author: Ortit, J.,

text:
    RICHARD WILLIAM LAWLESS v. STATE OF MARYLAND
    [No. 155,
    September Term, 1967.]

      Decided April 15, 1968.

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

      Joseph Montedonico for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom ■were Francis B. Burch, Attorney General, William A. Linthi.cum, Jr., State’s Attorney for Montgomery County, Andrew L. Sonner, Deputy State’s Attorney for Montgomery County, and .Bari C. Hill, Jr., Assistant State’s Attorney for Montgomery •County, on the brief, for appellee.
   Ortit, J.,

delivered the opinion of the Court.

On August 27, 1964 R. Walter Linthicum left his dwelling -about 8:00 A.M. His wife left about 9:30 A.M. Linthicum returned at 1:50 P.M. and, unlocking the front door, entered his home. He found that the master bedroom and den had been ransacked—furniture disarranged, bureau drawers on the bed .and the contents dumped out and cabinets broken open. He •called the police and while awaiting their arrival discovered that the rear door to the house was secure but that a pane of glass in the basement door, near the door knob, had been broken and the door was open. Access to the basement door from outside the dwelling was by way of a flight of steps leading down to it. A revolver and holster valued at $56 and at least $48 in cash were missing. The pane of glass from the basement door was on the steps near the bottom of the stairwell and a fingerprint expert from the Identification Bureau of the Montgomery County Police Department found latent fingerprints on it. They proved to be the fingerprints of Linthicum, the appellant and Bernard Railey. The appellant and Railey were indicted on April 6, 1966 charged with breaking a dwelling house in the daytime with intent to steal (1st count), grand larceny (2nd count) and receiving stolen goods to the value of $100 or upwards (3rd count). The appellant was found guilty of grand larceny by a jury in the Circuit Court of Montgomery County on May 18, 1967 and sentenced to imprisonment for a term of 4 years.

On appeal the appellant contends :

I. The evidence was not sufficient to sustain the conviction.
II. He was denied a speedy trial.
III. His constitutional rights were “violated by the State’s taking his fingerprints without notifying counsel of rec-

The jury could find that the appellant had been at the basement door of the dwelling at some time from the evidence that his fingerprint was impressed on the pane of glass broken from the door where entry was gained. The print was properly admissible in evidence and its weight was a matter for the trier of facts. See Breeding v. State, 220 Md. 193, 199; Debinski v. State, 194 Md. 355, 359. However, the evidence must also be sufficient to show or to support a rational inference that the appellant was the criminal agent, for “[i]t is generally recognized that fingerprint evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime”. McNeil v. State, 227 Md. 298, 300.

This rule has been applied in Maryland. In McNeil v. State, supra, McNeil’s print, not more than 18 hours old, was found on a partially empty beer bottle near a damaged safe in a tavern that had been broken into and ransacked, which bottle had not been there on a previous visit of the proprietor several days before. The evidence was held to be sufficient. In Musgrove v. State, 3 Md. App. 54, the print of the appellant was found on a rifled jewelry box in a ransacked apartment. There was no evidence of a breaking of the apartment, keys to which were in the possession of the resident manager of the apartment and three occupants of the apartment. One occupant testified that he did not authorize the appellant to enter the apartment and, in fact, did not see him or know him. The other occupants of the apartment did not testify. A repairman had been lawfully in the apartment on the day of the crime but did not testify. We held that those circumstances were not sufficient to exclude the hypothesis that the print was impressed at a time other than that of the crime.

The rationale of the rule has been followed in other jurisdictions in a variety of factual situations when the fingerprint of the defendant was found at the scene of the crime. Evidence was found to be sufficient to prove that the accused was the criminal agent in a number of cases. In Grice v. State, 142 Tex. Crim. 4, 151 S. W. 2d 211 (1941) the print was found on a pane of glass removed at the time of entry into a store. Its location on the glass was in such a place as would be covered by molding when the glass was in place. It was immaterial, therefore, that the defendant had used the door frequently to lawfully enter the premises. In State v. Connors, 87 N. J. Law 419, 94 A. 812 (1915) the prints were found on a balcony post leading from the second story of a house. Also the defendant was shown to have been in town on the day of the burglary. In People v. Taylor, 32 Ill. 2d 165, 204 N. E. 2d 734 (1965) the prints were found on the inside lower window sash of a basement apartment, where a rape had occurred, in such position as to indicate they were left by a person opening the window from the outside. The window was not readily accessible to the public. The court said that “the unexplained presence of the defendant’s prints is not consistent with any reasonable hypothesis of innocence.” In People v. Rodis, 145 Cal. App. 2d 44, 301 P. 2d 886 (1956) the print was found on the outside of a window more than 9 feet from the ground at the rear of a burglarized store. Entry was gained through the window by removing a screen covering the window and some cardboard replacing a previously broken pane. The court held that the physical location of the print by itself was sufficient proof of the identity of the burglar. In State v. Tew, 234 N. C. 612, 68 S. E. 2d 291 (1951) the prints of the defendant, whom the service station attendant had never seen before, were found on glass broken out of the front door of a service station. In State v. Helms, 218 N. C. 592, 12 S. E. 2d 243 (1940) the prints were found on a window through which entry was made into a dwelling. The defendant’s evidence that he had painted the window shortly before the crime was committed was rebutted by evidence of the State that the window had been thereafter washed. The court said that the question of resolving beyond a reasonable doubt that the print could only have been impressed on the window at the time the crime was committed was a matter for the jury. He was convicted of burglary and larceny.

Other cases have held that the evidence was not sufficient to sustain a conviction. In McGarry v. State, 82 Tex. Crim. 597, 200 S. W. 527 (1918) a window pane broken during a robbery contained the defendant’s prints. The court held that this was insufficient to prove the defendant was the robber when it was shown that the pane was in a place accessible to the general public and the pane contained other prints. See also Davis v. State, 125 Tex. Crim. 6, 66 S. W. 2d 343 (1933). In Anthony v. State, 85 Ga. App. 119, 68 S. E. 2d 150 (1951) the prints were found on the money boxes of a pinball machine and music box from which money had been stolen after a restaurant had been broken into. It was not shown whether or not there were other prints on the money boxes, where on the machines the money boxes were located or whether the prints were on the outside or inside of the money boxes. Therefore, the court said, it could not be determined whether the prints could have been impressed only at the time of the crime. In State v. Minton, 228 N. C. 518, 46 S. E. 2d 296 (1948) the prints were found on a glass door broken at the time of the crime. The place entered was a public place, prints other than the defendant’s were found on the pane, and the defendant had been lawfully on the premises earlier that night during business hours. The evidence was held to be insufficient. In State v. Gilliam, 240 S. C. 311, 140 S.E. 2d 480 (1965) prints found on a broken window pane were held to be insufficient where the evidence did not show that entry was gained through that window. In Ivey v. State, 176 So. 2d 611 (Fla. 1965) the only evidence of identity was a print found on a glass jalousie on the front door of a burglarized store building. The court felt that the print could have been made at any time prior to the crime despite the defendant’s statement that he had never been in the town where the store was located.

From the cases considered, we think it clear that the “fingerprint evidence found at the scene of the crime” as stated in the rule enunciated in McNeil v. State, supra, refers only to that evidence which proved that the print was that of the accused. Thus the “circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime” need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent. While a defendant does not have the obligation to testify himself or to offer testimony to explain the presence of his prints, a court cannot supply evidence that is lacking. United States v. Hayes, 385 F. 2d 375 (4th Cir. 1967). We also feel that the rule in McNeil does not compel the State to negative every conceivable possibility that an accused, shown to be at the scene of a crime by his fingerprint, was present other than at the time of the commission of the crime. The fingerprint evidence, as we construe it, need be coupled only “with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime” (emphasis added). The rule does not require under all circumstances in every case that the State affirmatively and conclusively prove that the accused could not have been there other than a time when the crime was committed. Thus, in view of the other circumstances, it may not be necessary for the State to produce evidence by each person who may have authority or apparent ability to admit an accused to the premises lawfully, that he did not authorize that person to enter the premises.

In the instant case the corpus delicti of the larceny was proved. The question is whether the evidence was sufficient to show that the appellant was the criminal agent. The premises from which the goods were stolen was a private residence not accessible to the general public. Entry was gained through a basement door, at the bottom of a stairwell. The door was opened by breaking a pane of glass in the door. The appellant’s print was found on the pane. The prints of two other people were also found on the pane. One was the owner of the premises and the other a person also charged with the offense. It is clear that the evidence tended to show that the appellant was at the scene of the crime. By the location of the basement door and the print, it was a rational inference that he was there unlawfully, and there was no evidence to the contrary. The owner of the premises said that he had not given the appellant or “anyone that looks like him permission to go into” the house on the date of the crime or “at any time.” We think, therefore, that the evidence before the jury was sufficient for them “to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime” and to find that the appellant entered the premises on the day charged and stole the goods. We feel that there was relevant evidence given to the jury to sustain the conviction and, since, in order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or inferences drawable therefrom from which the jury could find a defendant guilty beyond a reasonable doubt, we hold that the lower court did not err in denying the motion for judgment of acquittal and affirm the judgment. Agresti v. State, 2 Md. App. 278; Tillery v. State, 3 Md. App. 142.

