text:
    JAMES LeROY TYLER v. STATE OF MARYLAND
    [No. 381A,
    September Term, 1967.]

      Decided October 9, 1968.

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

      Leonard R. Goldstein for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Vincent J. Femia, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

On the night of June 27, 1967, Meade’s Liquor Store in Prince George’s County was held up by two men, one of whom held a gun on Francis Krahling, the store manager, directed him to open the cash register and then shot him in the foot. Krahling described the man who shot him to the police shortly after the robbery as being a light complected Negro male, approximately 5'7" and between twenty-five and twenty-seven years of age. Krahling was unable to give police any description of the second robber.

The day following the robbery, Krahling was shown eight to ten photographs of Negro males from which he picked out the appellant as the man who held the gun on him during the robbery. Appellant was arrested on June 30, 1967 in the District of Columbia and after his request for counsel was denied by that jurisdiction, he was promptly transported to Prince George’s Comity where he made two more requests for immediate ap2)ointment of counsel, both of which were also denied. On July 3, 1967, a preliminary hearing was held in the People’s Court for Prince George’s County at which appellant was not represented by counsel. Francis Krahling attended the preliminary hearing and identified appellant as one of the men who had robbed him. Appellant was subsequently indicted on August 7, 1967 and charged with robbery with a deadly weapon and related offenses, all in connection with the liquor store robbery on June 27. Counsel on behalf of appellant thereafter entered his appearance and the case came on for trial on September 14, 1967 before a jury in the Circuit Court for Prince George’s County.

At the trial, the State on direct examination established the corpus delicti through the testimony of Francis Krahling, who also made an in-court identification of the appellant as the person who had robbed him. No objection was interposed at that time by the appellant to the in-court identification. On cross-examination, however, it was brought out that Krahling had made an extrajudicial identification of appellant by photograph and had also identified him at the preliminary hearing. It was Krahling’s testimony that he was in the courtroom for the preliminary hearing when the appellant, dressed in blue denim, was brought through a side door with another man, after which he stood with other men whom he believed to be “officers of the court.” Krahling testified that he knew at that time that he was to be a witness in a case involving James Tyler (the appellant) ; that he heard appellant’s name called out in court, heard the reading of the charge against appellant by the Clerk to the effect that appellant had robbed Krahling; and that he observed appellant sitting at the table alone near the witness stand. Krahling further testified that he was asked at the preliminary hearing whether he had seen appellant before, to which he responded that he was the man who had robbed him on June 27; that he had observed appellant’s face at the preliminary hearing and did not “positively identify him until I got around and looked right at his face.” Testifying on his photographic identification of appellant, Krahling stated that he had picked him from eight to ten photographs of Negro males and that there was “no question” in his mind that the photograph he selected was of the man who robbed him.

Appellant moved to strike the identification evidence resulting from the confrontation at the preliminary hearing on the ground (a) that his right to counsel at the preliminary hearing was denied in violation of the sixth amendment to the federal constitution, and (b) that the in-court identification was inadmissible as it was tainted by the illegal extrajudicial identification made at the preliminary hearing. The motion was denied and appellant was subsequently convicted by the jury of robbery with a deadly weapon and sentenced by the court to ten years imprisonment.

Appellant contends on this appeal, as he did in substance below, that the State’s failure to provide counsel for him as an indigent accused at the preliminary hearing was a denial of his constitutional right to counsel in that he was denied the right to adequately cross-examine the State’s witness and consequently was denied the right to discover}’ of the State’s case. More specifically, he maintains that where an accused has counsel to represent him at the preliminary hearing, he is thereby afforded an opportunity, through cross-examination of the State’s witnesses, to learn more of the State’s case and is thus better enabled to prepare a more intelligent defense — one which includes the opportunity to use testimony of the State’s witnesses at the preliminary hearing for impeachment purposes at the trial. Appellant urges that as these rights and advantages accrue to the accused who is financially able to employ counsel to represent him at the preliminary hearing, it is a denial of the equal protection clause of the fourteenth amendment not to afford indigent accused persons with counsel at the preliminary hearing, viz., that the classification thus drawn constitutes an invidious discrimination based solely on the ability to pay.

