trial judge to make that determination where it is clear from the application for leave to appeal that the requisite factual allegations had not been set forth in the petition.

Assuming for the purposes of this case that applicant’s first and fifth contentions were not waived by failing to take a direct appeal or to raise them in the first post conviction petition, nevertheless we think they can afford the applicant no relief. As to the first contention, the applicant has not shown that the preliminary proceedings were critical stages of the criminal prosecution. See Arrington v. Warden, 232 Md. 672; Simms v. Warden, 234 Md. 652. In fact, petitioner entered a plea of “not guilty” at his arraignment on March 3, 1954. This has been held to demonstrate that no prejudice resulted. See Hall v. Warden, 235 Md. 675. Even if we were to assume that a guilty plea at a preliminary hearing was given, it must be shown that the State made a reference to this plea during the trial for this to afford grounds for relief. Lumpkin v. Director, 233 Md. 606; Dennis v. Warden, 243 Md. 104. No reference to such a plea is involved in this case.

Nor will applicant’s fifth contention afford him relief as it has been held that Schowgurow v. State, supra, is not to be given retroactive application. Ralph v. Warden, 245 Md. 74; Ross v. Warden, 1 Md. App. 46. Since applicant’s criminal proceeding became final in 1954, he cannot bring himself within the aegis of this ruling.

Applicant’s second and fourth contentions were presented in his first post conviction contention. After an evidentiary hearing, the court there concluded, as a matter of fact, that the applicant’s legal representation at the trial was in all respects competent; and that the alleged missing witnesses were to testify with respect to applicant’s drunkenness at the time of the crime, a status of which there was much evidence adduced at the trial on appellant’s behalf. While no application for leave to appeal was filed from the denial of applicant’s first post conviction petition, and thus these contentions cannot be deemed “finally litigated” within the meaning of Section 645A (b), we think these contentions are such as will not afford applicant any relief under his present petition.

Applicant’s third contention was not raised in his first post conviction petition and we find no special circumstances in his present petition tending to rebut the statutory presumption of waiver created by Section 645A (c).

Applicant’s sixth contention is merely a bald allegation without any showing of how the cases relied upon by the applicant apply to his original trial. As such, it will afford him no relief. Baldwin v. Warden, supra; DeVaughn v. Warden, 241 Md. 411.

Application denied.

      . Rule BK 48, as amended effective September 1, 1967, is, in its entirety, a restatement of the provisions of Section 645A (c) of the Act.


author: PpR Curiam.

text:
    RONNIE ARNOLD WILLIAMS v. DIRECTOR PATUXENT INSTITUTION
    [No. 142,
    September Term, 1967.]

      Decided August 14, 1968.

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

This is an application for leave to appeal from a denial of the applicant’s third petition for post conviction relief by Judge Robert I. H. Hammerman, sitting in the Criminal Court of Baltimore.

The applicant was convicted in the Criminal Court of Baltimore on December 11, 1964 of robbery and assault. On May 11, 1965, after his motion for a new trial was denied, he was sentenced to two concurrent ten year sentences in the Maryland House of Correction. No appeal was taken from those judgments. On August 25, 1965, the petitioner filed a petition under the Uniform Post Conviction Procedure Act, and on January 20, 1966, after a full hearing, an order denying relief and dismissing the petition was filed by Judge Shirley B. Jones. Petitioner was represented by counsel at that hearing. On February 27, 1967, petitioner filed his second petition. On June 26, 1967, an order denying relief and summarily dismissing the petition, without a hearing or appointment of counsel, was filed by Judge James K. Cullen. No application for leave to appeal from either of those orders was filed.

On July 7, 1967 the applicant filed his third petition, with supplements, and set forth the following allegations:

1) There was insufficient evidence to warrant a conviction.

2) All evidence as to the use of a gun was inadmissible because no gun was ever brought into evidence.

3) No gun was found on the person of the petitioner at the time of his arrest.

4) There was no testimony introduced that would tend to prove who fired the two shots that were heard.

5) There was no evidence to prove a robbery had been committed.

6) There was no evidence to prove an assault had been committed.

7) There was never any threat made or actual exercise of force.

8) Mr. McLean’s gun was never checked to see if and how many times it had been fired.

9) His 14th Amendment rights to due process and equal protection of the law have been violated due to illegal restraint of his person.

10) There was great disparity in testimony at the trial.

11) He was arrested without a warrant and without probable cause.

12) He was not advised of his right to counsel or his right to remain silent.

13) He was put in double jeopardy.

14) There was no probable cause for his arrest.

15) He was denied his right to appeal due to the negligence of his court-appointed attorney.

16) He was convicted under a defective indictment.

17) He was illegally transferred to Patuxent Institution.

18) His repeated requests for a delayed appeal were not acted upon.

Allegations Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 10 go to the weight and sufficiency of the evidence, which are not grounds for post conviction relief. Montgomery v. Warden, 1 Md. App. 30; Walker v. Warden, 1 Md. App. 534.

Allegation No. 9 is a bald assertion of denial of constitutional rights without specification and affords no ground for relief. Ross v. Warden, 1 Md. App. 46.