II

From the record before us we do not find that the appellant was denied a speedy trial. He was indicted on April 6, 1966. A copy of the indictment was “handed” to him on March 1, 1967 on which date counsel was appointed to represent him. On March 9, 1967 he filed a motion for discovery which was granted on April 6, 1967 and answered by the State on April 17, 1967. He was tried on May 18, 1967. The issue of a speedy trial was first raised by oral motion to dismiss the indictment on the day of his trial. There is no explanation in the record why the appellant was not given a copy of the indictment until March 1, 1967. The record does not show whether or not he knew that he had been indicted prior to that date. His counsel alleged in argument that the appellant was not notified that he was indicted and further alleged to the court that “in fact he was incarcerated either in Prince George’s County or in the House of Correction” during the period from the filing of the indictment to its delivery to him. In Fabian v. State, 3 Md. App. 270, we fully discussed the rules of law pertaining to a speedy trial, noting that generally it is only after a prosecution has been initiated that the issue of a speedy trial can be raised by a defendant and that even when the right accrues to him, he may waive it by failing to demand it or, having demanded it, he may waive it by his conduct thereafter. We held that when an accused does not make a demand for a speedy trial, he must show that he has suffered actual prejudice caused by the undue delaying tactics of the State. Absent such a showing, the right to a speedy trial has not been denied him. The appellant here has made no such showing.

Ill

There is no merit in the appellant’s contention that his “constitutional rights” were violated by the “State’s taking his fingerprints without notifying counsel of record”. There is no constitutional proscription against compelling an accused to submit to fingerprinting, Musgrove v. State, supra, at page 58, and the appellant concedes this. He argues, however, that counsel must be present when the fingerprints are taken, and urges that the rationale of United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed. 2d 1149, Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L.Ed. 2d 1178, and Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, is apposite. We do not agree. The “innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial” which the Court in Wade found to be inherent in “the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence” (388 U. S. at 228) are in no sense present in the taking of the fingerprints of an accused. Nor does the appellant allege that the fingerprints were improperly taken or that those admitted in evidence were not his or were in any way inaccurate. We find no prejudice to the appellant in the taking of his fingerprints out of the presence of his counsel or in the admission of them in evidence.

Judgment affirmed.

      . The record shows that one of the latent fingerprints lifted from the glass was identified as that of appellant by comparison with rolled ink fingerprints of the appellant taken by the police on May 13, 1967. In the appellant’s brief it is stated that he had been confined in the Maryland House of Correction since January SO, 1966 although no evidence was produced to this effect.

      . The indictment noted that the offense charged in the 1st count was in violation of Md. Code, Art. 27, § 32. Prior to the enactment of Chapter 345 of the Acts of 1965 that section applied to a dwelling house. See also Art. 27, § 30 as amended by Chapter 345 of the Acts of 1965. The offenses proscribed by § 32 and by § 466 (receiving stolen goods of the value of $100 and upwards) were misdemeanors, but were designated felonies as of June 1, 1966 by Chapter 628 of the Acts of 1966. Prior to the appellant’s trial he moved to dismiss the 1st and 3rd counts of the indictment on the ground that limitations had run. The State thereupon “abandoned" those counts. However, we note that at the time the appellant was alleged to have committed the crimes charged in the “abandoned” counts, although they were misdemeanors, punishment was by confinement in the penitentiary. See Md. Code (1964 Repl. Vol.), Art. 57, § 11; Kares v. State, 215 Md. 396.
      The docket entries show that on May 3, 1966 Bernard Railey filed a “plea of insanity” and an order for his examination was passed on May 16, 1966. On August 30, 1966 he was ordered to be tranported to the Montgomery County Detention Center and on November 16, 1966, on motion by the State, the indictment against him was stetted.

      . “And when guilt is based solely upon circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence”. Vincent v. State, 330 Md. 333; See Corens v. State, 185 Md. 561, 572.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANDREW WEST v. STATE OF MARYLAND
    [No. 139,
    September Term, 1967.]

      Decided April 16, 1968.

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

      Benjamin L. Brown for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney jor Baltimore City, and Hilary D. Caplan, Assistant State’s Attorney jor Baltimore City, on the brief, for appellee.
   Per Curiam.

Andrew West, the appellant, complains of a conviction of being an accessory before the fact of murder in the Criminal Court of Baltimore. His specific complaints are that he was denied the right to a speedy trial and that the evidence was not sufficient to sustain the conviction.

The appellant was arrested on April 30, 1966, and was indicted without a preliminary hearing by the Grand Jury on July 1st of the same year. Eight days later West was arraigned and counsel was appointed to represent him. On August 2, 1966, the trial date was postponed because Gayheart Cook, who had been charged with the murder for which West was being charged as an accessory before the fact, had not been tried. A further delay was encountered because the State’s Attorney assigned to West’s case was out of the state for approximately three weeks. On the 25th of October, 1966, West’s counsel requested that a trial date be set; the case was set for trial for the 16th of November. On October 26th the defendant, in proper person, filed a motion for a speedy trial. On November 16th the trial was again postponed at the request of the state over the objection of the defendant because Gayheart Cook had filed a plea of insanity. West’s motion for a speedy trial was not considered at that time. The defendant, in proper person, on November 25th, filed a motion to dismiss. Early in February of 1967 Cook was returned to Baltimore City Jail after having been examined at the Clifton T. Perkins State Hospital. The hospital authorities reported that Cook was sane at the time of the crime and sane at the time of the examination. West’s attorney requested again that a trial date be set, and the new trial date was set for March 23, 1967. However, the case was withdrawn from the assignment; neither West’s counsel nor the State’s Attorney were aware of this at the time it occurred. On April 4, 1967, West’s attorney filed a Motion to Dismiss and the following day filed a Petition for Writ of Habeas Corpus. A hearing on the petition was heard on April 10, 1967, but the writ was denied. The trial, rescheduled for May 4th, was not held on that day but was finally held on May 8, 1967, after his motion for a speedy trial had been denied. Gayheart Cook was convicted on May 4th.

The right to a speedy trial is guaranteed by the Sixth Amendment of the Constitution of the United States through the Fourteenth Amendment, Klopfer v. North Carolina, 386 U. S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1, and by Article 21 of the Maryland Declaration of Rights, Allen v. State, 1 Md. App. 249, 229 A. 2d 446. In State v. Long and Nelson, 1 Md. App. 326, 230 A. 2d 119, 122 this court said:

“The right to a speedy trial involves a nice balancing of two rights of society—the primary obligation to ascertain the guilt or innocence of an accused, and the accused’s right to have the accusation determined without oppressive delay.”

The right is a relative one and depends upon the circumstances of a particular case. State v. Long and Nelson, supra, Kelly v. State, 2 Md. App. 730, 237 A. 2d 459. Four factors are considered in interpreting the words “speedy trial:” (1) length of the delay, (2) the reason for the delay, (3) prejudice to the defendant and (4) waiver of the right. Waiver, if found, will dispose of the question, but the first three factors must be weighed together. It is possible that this case could be disposed of under the waiver doctrine, but we prefer to rest our decision on other grounds.

The record shows no prejudice to the defense; the length of the delay was not so great as to be shocking. Compare United States v. Ewell, 383 U. S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 and In re Provoo, 17 F.R.D. 183 (D. Md.) aff'd sub nom. United States v. Provoo, 350 U. S. 857, 76 S. Ct. 101, 100 L. Ed. 761. There was good reason for the delay. The state could not try West, the accessory, until the principal, Cook, was convicted in the absence of an express waiver. Randall v. Warden, 208 Md. 667, 119 A. 2d 712. West would not, or did not, file such a waiver. There was adequate reason for the delay in trying Cook, therefore West was not denied a speedy trial.

West next contends there was insufficient evidence to support his conviction in the trial before the court. The evidence discloses that Cook and the deceased had been engaged in a fight in a bar and that they continued the fight in front of the bar; that West walked out of the bar and inquired of Cook “What’s the matter fellow? In response, Cook said “Give me the stuff you got”; whereupon West handed a knife to Cook, who ran down the street after the deceased and stabbed him to death.

In Watson v. State, 208 Md. 210, 117 A. 2d 549, 552 an accessory is defined as follows :

“An accessory before the fact is one who aids or abets the principal offender before or at the time of the commission of the crime. An accessory after the fact is one who, knowing that a felony has been committed, harbors and protects the felon or renders him any other assistance to elude punishment.”

Under Maryland Rule 1086 we cannot say the trial judge was “clearly erroneous” on these facts and law when he found:

“Under all the facts, the only inference that I can get from the evidence is that West knew that Cook and Webb had been fighting, and when he was asked by Cook to give him the stuff, West didn’t ask what stuff he meant. He knew immediately that Cook wanted a knife to use on Webb and he willingly and immediately got the knife from under his hat and handed it to Cook, knowing that Cook was going to use it on Webb.”

Judgment affirmed.


author: Murphy, C. J.,

text:
    LUTHER ROBINSON v. STATE OF MARYLAND
    [No. 164,
    September Term, 1967.]