That an indigent accused in a serious State criminal prosecution has an absolute constitutional right to have counsel appointed for his defense at his trial is settled beyond question. Gideon v. Wainwright, 372 U. S. 335; Manning v. State, 237 Md. 349; Wayne v. State, 4 Md. App. 424. The right is one which extends only to “critical” stages of the proceedings against the accused. McClelland v. State, 4 Md. App. 18; Blake v. State, 2 Md. App. 492. It has been repeatedly held that the preliminary hearing under Maryland law is not of itself such a critical stage in the judicial process. DeToro v. Pepersack, 332 E. 2d 341, cert. den. 379 U. S. 909; Pressley v. Warden, 242 Md. 405; Hannah v. State, 3 Md. App. 325; State v. Hardy, 2 Md. App. 150; Crumb v. State, 1 Md. App. 98. In Timbers v. State, 2 Md. App. 672, we specifically held that the preliminary hearing was not a critical stage in the proceeding merely because, in the absence of counsel, the accused’s ability to discover the State’s case and to cross-examine the State’s witnesses would be more limited than if he had counsel representing him at the hearing. We pointed out in Timbers that it is not the purpose of the preliminary hearing to provide a forum for discovery and that while it does afford, as an incidental by-product, some opportunity for discovery, the Constitution does not require, for that reason, that counsel be appointed at such a non-critical stage of the proceeding. See also Mason v. State, 2 Md. App. 768. Adhering to these views, we conclude that appellant was not for the reasons asserted by him denied his constitutional right to counsel at a critical stage of the proceedings against him.

Appellant next contends that even though the preliminary hearing may not always constitute a critical stage of the proceedings, when events transpire there that are likely to prejudice the ensuing trial, then the preliminary hearing does become “critical” and the accused who is subjected to such a proceeding in the absence of counsel is denied his constitutional right to counsel under the sixth amendment. For this proposition appellant relies' upon United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263. He urges that where one of the purposes of the preliminary hearing is to have the victim or other witnesses identify the accused as the criminal agent, this is an event likely to prejudice the ensuing trial since once such an identification has been made, the witness will not ordinarily change his mind so that, for all practical purposes, the matter of identification has been established before trial. Under these circumstances, appellant contends that the presence of counsel at the preliminary hearing is necessary to guard against the possibility of suggestive, unfair and prejudicial identification procedures derogating from the accused’s basic right to a fair trial free of improper influences. For these reasons, appellant asserts under Wade' and Gilbert that the preliminary hearing, where an identification is made, is a critical stage of the criminal prosecution requiring the appointment of counsel for an indigent accused, and that where the State so fails to afford counsel the subsequent conviction of the accused is void.

We hold that nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made. In Tender v. State, 2 Md. App. 692, we said that the precise holdings in Wade and Gilbert were that a post indictment lineup held after June 12, 1967/at which the accused was exhibited to identifying witnesses, was a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of counsel denied the accused his sixth amendment right to counsel and called in question the admissibility at trial of the in-court identification of the accused by witnesses who attended the illegal lineup; and that for such testimony to be admissible, it must be established by clear and convincing evidence that the in-court identification was based upon observations of the accused other than the lineup identification.

To comprehend the scope and reach of the Wade decision necessitates a full appreciation of its essential underpinnings. By way of a foundation for its decision, the Wade court found that “today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality” (at page 224); that in light of this reality, the sixth amendment right to counsel at critical stages of the prosecution is reached whenever counsel’s presence is necessary to assure “a meaningful defense,” the test thereof being, with respect to pretrial confrontations, “whether the presence of his counsel is necessary to preserve the defendant’s right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself” (at page 227) ; that the analysis to be made is one of “whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice” (at page 227) ; that the “confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial” (at page 228), and result in mistaken identification, particularly where there has been a “degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification” (at page 228). With these factors in mind, the Wade court concluded that in a lineup of suspects, or in a viewing of the suspect alone, there is a serious difficulty in depicting what actually transpired since “privacy results in secrecy” and the defense “can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial” (at page 230) ; that this is particularly so because those participating in a lineup with the accused are often police officers whose identity is otherwise unknown and, further, because the suspect, by himself, is unable to ferret out the existence of prejudicial confrontation conditions and is consequently unable “effectively to reconstruct at trial any unfairness that occurred at the lineup” (at page 232); and he is thus deprived of his only opportunity “meaningfully to attack the credibility of the witnesses’ courtroom identification” (at page 232). It is against this background that Wade then concludes that insofar as an accused’s conviction may rest upon a court room identification, in fact the fruit of a suspect pre-trial identification which the unrepresented accused is helpless to subject to effective scrutiny at his trial, he has been in substance deprived of his right of cross-examination, which is an essential safeguard to his right to confront the witnesses against him. Under such circumstances, Wade proceeds to its ultimate end — that “where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself” (at page 235) by assuring the right to the presence of counsel at such pretrial confrontations to “avert prejudice and assure a meaningful confrontation at trial” (at page 236).