With respect to allegations No. 11 and No. 14, the applicant does not contend that any evidence obtained as the result of an unreasonable search and seizure was introduced against him at his trial. An illegal arrest does not affect the jurisdiction of the court, is not a ground for dismissing an information or indictment, and does not preclude trial and conviction for the offense. Nadolski v. State, 1 Md. App. 304. If no fruits of an arrest are received in evidence, the question of the legality of an arrest is immaterial. Hutchinson v. State, 1 Md. App. 362.

With respect to allegation No. 12, Miranda v. Arizona, 384 U. S. 436, is not applicable as the applicant’s trial began prior to June 13, 1966. Norris v. Warden, 1 Md. App. 69. Escobedo v. Illinois, 378 U. S. 478 is not applicable as the applicant did not centend that he asked for counsel and counsel was denied him. Dailey v. Warden, 3 Md. App. 425.

Allegation No. 13 appears to be based on the ground that as the applicant was found not guilty of robbery with a deadly weapon his convictions of robbery and assault were improper. There is no rule of law stating that an accused has been placed twice in jeopardy on a trial under an indictment charging multiple offenses by being acquitted of a count charging robbery with a deadly weapon and convicted of robbery and assault. In any event double jeopardy is not a ground for post conviction relief. Nixon v. Director, 1 Md. App. 14, 16.

Allegation No. 15 was disposed of by Judge Jones in her memorandum accompanying the order denying relief under the applicant’s first petition. She found as a fact that the applicant’s counsel at trial fully advised him of his right to appeal, the time in which an appeal must be noted and the procedure to be followed. We accept her findings of fact and find no denial of the right to appeal due to the negligence of counsel. See McCoy v. Warden, 1 Md. App. 208.

Although allegations Nos. 16, 17 and 18 were not set forth in Judge Hammerman’s memorandum, (see Md. Rules, BK-45b), we now dispose of them. See Ross v. Warden, 1 Md. App. 46. No. 16 is merely a bald allegation. Further, objections or defenses based on defects in the indictment, other than that it fails to show jurisdiction of the court or to charge an offense, must be raised by motion before trial or they are waived. Md. Rules, 725b. There is no showing here that the indictment now challenged failed to show the jurisdiction of the court or to charge an offense, or, if it did that it was called to the attention of the lower court at any time during the proceedings. With regard to No. 17 we find that the applicant was legally-transferred to Patuxent Institution in accordance with the provisions of Md. Code (1967 Repl. Vol.), Art. 31B, § 6. A petition by the Acting Commissioner of Correction requesting that the applicant be transferred for examination was filed on 13 May 1967, the court ordered the transfer on 16 May 1967, and the applicant was transferred pursuant to the order on 25 May 1967. In any event we do not think that this allegation as presented is a ground for relief under the provisions of Md. Code (1967 Repl. Vol.),'Art. 27, § 645A(a). With regard to No. 18 the applicant was not entitled to a belated appeal for the reasons set forth in the discussion of No. 15. We note that a document filed by the applicant entitled “Motion for Consolidation of Petitions as a Delayed Appeal” was denied by Judge Anselm Sodaro, presiding in the Criminal Court of Baltimore, on 21 November 1967.

Relief requested by the third petition was denied without appointment of counsel and without a hearing on the grounds “that any matter which has previously been litigated cannot be heard again, and that any matter which was not previously raised but which reasonably could have been, is deemed waived and may not later-be litigated.” We think the action of the lower court was proper. However, none of the allegations had been previously litigated as there 'was no direct appeal nor appeal from the denial of relief under the first two petitions. Md. Code (1967 Repl. Vol.) Art. 27, § 645A(b)' provides that “* * * an allegation of error shall be deemed to be finally litigated when the Court of Appeals or Court of Special Appeals has rendered a decision on the merits thereof, either on direct appeal or upon any consideration of an application for leave to' appeal filed pursuant to § 645-1 of this subtitle; or when a court of original jurisdiction, after a full and fair hearing, has rendered a’decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of error coram nobis, unless said decision upon the merits of such petition is clearly erroneous.” In the instant case there was no such decision by the Court of Appeals, this Court or a court of original jurisdiction, a decision by a court of original jurisdiction upon a petition under the Uniform Post Conviction Procedure Act not being included in the provisions of the sub-section. But with the exception of the allegation with regard to direct appeal, which we have determined herein, the allegations were properly deemed to have been waived. The applicant could have made them before trial, at trial, on direct appeal (if he had taken such an appeal) or in a prior petition under the U.P.C.P.A. He did not do so and showed no special circumstances sufficient to excuse such failure. As he could have so made them and did not in fact do so, there was a rebuttable presumption that he intelligently and knowingly failed to make them. Md. Code, supra, Art. 27, § 645A(c) ; Md. Rules, BK48a and b. Section 645A(d) is not applicable. He did not rebut the presumption.

The application for leave to appeal sets forth 10 reasons apparently purporting to show why the order of the lower court should he reversed or modified. Md. Rules, BK46b. They are concerned, in the main part, with complaints against the holding of the lower court that the allegations in his petition were finally litigated or waived. We have held that although the allegations raised in his petition were not finally litigated, he was not denied the right to a direct appeal, that the remaining allegations afforded no grounds for post conviction relief and that, in any event, they were properly deemed to have been waived. The reasons in the application are not sufficient to show sufficient special circumstances to excuse the failure to raise the allegations in previous proceedings or to overcome the presumption that he intelligently and knowingly failed to make them.

Application denied.