      Decided April 16, 1968.

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

      Charles Philip Brown for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Mo-ylan, Jr., State’s Attorney for Baltimore City, and Barrett W. Freed-lander and Hilary Caplan, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted on May 2, 1967, in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury, of storehouse breaking and larceny and sentenced to five years imprisonment in the Maryland House of Correction on each count, the sentences to run concurrently. He contends on this appeal that the lower court erred (a) in admitting his confession into evidence since it was not shown to have been voluntarily made, and (b) that there was no evidence corroborating the confession sufficient to justify the convictions.

The evidence adduced at the trial showed that appellant was arrested without a warrant “for investigation” by Baltimore County police officers at 8:30 p.m. on December 10, 1966. He was taken to police headquarters in Towson and interrogated about a number of Baltimore County burglaries until about midnight, when he was transferred to the Parkville station for the night. He was returned to Towson the following afternoon and again briefly interrogated, after which he was taken to the Cockeysville station to spend the night. On Monday, December 12, he was again returned to Towson where he was interrogated from about 10 :00 a.m. until 1:30 p.m. when he gave a statement to the officers admitting offenses in Baltimore County. On Tuesday, December 13, the Baltimore County police phoned Sgt. Arthur Simonsen of the Baltimore City Police Department, telling him that they had the appellant in custody and that he was responsible for a burglary in Baltimore City. Sgt. Simon-sen proceeded at once to Towson headquarters and at 1:00 p.m. that day, appellant gave him a statement admitting complicity in the Baltimore City offenses involved in the instant case.

At the trial, Sgt. Simonsen testified that prior to interrogating appellant, he advised him of his rights under Miranda v. Arizona, 384 U. S. 436; that appellant affirmatively and expressly waived these rights; that the appellant appeared in fairly good condition during the interrogation, even though he was known to be a drug addict; and that no threats, promises, or inducements were made to appellant to cause him to make a statement. The appellant objected to the introduction of the statement on the ground that under Westover v. United States, 384 U. S., at page 494, a companion case to Miranda v. Arizona, supra, the persistent and lengthy interrogation conducted by Baltimore County officers immediately prior to his interrogation by Sgt. Simonsen was such as to make the confession given by him to Sgt. Simonsen the involuntary product of the coercive and unconstitutional pressures applied earlier by the Baltimore County officers. Appellant, testifying on the issue of the voluntariness of his statement to Simonsen, stated that the Baltimore County officers never advised him of his Miranda rights, that he was a drug addict and ill during his interrogation by Baltimore County officers, that he was told by the Baltimore County officers that he would be taken to a hospital if he would confess to certain crimes in that County, and that he was told that he could involve a co-defendant, Samuel Spedalere, only if he himself confessed. On cross-examination by the State, appellant testified, in somewhat contradictory manner,, that he did not confess to the Baltimore County crimes because he was told he would be taken to a hospital, but because Spedalere had given a statement to the police, and he was told by Baltimore County officers that “it would be best” if he gave a statement to “clarify up all these crimes.” Appellant testified that he gave a statement because he wanted to involve Spedalere, that he gave a statement after he found out that Spedalere had confessed, that he gave a statement so that, “his records * * * would be clarified” as to the crimes that he had committed, and that he confessed because he was told by the officers that if he did not, he would be picked up later.

While the Baltimore County police officers who had arrested and interrogated appellant were present in court and testified for the State, they were not asked, nor did they rebut or contradict appellant’s testimony concerning the promises and verbal threats allegedly made by them to him to obtain a confession to the Baltimore County crimes, nor did they rebut appellant’s, testimony that they did not advise him of his Miranda rights at any time while in their custody.

The trial judge admitted the confession into evidence, finding-as a fact from the evidence that there was no persistent or prolonged interrogation overbearing the will of the appellant to resist, that appellant’s movement between the various stations, was due to the fact that there was inadequate sleeping facilities at Towson headquarters, that Sgt. Simonsen had given appellant all Miranda warnings prior to interrogating him, that-he did not believe appellant’s statement that the County officers, had promised him hospital treatment in return for a confession, and that the reason appellant confessed was because of his. knowledge that Spedalere had implicated him and “to get back at Spedalere” he also made a statement.

It is well settled that in order for a confession to be admissible into evidence against an accused, the State must prove that it was voluntary and not the product of force, threats, promises or inducements. Abbott v. State, 231 Md. 462; Cooper v. State, 1 Md. App. 190. Otherwise stated, to be voluntary, a statement cannot be “extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Malloy v. Hogan, 378 U. S. 1, 7; Lyter v. State, 2 Md. App. 654. In post-Miranda trials, where the State seeks to introduce a statement taken from an accused during custodial interrogation, it must, as part of its proof of voluntariness, affirmatively show that all warnings required to be given to an accused by that case prior to such interrogation were so given, Robinson v. State, 1 Md. App. 522, and that the accused, in giving the statement, understood his rights and knowingly and intelligently waived them, Johnny Mack Brown v. State, 3 Md. App. 313. The basic standard governing the admissibility of an extra-judicial statement is whether, considering the totality of the circumstances, the statement was voluntary. Clewis v. Texas, 386 U. S. 707; Taylor v. State, 238 Md. 424; McFadden v. State, 1 Md. App. 511. Within this constitutional framework, the question of whether a confession should be admitted in evidence is ordinarily a matter for the trial court to decide and its determination will not be disturbed on appeal unless there was a clear abuse of discretion. Cunningham v. State, 247 Md. 404; Carrington v. State, 1 Md. App. 353.

The record before us does not disclose the details of the confession given by the appellant to Baltimore County police officers, nor does it contain any evidence to show that appellant confessed his involvement in the Baltimore City crime to the Baltimore County police officers. The implication to be gathered from the testimony, as we read it, is that it was Spedalere, appellant’s confederate, and not the appellant, who informed the Baltimore County police of appellant’s participation in the Baltimore City crime which ultimately led to Sgt. Simonsen’s questioning of the appellant at Towson police headquarters. This is not a case then falling precisely within the rule articulated in Combs v. State, 237 Md. 428, 435, that where one confession is held to be involuntary and inadmissible, subsequent confession to the same crime is presumed to flow from the improper influence which produced the first confession, at least until a cessation of that influence is definitely shown; and that the evidence to overcome and rebut such a presumption must be clear, strong and satisfactory, and any doubt on the question resolved in favor of the accused. Cases of this factual posture are well illustrated by Clewis v. Texas, supra, where the Supreme Court held, under the circumstances of that case, that a subsequent confession to the same crime could not be separated from an earlier coerced confession because “there was no break in the stream of events * * * sufficient to insulate the statement from the effect of all that went before.” In Keller v. State, 2 Md. App. 623, we found on the facts of that case that the compelling background of improper inducements which produced the first confession was not so dissipated as to render a subsequently given confession to the same crime free and voluntary. See also Beecher v. Alabama, 389 U. S. 35; United States v. Bayer, 331 U. S. 532. And since we are not here dealing with a subsequent confession given to the same crime, the fact that the State did not specifically rebut appellant’s testimony to the effect that improper inducements and verbal threats were made to him to obtain a confession to Baltimore County crimes does not, of course, compel a finding that the State necessarily failed to prove the voluntariness of the subsequent confession to a different crime given to a Baltimore City police officer. See Streams v. State, 238 Md. 278, and cases there cited.

We think the proper test to be applied in determining the voluntariness of appellant’s confession to Sgt. Simonsen is, as heretofore indicated, whether, under all of the circumstances, it was the product of a free and unconstrained will which had not been •overborne or compelled; in other words, the appropriate inquiry is whether the alleged mistreatment received at the hands •of the Baltimore County police, together with the circumstances under which appellant was held in custody, were such as unconstitutionally influenced the making of the subsequent confession. See O’Connor v. State, 234 Md. 459, where the court concluded on the facts of that case that a confession given to the Maryland State Police was not the product of earlier alleged mistreatment by New Jersey police, and Mefford and Blackburn v. State, 235 Md. 497, another case wherein it was unsuccessfully urged that a confession to officers of one police department was the product of earlier mistreatment by officers of another department. See also Cooper v. State, supra. In Westover v. United States, supra, involving, as here, custody and interrogation by officers of one police department, and a subsequent confession to a different crime given to federal officers, the facts showed that the local police gave the accused no constitutional warnings, as now required by Miranda, and subjected him to continuing interrogation over a fourteen hour period, immediately following which the federal officers, using the same interrogation facilities, interrogated him without securing a waiver of his right to remain silent or of his right to consult with counsel prior to their interrogation. The court there held that although the two law enforcement authorities were legally distinct, and the crimes for which they were interrogating West-over were different, “the impact on him was that of a continuous period of questioning,” that the federal interrogation was conducted, “in the same compelling surroundings,” that in obtaining a confession from Westover, the federal authorities were “the beneficiaries of the pressure applied by the local in-custody interrogation,” and that “in these circumstances” an intelligent waiver of Westover’s constitutional rights to remain silent and to counsel could not be assumed.