We think it evident that Wade does not hold that all pretrial confrontations between the accused and the victim or other identifying witnesses are thereby deemed to be critical stages of the criminal prosecution. In our opinion, Wade indicates that only those pretrial confrontations that are not subject to fair and meaningful objective review later at the trial fall within its strictures, so that where the circumstances of the confrontation can be fully developed at the trial by cross-examination of the State’s witnesses, or by presentation of witnesses on behalf of the defendant, the right to counsel does not attach. Specifically, we hold that the rationale of Wade and Gilbert is not applicable to confrontations at a public pretrial judicial hearing presided over, as here, by a judicial officer since what occurred there is not only the antithesis of the “privacy results in secrecy” element highlighted in Wade, but the accused has the opportunity for “a meaningful confrontation” of the State’s case at the trial through the ordinary process of cross-examination of the State’s witnesses and the presentation of the evidence of his own witnesses, including, if necessary, the judicial officer who.presided at the hearing. Under these circumstances, the risk that counsel’s absence at the pretrial confrontation might in some way derogate from the accused’s right to a fair trial is minimal; the manner and mode of the identification at the preliminary hearing is capable of reconstruction at trial so that the trier of fact may, as was the case here, be in a position effectively to scrutinize the pretrial identification process as it affected the identification at trial.

Finally, appellant urges that the trial court erred in any event in admitting the in-court (trial) identification of the appellant by Kraliling since it was the product of the tainted pretrial identification at the preliminary hearing. He maintains that the fairness of this confrontation must be analyzed in light of the totality of the circumstances and that, so viewed, it was manifestly prejudicially inspired. He particularly points out that as Kraliling initially identified him from police photographs, Krahling knew that lie was a criminal and that the conditions under which he was seen by Kraliling at the preliminary hearing were obviously prejudicially suggestive and unfair. Under such conditions, appellant contends that his exhibition at the preliminary hearing was illegal and that the subsequent in-court (trial) identification “was come at by exploitation of that illegality” within the meaning of Wong Sun v. United States, 371 U. S. 471; and that, as such, the trial identification must be wholly excluded from evidence without affording the State an opportunity to show that the in-court identification had an independent source.

It has long been a recognized ground of attack upon a criminal conviction that the accused was subjected to a pretrial confrontation with the victim under conditions so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a denial of due process of law. Stovall v. Denno, 388 U. S. 293; United States v. Gilmore, 398 F. 2d 679 (7th Cir.), 3 Cr.L. 2399; Palmer v. Peyton, 359 F. 2d 199 (4th Cir.). While the identification, procedure at the preliminary hearing in this case leaves much to he desired, it is clear from the evidence that Krahling had previously made a photographic identification of the appellant as one of the robbers. The police practice of showing pictures of suspects to victims of crime, so long as the procedure used is not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” has been approved by the Supreme Court in Simmons v. United States, 390 U. S. 377. The record before us discloses no such “impermissible suggestiveness,” and, as we noted in Bever v. State, 4 Md. App. 436, the mere fact that an accused was identified from photographs shown to a witness by the police does not result in a conclusion by the trier.of fact that the accused has a criminal record. See also Austin v. State, 3 Md. App. 231. Nor do we think that Krahling’s identification at the preliminary hearing was in any proper sense “prejudicially inspired.” The witness was directly confronted by the appellant during the course of the robbery and had ample opportunity to observe his features. And he testified at the trial that he did not make a positive identification of the appellant at the preliminary hearing until, when on the witness stand, he “looked right at his face.” The fact that Krahling had made a previous photographic identification of the appellant and that he had an ample opportunity to observe him during the crime were factors specifically outlined in Wade as entitled to consideration in determining whether the in-court (trial) identification was independent of and unstimulated by the identification made at the pretrial confrontation. See McRae v. State, 3 Md. App. 388. On the record before us, we conclude that the trial identification of appellant was not the product of an unconstitutionally tainted pretrial confrontation.

Judgment affirmed.

      . Under Gilbert, testimony at the trial as to the making of an ■extrajudicial identification of the accused at an illegal lineup (as contrasted with testimony of identification of the accused only at the trial), is per se excluded, both at the guilt and penalty stage of the proceeding “as come at by exploitation of [the primary] illegality” and the State is therefore “not entitled to an opportunity to show that the testimony had an independent source.” Gilbert at page 273.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOSEPH CLARK v. WARDEN, MARYLAND PENITENTIARY
    [No. 4,
    September Term, 1968.]

      Decided October 10, 1968.

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

This is an application for leave to appeal from an order of Judge Joseph R. Byrnes, dated October 20, 1967, in the Criminal Court of Baltimore denying relief sought by the applicant in his fourth petition under the Uniform Post Conviction Procedure Act. The Court of Appeals of Maryland has twice denied his applications for leave to appeal — Clark v. Warden, 225 Md. 639; Clark v. Warden, 233 Md. 625 — and this Court denied his application for leave to appeal his third petition in an unpublished opinion filed May 12, 1967, (Clark v. Warden, No. 63, Initial Term, 1967).