Viewing the record before us in light of the principle enunciated by these cases, we hold that the trial judge did not abuse his discretion in admitting the appellant’s confession into evidence. We note at the outset that illegal detention, by itself, does not render a subsequently given confession involuntary, Streams v. State, supra, and State v. Hill, 2 Md. App. 594; that lengthy questioning does not, of itself, make a confession involuntary, Cooper v. State, supra; and the fact that appellant may have been a drug addict and undergoing withdrawal symptoms at the time of his confession would not, standing alone, compel a finding that his confession was involuntarily made, Bryant v. State, 229 Md. 531. We note further that appellant’s testimony concerning the circumstances and conditions under which he confessed to the Baltimore County officers was contradictory in part, that the trial judge expressly stated his disbelief of appellant’s testimony that the officers promised him medical treatment in return for a confession, and that it was the court’s conelusion that the confession resulted from appellant’s voluntary-desire to implicate a co-defendant, Spedalere. We also note that while there is no evidence that the Baltimore County officers afforded appellant any Miranda warnings while in their custody, it is clear that Sgt. Simonsen did afford such warnings and, unlike the situation in Westover, he secured an express waiver of appellant’s Miranda rights. Moreover, again unlike Westover, appellant’s statement to Sgt. Simonsen was given a full twenty-four hours after questioning by the Baltimore County officers had ceased, so that there was a significant passage of time between interrogations, as well as a change in interrogators—factors properly to be considered in determining whether the taint of the initial interrogation had been dissipated. That the trial judge, in admitting the confession in evidence, did not abuse his discretion is, we think, entirely clear.

The appellant next contends that the evidence introduced at his trial was insufficient to support his convictions, since it consisted only of his extrajudicial confession without independent proof of the corpus delicti. We cannot agree. As we stated in Howard v. State, 1 Md. App. 379, 382, quoting Bradbury v. State, 233 Md. 421, 425:

“* * * the independent evidence necessary to support the confession need not be ‘full and positive’ proof of the corpus delicti and may be small in amount, if such proof, when considered with the confession, convinces the jury beyond a reasonable doubt of the guilt of the accused.”

Otherwise stated, any facts and circumstances that are substantial in nature and fortify the truth of the confession or statement are sufficient to support a conviction. See Holland v. State, 244 Md. 671; Hadder v. State, 238 Md. 341; Koprivich v. State, 1 Md. App. 147; Whitmer v. State, 1 Md. App. 127. We think the evidence adduced at the trial established sufficient independent proof of the corpus delicti to sustain the appellant’s conviction. It was stipulated that when the owner of Tommey’s Pharmacy left his store on the evening of December 3, 1966, the doors and windows were locked and that when he returned in the morning the door of the pharmacy was open and property totaling $1,237.86 in value had been removed from the premises; that among the goods taken from the pharmacy was a display case containing ten Zippo lighters; and that these lighters were subsequently recovered from Spedalere’s automobile on December 8, 1966, and identified at the trial as those taken from the pharmacy. The appellant’s statement indicated that he had knowledge that these lighters had been taken during a burglary of the pharmacy, which he had committed in the company of Spedalere. The attending facts clearly give credence to the appellant’s confession and independently establish the corpus delicti.

Appellant also contends that the trial judge improperly permitted the State to question him as to his prior criminal convictions when he had taken the stand only to testify concerning the voluntariness of his confession. This contention has no merit. In this State it has been firmly established that in criminal cases where the defendant is a witness in his own behalf, he thereby puts his character in issue and may be asked on cross-examination if he has been convicted of crime, even where he takes the stand only for the limited purpose of the voluntariness of his statement. The background of this rule together with a compilation of cases so holding can be found in Judge O’Donnell’s exhaustive opinion in Boone v. State, 2 Md. App. 80, pages 101-107.


text:
    HERBERT ANDERSON MOORE v. STATE OF MARYLAND
    [No. 174,
    September Term, 1967.]

      Decided April 16, 1968.

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

      Riclzard K. Jacobsen for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Man'shall, Jr., State’s Attorney for Prince George!s County, and
      Joseph J. Bonner, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

On July 12, 1967, the appellant, Herbert Anderson Moore, was tried by a jury for storehouse breaking and larceny in the Circuit Court for Prince George’s County, Judge Roscoe H. Parker presiding.

Appellant was found guilty of storehouse breaking and not guilty of larceny, and sentenced to the jurisdiction of the Department of Correction for a term of four years.

Appellant’s sole contention raised on appeal is that the evidence was not sufficient to sustain the conviction.

The evidence adduced at trial established that on the morning of August 18, 1966, Officer Eugene G. Palmer of the Prince George’s County Police Department responded to an “alarm off” at 1450 62nd Avenue, Cedar Heights, Maryland. Upon arrival, he observed that the adjacent building had “a big bay door on it and that the handle on this door was turning.” Assistance was radioed for and the building remained under observation. Thereafter he observed that the front door had been “jimmied” and that “bars on a window had been pulled off, glass was broken and the window was open.” During the period of observation, no one left or entered the building.

Additional officers arrived, and upon their arrival, accompanied by a police dog, entered the building and after calling out that the dog would be released if no one responded to the warning, released the dog. The dog began to circle a particular truck in the building, which upon investigation was found to contain the appellant and his companion, one Arnett, who were hiding therein.

Witness Edward E. Bealer testified that he and his wife were the owners of the building when this incident occurred and that he was an officer of the corporation whose equipment was located therein. He further testified that he had locked the building before leaving on the day preceding this incident and substantiated the testimony of the officers concerning the condition of the building subsequent to the breaking. He also set forth in detail the contents and specified that upon his arrival the office was in a state of “disarrangement and dishevelment” and that the drawers were opened and their contents scattered about and that an “R. C. Allen typewriter,” replacement value $140.-00, an “Underwood calculator,” for which he had paid $150.00, a “portable transistor radio” valued at “$18 or $19,” a “Craftsman skill saw” valued at $40.00 and blank checks had all been removed.

Appellant testified that he had been drinking heavily the night before and the morning of the occurrence and that while journeying from his wife’s house to his father’s house he had met Jimmie Arnet on Sheriff Road. Subsequently, both observed some figures going in and out of the instant warehouse, and decided to “check it out.” After entering the warehouse, they gravitated to the back room wherein they were located when the door locked behind them. At that juncture, they decided to spend the night in the truck and await the owner’s arrival to examine this aforenoted occurrence. Appellant urged that he “didn’t go in there with any intent to steal anything.” Arnett’s testimony substantiated that of the appellant.

The appellant failed to make a motion for judgment of acquittal at the conclusion of the entire case and, accordingly, this Court is precluded from reviewing the sufficiency of the evidence. Ledbetter v. State, 224 Md. 271, 273, 167 A. 2d 596 (1961); Hall v. State, 1 Md. App. 392, 394, 230 A. 2d 473 (1967). However, had the question been properly preserved, we would have no difficulty in finding that there was legally sufficient evidence, or reasonable inferences therefrom, from which, the jury could find the appellant guilty beyond a reasonable doubt. Hall v. State, supra, 394.

The thrust of appellant’s argument is that since he was found not guilty of larceny, but guilty of storehouse breaking, the verdicts are inconsistent and consequentially the guilty verdict must fail.

In Ledbetter v. State, supra, Judge Hammond, speaking for the Court of Appeals regarding consistency of verdicts, quoted Dunn v. United States, 284 U. S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), wherein Mr. Justice Holmes stated at pages 393-394:

“Consistency in the verdict is not necessary. * * * That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.”

That Court went on to favorably quote the language of Judge Learned Hand concerning inconsistency in Steckler v. United States, (C.C.A. 2d), 7 F. 2d 59, 60 (1925) that:

“The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.”

With respect to the pattern of proof necessary to establish grand larceny, the State must prove the value of the stolen articles to be $100 or in excess thereof. However, a charge of breaking with intent to steal goods of a designated value, can be satisfactorily established when the evidence permits the trier of facts to reasonably infer that the accused intended to take goods of that value or more. Mercer v. State, 237 Md. 479, 485, 206 A. 2d 797 (1965); Holtman v. State, 219 Md. 512, 517, 150 A. 2d 223 (1939); O’Brien v. State, 1 Md. App. 94, 227 A. 2d 362 (1967). The amount of value of what is intended to be stolen is often a matter of inference. Mercer v. State, supra, 485; Putnam, v. State, 234 Md. 537, 546, 200 A. 2d 59 (1964). The actual intent at the time of the breaking and proof of such an intention does not have to flow from direct evidence but may be inferred from the totality of the circumstances. Holtman v. State, supra; Ridley v. State, 228 Md. 281, 282, 179 A. 2d 710 (1962); O’Brien v. State, supra.

Here, we are confronted with an illegal entry at night, opened and ransacked drawers, coupled with missing goods and circumstances which presented a substantial basis wherefrom the jury could reaonably infer that the appellant intended to steal property valued in excess of $100.00. Putnam v. State, supra; Howard v. State, 240 Md. 699, 213 A. 2d 288 (1965).