This application (filed February 8, 1968) must be denied since it was not filed within thirty days from the passage of Judge Byrnes’ order as required by Maryland Code, Art. 27, Sec. 645 I and Md. Rule BK 46 a. See Bynum v. Warden, 230 Md. 631.

Application denied.


text:
    CARROLL HUGH BELL v. STATE OF MARYLAND
    [No. 18,
    September Term, 1968.]

      Decided October 10, 1968.

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

      Tticker R. Hearing for appellant.

      Thomas An Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant, fifteen years of age at the time of the alleged offenses, was tried by the court in the Criminal Court of Baltimore, found guilty of the following crimes and sentenced to imprisonment as indicated:

Indictment No. 1046 — robbery of (1st count) and assault upon (3rd count) Nova Ellis on 24 February 1966; 3 years as to the 1st count, 1 year on the 3rd count concurrent with 1 st count.
Indictment No. 1047 — robbery of (1st count) and assault upon (3rd count) Louise Curtin on 16 February 1966; 3 years as to 1st count, consecutive with indictment 1046, 3 years as to 3rd count consecutive with 1st count.
Indictment No. 2818 — assault (2nd count) upon Bonnie Neuwiller on 10 June 1966; 2 years consecutive with 3rd count of indictment No. 1047.
Indictment No. 2819 — robbery with a deadly weapon (1st count) of Muriel Kopacki on 10 June 1966; 15 years consecutive with indictment No. 2818.

On appeal he argues only that the lower court erred in denying a motion for judgment of acquittal as to the first count in indictment No. 2819 for the reason that the evidence was not sufficient to show that the robbery of Muriel Kopacki was with a dangerous or deadly weapon. He does not claim that the evidence was not sufficient to prove beyond a reasonable doubt the corpus delicti of that robbery and that he was the criminal agent, but he urges that the more severe penalty, authorized by Md. Code, (1967 Repl. Vol.), Art. 27, § 488 and imposed by the court, was improper because the robbery was not with a dangerous or deadly weapon.

Muriel Kopacki, an employee of the Maryland State Employment Service, testified that on 10 June 1966 about 8:00 A. M. she was walking up Chase Street across the grass plot by the Baltimore Life Building on her way to work. “I was approached by a young man behind me with a knife and he came up and he said for me to keep walking and don’t scream or I’ll cut your heart out. We walked over by the wall where the steps are at and he asked me to open my purse. I told him I didn’t have any money except a dollar. When I pulled it out I had $10 and he looked through my purse and we started up the steps toward the Maryland Employment Service. I guess he was going to walk me back. He told me not to tell anything about it because he’d find out. I told him I wasn’t worried about that. He said, real smart, ‘You’re not, are you.’ He said T always wanted to stab a white woman.’ He turned me around and he said we were going to walk down this alley toward Biddle Street. I told him I wasn’t going to go because he would stab me there. He said no, he wouldn’t stab me. So we walked down towards Biddle Street. We got down by the alley. He must have changed his mind. He kept walking me, and we got up by the B & O Building where there is a big hill and there’s a park there and he told me he knew a short cut to get me back to work and walked down the hill. I was expecting at that time, I told him I couldn’t get down the hill, it was too steep. He said O.K., he knew another way. He took me up, I don’t recall the name of the street we were walking, all around through the housing development. We finally wind up on a side street going toward the Maryland Building. He said that he was going to leave me there.” He took her watch and $10.00 but he gave the watch back to her when she told him that her husband had given it to her for a Christmas present and she wished he would give it back. She positively identified the appellant as the robber. She more specifically described the knife: “It was about the size of a butcher knife and it wasn’t new, it was more or less old, old looking. It wasn’t shiny or anything.”

The appellant claims that this evidence was insufficient to show that a dangerous or deadly weapon was used because the exact size of the blade was not given “and under the statute the blade to the weapon would have to be 6 inches or more” (Code, supra, Art. 27, § 488 does not so provide and the appellant cites no case, nor do we know of any, so holding) and because the knife was not produced at the trial (the testimony of the victim, if believed by the court, was sufficient to establish the existence of the knife). It is sufficient under the statute to show that the weapon is either dangerous or deadly, Hayes v. State, 211 Md. Ill, and a knife may be either a deadly weapon or only a dangerous one, depending on the size of the blade and the manner of its use, Hobbs v. Pepersack, 301 F. 2d 875 (4th Cir. 1962). In the circumstances here the exact size of the blade was not material although on cross-examination of the witness at the trial defense counsel brought out that the witness described the knife in her complaint to the police as “a large dirty knife.” Intimidation produced by the use of a weapon, coupled with the apparent ability to execute the implied threat to use it if resistance is offered, are sufficient to establish that a robbery committed was with a dangerous or deadly weapon. Crum and Dunbar v. State, 1 Md. App. 132, 134. We have no difficulty in determining that, on the evidence before the lower court, its finding that the appellant robbed Muriel Kopacki with a dangerous and deadly weapon was not clearly erroneous and therefore w^e may not set aside the judgment. Md. Rules, 1086. We find no error in the denial of the motion for judgment of acquittal.

Although the point above disposed of was the only point argued on appeal, both in the brief and orally, the brief presents the question, “Was there legally sufficient evidence in this case with which the Court could find the defendant guilty on each count in the indictments.” We have carefully reviewed the record and find that as to each offense of which the appellant was convicted the evidence was legally sufficient to prove beyond a reasonable doubt both the corpus delicti and the criminal agency of the appellant.

Judgments affirmed.

      . As to indictments Nos. 1016 and 1047 the appellant was presented on 1 March 1966 and indicted on 10 March, the Circuit Court of Baltimore City, Division for Juvenile Causes, having waived jurisdiction on 25 February. On 29 April recognizance was taken and he was on bail at the time of the offenses charged in indictments Nos. 2818 and 2819, filed 21 June 1966, jurisdiction of the juvenile court as to those offenses having been waived on 33 June. ’

      . So, within the meaning of the statute, an unloaded pistol is a dangerous weapon, Jackson v. State, 231 Md. 591, and a loaded pistol is a deadly weapon, even if not fireable, Myers v. State, 237 Md. 632.


author: PkR Curiam.

text:
    WILLIS CASE ROWE v. WARDEN, MARYLAND PENITENTIARY
    [No. 36,
    September Term, 1968.]

      Decided October 10, 1968.

    Before Murpity, C.J., and Anderson, Morton, and Orth, JJ-
   PkR Curiam.

Willis C. Rowe was found guilty of murder in the second degree in the Criminal Court of Baltimore on 29 June 1965. He was sentenced to imprisonment for a term of 18 years, the sentence to date from 13 May 1958. There was no appeal from this judgment. The docket entries show that a petition under the Uniform Post Conviction Procedure Act was filed on 5 October 1965 and was withdrawn upon motion of the applicant by order of the Criminal Court of Baltimore on 15 November 1965. On 26 December 1966 a second post conviction petition was filed in proper person and answered by the State on 30 December. It made the bald allegations that the petitioner had been “subjected to double jeopardy,” been denied a speedy trial, been “subjected to cruel and unusual punishment” and “in other words, and in sundry respects * * * been denied due process and the equal protection of the laws.” It asserted that it was “in effect solely an appeal from the proceedings in the Maryland Court of Appeals, and hence from the logical consequences of those proceedings” and that the petitioner did not “now allege errors on the part of the Baltimore City Criminal Court, since the Court was bound to implement the erroneous decision and mandate of the State’s highest Court.” It concluded that the issues “are res judicata, locally, and hence this petition is subject to being dismissed now.” On 10 January 1967 Rowe filed in proper person a “Motion to Dismiss,” stating that the State’s answer to his petition averred that “ ‘the alleged errors have been previously and finally litigated’ locally” and “that for the second time the petitioner agrees with this allegation.” He concluded that the court “is without legitimate power to stir up litigation or to insist in any way upon a quarrel in a case where the parties have agreed, as here — twice over — that they have no justifiable dispute.” On 31 January Judge James K. Cullen, presiding in the Criminal Court of Baltimore dismissed the petition upon Rowe’s motion but “expressed no opinion as to the question of whether the alleged errors * * * have been previously and finally litigated.” Under the same date the court amended its original opinion “to the extent that it will dismiss, with prejudice, the Petition of Willis C. Rowe for relief under the Uniform Post Conviction Procedure Act,” noting that it had received correspondence from Rowe “which has persuaded this Court to reach the conclusion that the Petitioner is fully aware of his rights in this matter and is perfectly willing to freely and voluntarily waive any and all rights to a hearing on the issues presented by his Petition.” On 30 April 1968 Rowe filed a “Petition for Leave to Appeal from Denial of Post-Conviction Cause”; under date of 13 May 1968 he filed a “Second Petition for Leave to Appeal from Denial of Post-Conviction Cause”; and under date of 6 June 1968 he filed a “Third Petition for Leave to Appeal from Denial of Post-Conviction Cause.” We believe from these documents that Rowe is not seeking leave to appeal from the dismissal of his second post conviction petition of 26 December 1966 despite the title he has given the documents. And if the “petitions” are considered as application for leave to appeal from such dismissal they must be denied as not timely filed. Md. Rule, BK46a; Bynum v. Warden, 230 Md. 631. But in the first document Rowe refers to “his petition for habeas corpus” filed by him in the Circuit Court for Howard County, “anticipating prejudice in Baltimore.” He states that “on February 21, 1968 said Court referred the case to the Baltimore City Criminal Court — under ‘Rule Z 54’,” and complains that he has not received a hearing thereon. He prays “for leave to appeal from a de facto and manifestly illegal denial of his cause; that alternatively he prays for change of venue to some presumedly unprejudiced jurisdiction; that alternatively he prays for a writ of mandamus or similar order requiring the Baltimore Court to act forthwith.” In the second document he “incorporates * * * by reference all allegations” contained in the first document and complains that no action has been taken, pointing out that he has had no opportunity to elect whether his application is to be entertained as a proceeding under the Post-Conviction Procedure Act. See Md. Rule, Z 55. In the third document he alleges that about 16 May he “was brought, totally unprepared, and unrepresented or assisted by counsel, and without even the benefit of some responsive pleading from the State, before Judge James A. Perrott of the Baltimore Courts.” Judge Perrott announced that he would appoint Francis D. Murnaghan, Jr. as counsel for him. Hearing nothing further he wrote Mr. Murnaghan on 31 May and received a reply under date of 4 June that the judge did not expect to appoint Mr. Murnaghan as counsel but “does contemplate taking action in dtte course on the matter.” He received a letter through Judge Perrott’s bailiff on 4 June stating that “pursuant to Rule Z 55 — we are forwarding your case to the county wherein your conviction arose, which county will handle all matters relating to the proceeding, including the appointment of counsel.” He points out “that this petition for leave to appeal the de facto denial is emphatically not concerned directly with the previous proceeding dismissed ‘with prejudice’ * *