In trial before a jury this Court can review the sufficiency of the evidence, but this Court does not inquire into and measure the weight of the evidence but only determines whether there is any relevant evidence which could properly sustain a conviction. Brooks v. State, 3 Md. App. 485, 240 A. 2d 114; Hayes v. State, 3 Md. App. 4, 10, 237 A. 2d 531 (1968); Banks v. State, 2 Md. App. 373, 376, 234 A. 2d 798 (1967). In the instant case, there was legally sufficient evidence from which the jury could be fairly convinced beyond a reasonable doubt of the appellant’s guilt.

Judgment affirmed.


author: Thompson, J.,

text:
    LEONARD HALL, JR. v. STATE OF MARYLAND
    [No. 183,
    September Term, 1967.]

      Decided April 16, 1968.

    The cause was argued before Morton, Orth, and Thompson, JJ., and Pitcher, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.

      William. F. Mosner 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 L. Robert Evans, Deputy State’s Attorney for Baltimore County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On June 21, 1967 Judge John E. Raine of the Circuit Court for Baltimore County denied the motion of Leonard Hall, Jr., the appellant, to dismiss the indictment for murder against him. The ground for the motion was that he had been denied a speedy trial. From that denial, Hall has appealed.

The chronological sequence of events material to this appeal is as follows:

July 17, 1959 Appellant was arrested.

November 11, 1959 Appellant was found guilty of murder in the first degree and sentenced to death by a jury in the Circuit Court for Baltimore County, Judge W. Albert Menchine, presiding. (December 15, 1959)

December 28, 1959 Appellant filed notice of appeal to the Court of Appeals of Maryland.

August 10,1960 Judgment affirmed, Hall v. State, 223 Md. 158, 162 A. 2d 751.

September 16, 1960 Appellant filed a petition under the Uniform Post Conviction Procedure Act.

November 10,1960 Petition denied.

November 23,1960 Appellant filed an application for leave to appeal the denial of his petition.

March 13, 1961 Application denied, Hall v. Warden, 224 Md. 662, 168 A. 2d 373, cert. denied 368 U. S. 867, 82 S. Ct. 78, 7 L. Ed. 2d 65.

January 17, 1963 Appellant was accorded a new trial, Hall v. Warden, 313 F. 2d 483 by the Fourth Circuit, applying Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 retroactively. This decision reversed the order of the Federal District Court for the District of Maryland, dated January 23, 1962—Hall v. Warden, 201 F. Supp. 639 (D. Md. 1962).

March 8, 1963 State petitioned the Supreme Court of the United States for a writ of certiorari.

June 10, 1963 Certiorari denied, Pepersack v. Hall, 374 U. S. 809, 84 S. Ct. 1693, 10 L. Ed. 2d 1032.

July 15, 1963 Appellant’s habeas corpus petition granted by the Federal District Court for Maryland. The State given an opportunity to retry Hall and until August 15, 1963 to rearraign him.

August 5,1963 Flail arraigned in the Circuit Court for Baltimore County.

August 21, 1963 On motion by the appellant, the case was removed to Howard County.

November 13, 1963 Appellant’s motion to suppress statements, confessions and illegally seized articles granted.

November 18, 1963 Appellant’s counsel asked the State’s Attorney for Baltimore County for a trial date.

November 18, 1963 State’s Attorney for Baltimore and for Howard County filed appeal from order of November 13, 1963.

January 2, 1964 State dismissed the appeal filed on November 18, 1963.

February 10, 1964 Appellant’s Howard County trial started.

February 11, 1964 Mistrial declared by Judge Macgill when jury could not agree on a verdict.

April 3, 1964 Appellant’s motion to suppress evidence filed.

April 30, 1964 Above motion overruled by Judge Mac-gill.

May 12, 1964 Appellant’s petition for transcript of proceedings filed.

July 16, 1964 Above petition heard.

August 12, 1964 Appellant’s motion for a transcript of the February 1964 trial granted i.e. partial transcript allowed; appellant’s motion to reconsider motion to suppress denied, Judge Macgill.

January 11, 1965 Appellant’s petition and affidavit for removal filed.

February 11, 1965 Hearing on above motion.

February 18, 1965 On above motion, the case was removed to Montgomery County.

March 24, 1965 Record transferred to Montgomery County.

April 19, 1965 Trial set for June 1, 1965.

May 5, 1965 Hall’s attorney asked that the June 1, 1965 trial date be postponed at least eight days. State’s Attorney consented.

June 7, 1965 The Supreme Court of the United States decided Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 whereby Mapp was not to be applied retroactively.

June 29, 1965 Appellant’s counsel requested the Administrative Office of the Court of Montgomery County that Hall be tried “at the earliest time your schedule will permit.”

June 29, 1965—

January 1966 Hall’s counsel meets four or five times with State’s Attorney for Baltimore County and requests prompt trial.

January 14, 1966 Hall elects to be reindicted under Schowgurom v. State, 240 Md. 121, 213 A. 2d 475.

January 21, 1966 Hall’s attorney is informed by the Baltimore County State’s Attorney that Attorney General may petition the Fourth Circuit to vacate its judgment of January 17, 1963.

March 25, 1966 Attorney General filed its motion to vacate.

June 20, 1966 Hearing held in Richmond, Virginia.

July 26, 1966 The Fourth Circuit denied the State’s motion—Hall v. Warden, 364 F. 2d 495.

November 22, 1966 Appellant petitioned for enforcement of the release order of July 15, 1963 and complained of a denial of a speedy trial.

December 19,1966 Hall reindicted by the Baltimore County Grand Jury.

February 10, 1967 Hall’s Baltimore County arraignment is postponed at request of Hall.

March 9, 1967 Hall’s petition in the Federal Court is denied until he exhausts his state remedies, i.e. Hall should be released from confinement under the old indictment held improper by the Fourth Circuit and also held invalid by Scho<wgwrom but the Maryland courts will have to decide if he should be tried under the new indictment.

April 26, 1967 Hall filed motion to dismiss the indictment in the Circuit Court for Baltimore County.

June 21,1967 Motion denied.

July 6, 1967 Appellant filed this appeal.

Four factors are considered in interpreting the meaning of the words “speedy trial” guaranteed by Art. 21 of the Maryland Declaration of Rights and the Sixth Amendment of the Constitution of the United States, the latter made applicable to the states by the Fourteenth Amendment, Klopfer v. North Carolina, 386 U. S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1: (1) length of the delay (2) prejudice to defendant (3) reason for the delay and (4) waiver of the right. State v. Long and Nelson, 1 Md. App. 326, 230 A. 2d 119, Kelly v. State, 2 Md. App. 730, 237 A. 2d 459. For a discussion of these various factors see 51 Virginia Law Review 1587. Waiver will, of course, dispose of a case, but the other three factors are relative and must be considered together in arriving at a decision in each case.

I Questioned Time

Although we have set out all important dates connected with this case since July 17, 1959 Hall complains of only the delay between February 11, 1964, the date of his last trial which resulted in a mistrial because of the inability of the jury to agree on a verdict, and December 19, 1966 when he was reindicted after his election to void his prior indictment pursuant to Schowgurow v. State, 240 Md. 121, 213 A. 2d 475. We agree with counsel that the time prior to February 11, 1964 and subsequent to December 19, 1966 do not contribute to the denial of a speedy trial. State v. Murdock, 235 Md. 116, 200 A. 2d 666, State v. Long and Nelson, supra. We now examine what transpired in the questioned period of time.

(a) Preliminary Period

We hold that the record shows that Hall waived his right to a speedy trial by several affirmative acts between February 11, 1964 and June 29, 1965, which we call the “Preliminary Period.” During this period Hall kept the prosecutors and the courts busy with a number of proceedings :

1. Between April 3, 1964 and April 30, 1964—Motion to suppress evidence.
2. Between May 12, 1964 and August 12, 1964—Motion for transcript (granted in part) and reconsideration of motion to suppress (denied).
3. August 12, 1964—Preparation of partial transcript of prior trial ordered (record does not disclose when transcript was filed.)
4. Between January 11, 1965 and March 24, 1965—Removal of case to Montgomery County.
5. Between March 24, 1965 and April 19, 1965—-Setting of trial date.
6. Between May 5, 1965 and June 8, 1965—-Petition of Defendant’s counsel for postponement until after June 8, 1965.

Waiver of a speedy trial need not be express but may be by acts of the accused, State v. Murdock, supra, State v. Long and Nelson, supra. It should also be noted that prior to June 29, 1965 there was no demand for a speedy trial which in itself has been treated as a waiver. Harris v. State, 194 Md. 288, 71 A. 2d 36, Allen v. State, 1 Md. App. 249, 229 A. 2d 446, Manning v. State, 2 Md. App. 177, 233 A. 2d 821.

(b) Second Period

On June 29, 1965 there was a demand for speedy trial filed with the Administrative Office of the Circuit Court for Montgomery County. Between June 29, 1965 and January 14, 1966 the appellant’s counsel met with the State’s Attorney for Baltimore County and requested a prompt trial. We think this “Second Period” is the crucial period because more than six months elapsed when the only activity of record by either side was the appellant’s demands for trial. Relying on Harris v. State, supra, the State contends that the application for a speedy trial must be made to a court, and not to the State’s Attorney or to an administrative official. Although subsequent cases seem to have raised some question as to the necessity for the application being made to the court we do not need to decide that point here because we have no hesitancy in holding that where a trial court has appointed an assignment clerk to set cases for trial an application to that official is the same as an application to the court.