No appeal lies to this Court as sought by Rowe and we are without jurisdiction in the matter. Nor does the record before us show whether or not the allegations made are correct. We note, however, that the confinement, the cause of which Rowe is inquiring into, was the result of a conviction in the Criminal Court of Baltimore City and if an application for a writ of habeas, corpus was in fact made to a judge in the Fifth Judicial Circuit, that judge, in his discretion, could properly refer the application to any court in the Eighth Judicial Circuit in which Rowe was convicted. We further note that the court to which the application was so referred “shall act thereupon forthwith, and shall have no power to further refer or transfer the application.” Md. Rule Z 54.

Application denied.

      . The history of the case prior to this trial is set forth in Rowe v. State, 234 Md. 295. Bronza M. Parks was shot and killed on 13 May 1958. Rowe was indicted for the murder on 5 June 4958. Upon a plea that he was insane at the time of the commission of the alleged crime, he was sent to a State mental institution for examination and treatment, if necessary. In January 1960 he was transferred to Clifton T. Perkins State Hospital. In January 1962 the staff at Perkins found he was capable of standing trial and in July 1962 he was transferred to a jail to wait trial. He was tried in February 1963. The trial court accepted the verdict of the jury of guilty of murder in the second degree despite the fact that the jury had found on the issue of sanity that the defendant was insane at the time of the trial in addition to finding that he was sane at the time of the commission of the offense. On appeal from the judgment a majority of the Court of Appeals decided that the verdict of guilty on the issue of guilt or innocence and the sentence imposed be stricken but that the findings on the issues of sanity and insanity were to remain as entered. It remanded the case “for entry of an order staying the proceedings and committing the defendant to a mental institution until he shall recover his reason.” In 1965 the case was removed from the Circuit Court for Wicomico Couutj- for re-trial in the Criminal Court of Baltimore City.

      . Certiorari with respect to Rowe v. State, supra, was denied by the Supreme Court of the United States on 23 November 1964, 379 U. S. 924.

      . In a letter accompanying the petition, Rowe asserted that he was “a member of the bar, with three university degrees, including two law degrees.”


text:
    LEON RALPH HOPKINS v. STATE OF MARYLAND
    [No. 42,
    September Term, 1968.]

      Decided October 10, 1968.

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

      Stanley S. Cohen for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F. Moylan, Jr., State’s Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant was convicted of robbery with a dangerous and deadly weapon at a trial by the court in the Criminal Court of Baltimore and sentenced to imprisonment for a term of 15 years. On appeal from the judgment he contends that (1) the trial court erred in denying a motion to strike the testimony of Martin E. Spriggs, a witness for the State, and an alleged accomplice in the commission of the crime, and (2) the evidence was not sufficient to sustain the conviction.