The basic rule interpreting “speedy trial” guaranteed by the State and Federal Constitutions, Art. 21 of the Maryland Declaration of Rights and the Sixth Amendment of the Constitution of the United States was stated and applied by this court in Fabian v. State, 3 Md. App. 270, 239 A. 2d 100, and in State v. Long and Nelson, supra. In those cases we quoted from Jones v. State, 241 Md. 599, 608, 217 A. 2d 367, 373, as follows:

“22A C.J.S. Criminal Law § 467 a (4), states the general rule thus:
‘A speedy trial is, in general, one had as soon as the prosecution, with reasonable diligence, can prepare for it; a trial according to fixed rules, free from capricious and oppressive delays, but the time within which it must be had to satisfy the guaranty depends on the circumstances.’ ”

In a recent case the Supreme Court of the United States set out the speedy trial doctrine fully, United States v. Ewell, 383 U. S. 116, 119, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627:

“We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment’s guarantee of a speedy trial. This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that ‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’ Beavers v. Haubert, 198 U. S. 77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950. ‘Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances. * * * The delay must not be purposeful or oppressive,’ Pollard v. United States, 352 U. S. 354, 361, 77 S. Ct. 481, 486, 1 L. Ed. 2d 393. ‘[T]he essential ingredient is orderly expedition and not mere speed.’ Smith v. United States, 360 U. S. 1, 10, 79 S. Ct. 991, 997, 3 L. Ed. 2d 1041.”

We hold that during this “Second Period” the prosecuting officials of this State were faced with difficult and unusual conditions and therefore the delay was reasonable and not purposeful or oppressive for the following reasons :

In Hall v. Warden, 313 F. 2d 483 (January 17, 1963) cert. denied, sub nom. Pepersack v. Hall, 374 U. S. 809, 83 S. Ct. 1693, 10 L. Ed. 2d 1032 the Court of Appeals for the Fourth Circuit granted the present appellant relief based on the retroactivity of Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (Illegal searches and seizures). On June 7, 1965, the Supreme Court of the United States reached a contrary result in Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601. After a long delay, the State filed a motion on March 25, 1966 to vacate the judgment in Hall v. Warden, supra. The motion was denied July 26, 1966, Hall v. Warden, 364 F. 2d 495. If this were the only complication during what we have designated the “Crucial Period” we would reverse, but there was another which caused considerably greater problems for the prosecutor in this case as well as for prosecutors throughout the State.

On October 11, 1965 the Court of Appeals of Maryland decided Schowgurow v. State, supra, which held that virtually all juries within this State were illegally constituted because the individual members were required to have expressed a belief in God. Schowgurow was a Buddist and did not believe in God. The decision was held to be prospective only except as to convictions which had not then become final.

On October 21, 1965 the same court decided State v. Madison, 240 Md. 265, 213 A. 2d 880 applying the Schowgurow doctrine even though the accused believed in God.

On November 30, 1965 the same court decided Smith v. State, 240 Md. 464, 214 A. 2d 563 which held that the Schowgurow defect in an indictment could be expressly waived. Hays v. State, 240 Md. 482, 214 A. 2d 573, decided the same date held that such a defect could not be impliedly waived.

On January 14, 1966 Hall elected to vacate his prior indictment under the Schowgurow holding.

The mere listing of the holdings of the various cases in the “Second Period” is sufficient to show the many problems Hall’s prosecutors faced and that the delay during this period was not purposeful or oppressive.

(c) Final Period

We shall call the period of time between January 14, 1966 the date of the Schowgurow election, and December 19, 1966 the date of his reindictment, the “Final Period.” We have no difficulty in holding that Hall was not denied a speedy trial during this period.

In Allen v. State, 1 Md. App. 249, 229 A. 2d 446, we held that where there was a delay in a trial because of reversals obtained by an accused there was no denial of a speedy trial. Obviously, when Hall exercised his election under Schowgurow the state had a reasonable time in which to reindict him. Ordinarily, the statute of limitations determines the time in which an indictment may be filed. Price v. State, 235 Md. 295, 201 A. 2d 505, Brown v. State, 1 Md. App. 571, 232 A. 2d 261.

In Osborne v. State, 3 Md. App. 161, 238 A. 2d 145, 146 we held as follows:

“When Osborne challenged the validity of his original indictments on the basis of Schowgurow, supra, they properly were ruled to be null and void. Thus, during the period from March 4, 1966, when the ruling was issued and February 20, 1967, the date of his reindictment, there was no criminal prosecution pending against him arising out of the crimes charged in the original indictment. Presumably the State could have elected not to seek reindictment or, presumably the Grand Jury, on the evidence presented, could have refused to reindict. In any event, during this period, which is the period of time that the Appellant contends constituted a denial of a speedy trial, there was no prosecution pending. Hence, he cannot successfully complain of the delay since the institution of the prosecution by the return of the indictments by the Grand Jury on February 20, 1967 was well within the Statute of Limitations. Md. Code (1967 Repl. Vol.) Art. 27, Secs. 12 and 139.”

It should be noted: (1) that it was not until July 26, 1966 that the state’s motion to vacate the judgment of Hall v. Warden, supra, was denied and it was certain that there must be a reindictment; (2) that on November 22, 1966 Hall filed a habeas corpus in the U. S. District Court and that this was not disposed of until March 9, 1967. On these facts we cannot hold that the five month delay in the reindictment, (demanded by Hall), from July 26, 1966 until December 19, 1966 was an unconstitutional delay.

II Prejudice

Hall alleges that his motion to dismiss should be granted because the stipulation filed in these proceedings shows that he was prejudiced because two prospective witnesses have died and four others have disappeared. Although none of these witnesses testified at either of his trials, he alleges that he did not discover them until after his last trial. It will be observed that all of the questioned time was consumed by the proceedings instituted by Hall or, in a small portion, by the State’s reasonable reaction to those proceedings. There is no showing whether the witness became unavailable during the time chargeable to Hall or to the State. Under the circumstances of this case we find no unconstitutional delay; therefore, the prejudice, if any, is only one consideration. This thought becomes more clear if we consider that an important witness may die at any time and the accused be prejudiced in a trial conducted very promptly after the offense. In Allen v. State, supra at 1 Md. App. 249 at 252 we said:

“In the case of United States v. Ewell, 383 U. S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966) it was held that the passage of nineteen months, in a Federal case, between the original arrest and the hearings on later indictments replacing those that had been dismissed on motion of the accused did not violate the Speedy Trial Clause. The Court said: (86 S. Ct. at page 777)
'It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. * * * The rule of these cases, which dealt with the Double Jeopardy Clause, has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error.’ ”

For the reasons detailed above we see no denial of a speedy trial in this case.

Judgment affirmed.

      . The constitutional right to a speedy trial may be waived more informally than other constitutional rights. 51 Virginia Law Review 1587 (cited above) 1609 contains a critical discussion of this rule of law, but concedes that it is well established.

      . State ex rel. Thompson v. Warden, 198 Md. 668, 81 A. 2d 596, State v. Murdock, 235 Md. 116, 200 A. 2d 666, Jones v. State, 241 Md. 599, 217 A. 2d 367.

      . Hall’s conviction would have been final under this decision except for the ruling of the Fourth Circuit Hall v. Warden, 313 F. 3d 483 which was inconsistent with the subsequent Supreme Court case of Linkletter v. Walker, supra. We are not impressed with Hall’s argument that the State showed bad faith in seeking to have the Hall judgment vacated. Compare Koenig v. Willingham, 324 F. 3d 63 (6th Cir.) and In re Provoo, 17 F.R.D. 183 (D. Md.) aff’d sub nom. United States v. Provoo, 350 U. S. 857, 76 S. Ct. 101, 100 L. Ed. 761.

      . The stipulation does not clearly include this fact but we will assume for the purpose of this decision that it is in the record.


author: Morton, J.,

text:
    JAMES FRANK MILLS v. STATE OF MARYLAND
    [No. 187,
    September Term, 1967.]

      Decided April 16, 1968.

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

      G. Denmead BeViness for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney for Baltimore City, and George J. Helinski, Deputy State's Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

In this appeal the sole question is the legal sufficiency of the evidence to sustain the several convictions here involved.

On July 31, 1966, at approximately 12:15 A.M. White’s Tavern, located in Baltimore City, was robbed of $265. A patron testified that he heard someone in the rear of the Tavern say that this is a robbery; he turned and faced a gunman with whom he grappled and knocked to the floor, after which the gunman ran out the door, jumped into a 1964, two-door Chevrolet sedan. The witness pursued him, observed the number on the rear license tag, and thereafter gave the tag number and a description of the car to the police. Approximately an hour later the police located the unoccupied car parked some ten blocks from the scene of the robbery. The car had been stolen; the rear license tag was different than the front tag; and the tags had been stolen from separate owners.

Another patron testified that he saw someone rifling the cash register and that there were at least two other men involved in the holdup. He was asked if he saw any of the holdup men in court and answered: “Yes, I think it is this boy over here in front of me.” He was referring to Charles Thompson, the Appellant’s co-defendant who had been charged with the same offenses. The witness did not identify the Appellant.

The getaway car was processed for fingerprints and an impression of the Appellant’s right little finger was lifted from inside the left front window of the car. The fingerprints of “many others” were found but the individuals were not identified. As a result, the Appellant was charged with and convicted of armed robbery, larceny of the automobile and larceny of the license tags. He was sentenced to ten years, three years and one year on the respective convictions, the sentences to run concurrently.

On August 2, 1966, at about 6:00 P.M. an officer of the Baltimore City Police Department observed two individuals and the Appellant sitting in a 1965 Ford automobile sniffing paper bags which later were determined to contain glue. After attempting to flee on foot, the Appellant and Charles Thompson were apprehended and the third individual escaped. The automobile in which the three were sitting had been stolen. The Appellant was charged with and convicted of receiving stolen goods, i.e. the stolen automobile, and he pleaded guilty to the charge of sniffing glue. He was sentenced to two years and one year on the respective convictions to be served concurrently with the other sentences.

The State concedes that the only evidence to support the Appellant’s convictions of the armed robbery, larceny of the 1964 Chevrolet getaway car, and larceny of the tags thereon is the fingerprint impression found on the car and a newspaper clipping found on the Appellant at the time of his arrest which described the robbery of White’s Tavern. The State argues, however, that this evidence is legally sufficient to sustain the convictions. We disagree.

Recently, this Court has been called upon in several cases to discuss the application of the appropriate principles governing the use of fingerprint evidence. Musgrove v. State, 3 Md. App. 54; Hannah v. State, 3 Md. App. 325; Lawless v. State, 3 Md. App. 652; McCargo v. State, 3 Md. App. 646. In each case we have recognized the soundness of the rule enunciated in McNeil v. State, 227 Md. 298, where the Court of Appeals stated:

“It is generally recognized that fingerprint evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. 3 Wharton, Crinunal Evidence (12th ed.), sec. 982; II Wigmore, Evidence (3rd ed.), §414.”

In Lawless, supra, Judge Orth, in speaking for this Court said:

“From the cases considered, we think it clear that the ‘fingerprint evidence found at the scene of the crime’ as stated in the rule enunciated in McNeil v. State, supra, refers only to that evidence which proved that the print was that of the accused. Thus, the ‘circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime’ need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, [footnote omitted] that the accused was the criminal agent.”

Thus, the issue to be determined in the case at bar is whether the evidence of the attendant circumstances with respect to the finding of the Appellant’s fingerprint shows that he was present at the time the crimes of robbery, larceny of the Chevrolet and larceny of the tags were committed, or otherwise stated, is there present in this case, evidence of other circumstances tending to reasonably exclude the hypothesis that the Appellant’s fingerprint was impressed at a time other than the time when the crimes were committed. The only evidence tending to fix the time and the circumstances under which the fingerprint impression was placed on the car was the Appellant’s exculpatory explanation. He denied any part in the robbery of the tavern or the theft of the car and tags and accounted for the presence of his fingerprint on the car by asserting that about 7:00 P.M. on the evening of the robbery (some five hours before it was committed) a friend of Thompson’s, who was sitting in the car, called to him and Thompson as they were walking by the car, whereupon he entered the vehicle for a few minutes while Thompson stood on the left side. After talking briefly with the individual in the car, he and Thompson left to go to the latter’s sister’s home. The trier of facts was not, of course, required to believe the Appellant. Logan v. State, 1 Md. App. 213. His explanation, on the record, nevertheless, remains uncontroverted.

Other than the Appellant’s fingerprint on the getaway car, the only other evidence remotely connecting him with the robbery and the larcenies was his possession of the newspaper clipping relating to the robbery. Although the owner of the tavern and two patrons testified on behalf of the State, they were not able to identify the Appellant as one of those participating in the robbery. Thus, the robbery convictions were based solely upon circumstantial evidence. “And when guilt is based solely on circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” Vincent v. State, 220 Md. 232.

The finding of the Appellant’s fingerprint on the getaway car under the circumstances here present, accompanied by no other evidence than possession of the newspaper clipping may give rise to a strong suspicion of his guilt but do not, in our opinion, amount to circumstances which exclude every reasonable hypothesis or theory of the Appellant’s innocence. Accordingly, his convictions of armed robbery, larceny of the 1964 Chevrolet automobile and the license tags will be reversed.

There remains for consideration his conviction of receiving stolen goods, i.e. the Ford automobile in which he was sitting sniffing glue at the time of his apprehension. The officer who apprehended the Appellant testified that as he approached the car, he observed two boys sitting in the front seat and the Appellant sitting in the rear seat. All were sniffing glue and all ran as he approached. The Appellant was apprehended after a short chase. On the witness stand, the Appellant asserted that he did not know that the car had been stolen; that he had been sitting in it for about a half hour prior to the officer’s arrival; that he did not know who owned the car; that he had never been in the car before; and that he did not have a driver’s license and did not know how to drive.

It is apparent that the only evidence produced by the State which tends to support the Appellant’s conviction of receiving stolen goods was his presence in the stolen car under the foregoing circumstances. If, therefore, the conviction is to be sustained, the facts must be such as to bring the case within the well established rule that when an accused is found in unexplained and exculpatory possession of recently stolen goods, an inference of fact may be drawn which, if the circumstances revealed by the testimony so indicate, will support a conviction of receiving stolen goods. Anglin v. State, 244 Md. 652. Before such an inference can arise, however, the possession of the goods must be accompanied by the three essential ingredients upon which the rule is based. The evidence must demonstrate (1) that the goods were recently stolen, (2) that their possession is unexplained, and (3) that the possession is exclusive.

In the case at bar, the ownership, value and description of the stolen car were stipulated by the State and the defense. The record, however, is absolutely silent as to the date the car was stolen. Thus, one of the essential elements required by the rule is lacking in this case, i.e. there is no evidence that the car was recently stolen. Lacking this element, the inference of guilt is not properly supported by the facts essential to the application of the rule. Since this was the sole basis of the lower court’s judgment of conviction, the conviction must be set aside. In view of our holding in this regard, it is unnecessary to determine whether on this record the second and third requirements of the rule were satisfied by the State.

Judgments reversed and new- trial awarded.

      . No complaint is made in this appeal with respect to the conviction of sniffing glue.


text:
    GEORGE McMILLAN v. STATE OF MARYLAND
    [No. 195,
    September Term, 1967.]

      Decided April 16, 1968.

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

      James C. Chapin for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s Cotmty, and Vincent J. Femia, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee. •
   Thompson, J.,

delivered the opinion of the Court.

George McMillan, the appellant, contends that his conviction of armed robbery must be reversed because the State did not prove the allegations in the indictment that he feloniously did rob Irene K. Hale and violently did steal from her forty-five dollars, the property of High’s Dairy Products Division of Capitol Milk Producers Co-operative, Inc., a body corporate t/a High’s Dairy Store. Specifically he contends that the ownership by the corporation was not proven. Since it was not necessary to allege ownership it is obvious that it was not necessary to prove it. The statutory form of indictment for armed robbery, Md. Code, Art. 27, § 489, as well as the statutory form for robbery, Md. Code, Art. 27, § 487, do not require an allegation of ownership. The Court of Appeals of Maryland in Lee v. State, 238 Md. 224, 208 A. 2d 375, and Sippio v. State, 227 Md. 449, 177 A. 2d 261 held that proof of ownership was not required. This Court made the same holding in Harrison v. State, 3 Md. App. 148, 238 A. 2d 153. What the cases do require is that the victim be the owner or have a legal interest or special property in what was stolen as for example be in “lawful possession as bailee.” On the issue of lawful custody of the victim the evidence here was clear and convincing.

The testimony of Irene Hale was as follows :

“Q. Where are you employed?
“A. By High’s Dairy at Eastover Shopping Center.
“Q. Is that a corporation?
“A. Yes, it is.
“Q. How long have you been employed by High’s ?
“A. 1 have been with them a little over four years.
“Q. Always at Eastover ?
“A. No.
“Q. Were you so employed on the evening of September 21st, 1966?
“A. I was, yes.
“Q. Did you have occasion on that evening to see Mr. McMillan?
“A. Yes, I did.
“Q. Tell the jury, if you will, the occasion of your seeing him that evening.
“A. Well, I was working alone. I had been alone in the store since in the afternoon when the manager left
“Q. Who did the money belong to ?
“A. To High’s.
“Q. That is the same corporation you work for ?
“A. Yes, it is.”

McMillan, in proper person, alleges that he was denied “due process and equal protection under the Fourteenth Amendment of the United States Constitution” in the manner in which the Grand and Petty Juries were selected. He did not comply with Maryland Rules 725 and 744 requiring that such challenges be made prior to trial. The issue was not presented to the tidal court so we are ordinarily precluded, under Maryland Rule 1085, from considering it. Anticipating our decision, McMillan alleges that these rules are unconstitutional citing no authority therefor. State procedural requirements have been upheld by the Supreme Court of the United States. See Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933, n. 9; Henry v. Mississippi, 379 U. S. 443, 448, 85 S. Ct. 564, 567, 13 L. Ed. 2d 408.