(1)

The basis of the claim of error with regard to the first contention is the constitutional privilege against self-incrimination. Amendment V to the Constitution of the United States; Art. 22, Declaration of Rights, Constitution of Maryland. Here the privilege was not asserted by the appellant to bar his self-incrimination; he attempted to invoke the privilege as to the witness, Spriggs, who testified against him. But the privilege is a personal one, belonging to the witness, not to the appellant. It is intended for the witness only and does not involve any right of the appellant. The testimony given by the witness was not subject to objection on the ground of privilege at the instance of the appellant, but was competent evidence and admissible against him, if material. The materiality of the challenged testimony was not disputed at the trial nor is it alleged on appeal that it was not material. Even if a witness makes a claim of privilege and it is improperly disallowed by the trial court, it is not reversible error on behalf of the defendant. Butz v. State, 221 Md. 68; Boone v. State, 3 Md. App. 11. There was no error in the denial of the motion to strike the challenged testimony.

(2)

The appellant claims that the evidence was not sufficient to sustain the conviction for the reason that the testimony of the accomplice, Spriggs, was not corroborated. We agree that Spriggs was an accomplice but it is clear from the record, and the appellant does not argue to the contrary, that if Spriggs’ testimony may be properly considered, the evidence was sufficient to prove the corpus delicti of the crime of which the appellant was convicted and his criminal agency.

In Maryland a conviction may not be founded upon the uncorroborated testimony of an accomplice. Kitt v. State, 2 Md. App. 306, 310. Not much in the way of corroboration however, is actually required. Barton v. State, 2 Md. App. 52, 56. But the corroborative evidence must be as to some of the material facts which tend to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself. Boone v. State, supra, 19-20. “Whether the testimony has in fact been sufficiently corroborated must, of course, depend upon the facts and circumstances, and the inferences deducible therefrom, in each case.” Wright v. State, 219 Md. 643, 650.

In the instant case the substance of Spriggs’ testimony was that on 31 January 1964 about 12:50 P.M. he, the appellant and Ernest Terry went to the Keystone Realty Company in the 900 block of Whitelock Street “to rob a real estate office * * * We just rang the bell and the man let us in and we went in and robbed him, that’s all * * * We got him to open the safe and we tied him with adhesive tape.” They took money, money bags, an apron and a wallet from Mr. Katzoff. “We had knives.” They went to Terry’s house and split up the money, Terry keeping the Masonic apron and the wallet. Spriggs and the appellant left, went down to North and Mt. Royal Avenues and were arrested.- The victim, Robert D. Katzoff, testified that he was the office manager of a real estate business at 907 White-lock Street. On 31 January 1964 about 12:50 P. M. the doorbell rang, he answered the door and admitted three men who said they were interested in renting an apartment. “At this point I was surrounded by the three men and I was threatened with a knife and told that I should give them my wallet, which I did.” They then made him open the safe and give them the contents. There was $10 in the wallet and $250 in the safe. They also stole a Masonic apron and a small black revolver. The robbers then taped his hands behind his back, taped his mouth, cut the telephone wires and left. One of the men was wearing an army fatigue jacket and another had on “a kind of grey sweatshirt.” All three were “colored men.” Katzoii was able to free himself in five or ten minutes, went to a store across the street and called the police. He identified Spriggs and Terry at a prior trial as two of the robbers but could not now positively identify the appellant as the third man. The police responded to the call and received information from Katzoff. A description of the robbers was put on the police radio. Sergeant Ernest Schaefer of the Baltimore City Police Department heard the lookout about 1:00 P. M. The robbers were described as “colored.” One was described as wearing “a cream colored jacket with khaki trousers” and another was wearing a fatigue jacket. About 1:10 P. M. he saw two men answering the description walking together at the intersection of Mt. Royal and North Avenues. They were the appellant and Spriggs and they were arrested. A paring knife was found on the appellant and a butcher knife and a .32 caliber dark colored pistol was in the possession of Spriggs. Terry was arrested later that day. In his apartment the police found the Masonic apron and the victim’s wallet.

Sergeant Schaefer’s testimony placed the appellant and Spriggs together shortly after the crime, thus independently showing the appellant’s identification with one of the perpetrators of the crime under circumstances corroborative of the accomplice’s testimony. This was sufficient corroboration of the accomplice’s testimony. See McKenzie v. State, 236 Md. 597; Barton v. State, supra; Kitt v. State, supra.

Judgment affirmed.

      . The appellant and two co-defendants, Martin L,. Spriggs and Ernest R. Terry, had been previously convicted of this crime. The appellant and Terry appealed and the judgments were affirmed by the Court of Appeals. Hopkins and Terry v. State, 339 Md. 317. Subsequently the appellant, under the decision in Schowgurow v. State, 240 Md. 121, obtained a new trial. It is the conviction and sentence at that trial from which he now appeals.