In a supplemental paper McMillan makes other allegations. Under Maryland Rule 1031 we need not consider issues which are not presented and argued in the briefs. In addition these issues were not presented to or ruled on by the trial court.

Judgment affirmed.

      . “In any indictment or warrant for robbery with a dangerous or deadly weapon and attempt to rob with a dangerous or deadly weapon, it shall be sufficient to use a formula substantially to the following effect: ‘That A-B on the - day of -, 19—, in the County (City) aforesaid feloniously with a dangerous and deadly weapon did rob C-D (or did attempt with a dangerous and deadly weapon to rob C-D, as the case may be) and violently did steal (or attempt to steal, as the case may be) from him - dollars (here list property stolen); contrary to the form of the Act of Assembly in such cases made and provided and against the peace, government and dignity of the State.’ ” Md. Code, Art. 37, § 489.

      . It should be noted that even a thief can be the victim of a robbery, 2 Wharton Criminal Law and Procedure § 563. The important element is that the evidence must show that the robber did not have a right to possession superior to that of the victim.


text:
    THOMAS FREDERICK VEIHMEYER v. STATE OF MARYLAND
    [No. 169,
    September Term, 1967.1

      Decided April 18, 1968.

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

      Joseph A. Kenary for appellant.

      Henry J. Frank el, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State's Attorney for Montgomery County, and Barry H elf and, Assistant State's Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Thomas Frederick Veihmeyer, the appellant, complains of a conviction of robbery with a deadly weapon and assault and battery in a jury trial in the Circuit Court for Montgomery County. He alleges that there was a failure to suppress evidence obtained as a result of an illegal arrest; that the trial judge made a prejudicial remark in the presence of the jury; that the gun and bullets, offered into evidence, were admitted without a sufficient showing of their connection with the appellant ; that a police officer was allowed to testify as to an unauthenticated telephone conversation between the officer and the victim of the robbery who in the conversation reported the robbery.

In the early morning of July 26, 1966 Mr. Stephen Lansing, an attendant at the Lansing Service Station in Montgomery County, Maryland, was cleaning up the station when a 1963 white Chevrolet convertible with a black top, occupied by two men, drove into the station. The driver got out, asked him for the key to the rest room and one dollar’s worth of gasoline. After returning from the rest room, the driver came into the station office and gave the attendant a $10 bill in payment for the gas. When the attendant opened the cash register, the driver attempted to take money out of the register. The attendant resisted until the passenger appeared and pointed a pistol at him. The attendant was forced into a back room, tied up, and some of the stock and inventory piled on top of him. After taking the money ($86.00) out of the cash register, the two men left. The attendant managed to get to a telephone, call the county police, and report the robbery. He gave a description of the men and the car to the police, and while he was still talking on the phone, a police cruiser arrived on the scene. The next time he saw the two men was at 8:00 A.M. the same morning when he was brought to a police substation, where he identified the two men in a line-up, Veihmeyer being one of them. He also identified Veihmeyer at the preliminary hearing, and at the trial, as the driver.

Officers Tihila and Kiliany, of the Montgomery County Police, were cruising when they observed a 1963 white Chevrolet convertible with a black top. It fitted the description of a “lookout” which they had received from their dispatcher in reference to an armed robbery that had recently occurred. They gave chase, but they were unable to approach the vehicle until it came to rest behind the Governor’s House Motel. In the darkness they heard two people running from the auto, each in a different direction. Officer Tihila caught one, a Norman Bork; the other escaped. The officers transported their prisoner to a substation, and were ordered to return to the scene to search for a weapon. On the return trip, while stopped for a traffic signal, they observed a passenger in a taxicab, which had driven up alongside their vehicle, attempting to hide his face. The passenger was wearing clothing similar to the description given to them over the “look-out.” They stopped the cab and interrogated the passenger. Because of the similarity to the broadcast description and a scratched arm (similar to Bork’s), and his wet boots (the ground around the area where the 1963 Chevrolet came to a stop was wet) they arrested the suspect, who was later identified in a line-up by Lansing. The suspect was the appellant, Veihmeyer.

In the meantime, the police had searched the grounds behind the Governor’s House Motel, where the 1963 Chevrolet had been found, and discovered a pack of cigarettes within a cellophane wrapper in the glove compartment of the auto. The wrapper was dusted for fingerprints and the fingerprints of the appellant were found thereon. The auto had been “hot-wired,” and did not belong to either suspect. A pistol and shells were discovered near the automobile approximately 36 hours later.

Veihmeyer testified and denied any participation in the crime.

Veihmeyer’s first contention is that his arrest was illegal and therefore the admission into evidence of a photograph of the line-up was a result of the illegal arrest and therefore not admissible under the “fruit of the poison tree” doctrine cited by the Supreme Court in the case of Wong Sun v. United, States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441. At the time the photograph was offered into evidence, the only objection was based upon the authenticity of the photograph. Therefore this issue is not properly before this court. Maryland Rules 522 d 1 and 725 f (which applies the civil rule to criminal trials.) Wilt v. Wilt, 242 Md. 129, 218 A. 2d 180. There was a subsequent motion to suppress the evidence. This, however, came too late. See Maryland Rule 729.

In Tender v. State, 2 Md. App. 692, 237 A. 2d 65 we decided that the doctrine of Wong Sun did not apply to prosecutions in the state courts and we adopt completely the statement made then which is equally applicable to the facts of this case. See 2 Md. App. 692 at 696:

“B. The basis of the contention of the appellants that the in-court identifications of them and testimony relating to the identifications of them at lineups were inadmissible as resulting from an illegal arrest is under the doctrine of Wong Sun v. United States, supra, and the cases following its principles. It has been held that the doctrine of Wong Sun was not intended to, and does not, control prosecutions in state courts, Crowe and Williston v. State, 240 Md. 144, 150, and this Court has held that Mapp v. Ohio, 367 U. S. 643 did not compel the exclusion of testimony as to the identification of an accused in a lineup, as such testimony was not ‘tangible’ evidence which was the fruit of an unlawful search. Nadolski v. State, 1 Md. App. 304, 308. There is nothing per se unconstitutional about a lineup and it is not here alleged that the lineups were unfair or unreliable. See Powell v. State, 1 Md. App. 495. We find that the in-court identifications and the testimony as to the identifications of the appellants at the lineups were properly admissible under the rules of law then applicable, even assuming that the arrests were illegal.”

There is no contention here that the line-up was in any way illegal. Assuming, without deciding, that the arrest was illegal, there was no error.

During the trial of the case when the police officers were-describing the fleeing occupants the trial judge remarked to the-police officer on the witness stand “the one that got away was. the defendant in this case” to which the witness replied “yes. sir.” On defense counsel’s motion, the remark and the reply were both stricken from the record and the jury was instructed' to disregard it. Since the trial judge granted all the relief that was requested there is nothing before this court to review,. Maryland Rule 1085. A reading of the record, however, indicates that the judge was simply trying to clarify the situation. We think his prompt action in striking the remark and the testimony from the record was all that was required. Dresbach v. State, 228 Md. 451, 180 A. 2d 299, Daniels v. State, 213 Md. 90, 131 A. 2d 267.

Veihmeyer next objects to the admission into evidence of the pistol and bullets on the basis that they were not sufficiently connected with the appellant. We think the fact that the victim< testified that the pistol “looked like the same type of gun that was. used” by Bork; that Veihmeyer was with Bork when the gun. was used during the robbery; that they, Bork and the appellant, were in a 1963 white Chevrolet convertible with a blacktop similar to the one chased by the police and found at the-rear of the motel; and that the exhibits were found near where-the automobile had been abandoned is sufficient to meet this. objection. In addition the evidence showed that Veihmeyer’s fingerprint was found on a package of cigarettes in the glove compartment of the automobile. Exhibits need not be connected with a defendant with certainty; reasonable probability is all that is required, Stewart v. State, 1 Md. App. 309, 229 A. 2d 727.

Finally Veihmeyer objects to the admission of the police officer’s testimony concerning the telephonic report he received from the victim reporting the robbery. The basis for the objection is that the phone call was not authenticated and that it was inadmissible as hearsay. We see no error for a number of reasons. Hearsay testimony is admissable for the purpose of proving probable cause for an arrest. Scott v. State, 2 Md. App. 705, 237 A. 2d 79. The telephone call was authenticated in the best possible manner when the police officer arrived at the scene ■of the crime while the victim was still reporting the robbery on the telephone. Also the victim was allowed to testify, without •objection, as to the description he reported to the police. We ■are unable to see any prejudice to the appellant’s case by the police officer repeating the description that he had received from 'the victim. The testimony was merely cumulative and the ad-mission of hearsay under these conditions is not error. Lewis v. State, 2 Md. App. 318, 234 A. 2d 487.

Judgments affirmed.

      . Although the appellant did not raise the issue of probable ■cause as to the admission of the photograph at the trial below, he did raise the question of probable cause on the issue of the admis-sibility of the fingerprint. Although this issue was not raised on -appeal it is governed by the same rule discussed above on the -admission of photograph of the line-up.