      . Not only had Spriggs been convicted in 1964 of the crime about which he was called upon to testify in the instant case but when he stated to the trial court that he did not desire to testify, the court appointed counsel to represent him. After conferring with his counsel he told the court that he wished to testify. The appellant argues on appeal that Spriggs’ decision to testify was the result of a mistaken impression by his counsel that he had pleaded guilty to the crime. Counsel, in reporting to the court with regard to his conference with Spriggs, stated that Spriggs told him he had pleaded guilty but thereafter the State brought to the attention of the court that this was not correct and that the witness had been tried by the court and found guilty. In any event, the reason why Spriggs testified is not material or relevant to the question of the denial of the motion to strike his testimony on the ground of s elf-in crimination.


text:
    MORRIS T. WOOD v. DIRECTOR, PATUXENT INSTITUTION
    [No. 166,
    September Term, 1967.]

      Decided October 10, 1968.

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

This is an application for leave to appeal from a denial of post conviction relief by Judge Robert E. Clapp in the Circuit Court for Frederick County. The issues raised by the applicant were fully treated by Judge Clapp and, ordinarily, the application for leave to appeal would be denied for the reasons set forth in the lower court’s Memorandum.

However, the record indicates that the applicant’s present confinement results from an original charge of assault and battery to which charge he entered a plea of nolo contendere. Following the acceptance of this plea, a verdict of guilty was entered on the docket and the applicant was sentenced to three years in the Maryland Institution for Men. Thereafter, he was determined to be a defective delinquent and is now confined in Patuxent Institution.

Judge Clapp points out in his Memorandum that under Maryland Rule 723 c, the Court, following the entry of a plea of nolo contendere, shall determine and impose sentence as on a plea of guilty, “but without finding a verdict of guilty.” Accordingly, Judge Clapp ordered stricken from the record the verdict of guilty which had been found by the trial judge and entered on the docket, contrary to Rule 723 c.

Since Section 6 of Article 31 B of the Annotated Code of Maryland would appear to make conviction for a crime or offense, as defined therein, a prerequisite to activating the defective delinquency proceedings contemplated by the Statute, the case will be remanded for a finding by the lower court of the effect, if any, that the acceptance of the applicant’s plea of nolo contendere may have upon the validity of his confinement in Patuxent Institution.

Case remanded for further finding by the lower court in accordance with this opinion.


author: Murphy, C.J.,

text:
    MILTON GORDON v. STATE OF MARYLAND
    [No. 366,

    September Term, 1967.]

      Decided October 10, 1968.

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

      Karl G. Feissner and Thomas P. Smith, with whom were William L. Kaplan and Raymond S. Smithurst, Jr., on the brief, for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and William M. Cave, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

The appellant Milton Gordon, an attorney and a partner in the law firm of Gordon & Myers, with offices located in Montgomery County, Maryland, was convicted of embezzlement on October 4, 1967 by a jury in the Circuit Court for Somerset County, the trial having been removed to that jurisdiction from the Circuit Court for Montgomery County at appellant’s request. He was sentenced to five years under the jurisdiction of the Department of Correction.

The indictment returned against appellant contained three counts — embezzlement, larceny after trust, and larceny. The larceny count was abandoned by the State at the trial, and the jury returned a not guilty verdict on the count charging larceny after trust. The embezzlement count of the indictment, upon which appellant was convicted, charged that on September 8, 196.6 and then continually until December 23, 1966, he did “unlawfully embezzle from Raymond Francis Scholl, Jr. and Mary E. Scholl” the sum of $13,895.04, “in violation of Article 27, Section 129, of the Annotated Code of Maryland.” Insofar as pertinent, Section 129 provides:

“Whosoever * * * being employed for the purpose or in the capacity of a cashier, servant, agent, officer or clerk, by any person or body corporate shall fraudulently embezzle any money * * * which * * * shall be delivered to or received, or taken into possession by him, for or in the name or on account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer, although such money * * * was not received into the possession of such master or employer, otherwise than by the actual possession of his cashier, servant, agent, officer, clerk or other person so employed, * * *.”

The facts essential to a determination of the merits of the appeal are these: In August of 1966 Mr. and Mrs. Clarence L. Ranck listed their residence property in Rockville, Maryland, for sale with R. E. Smith, a real estate broker. The Ranck property was then encumbered with a first trust (mortgage) held by Emigrant Industrial Savings Bank (Emigrant) in the approximate amount of $14,000.00. Within a day or so after the property was listed, Smith procured Raymond and Mary Scholl as purchasers for the Ranck property, and a contract of sale was concluded, the purchase price being $19,950.00. At Smith’s suggestion, the Scholls went to the offices of Bogley, Harting, Ma-honey and Lebling, Inc. (Bogley), a mortgage lending firm, to obtain the necessary financing for the property. Bogley agreed subject to certain conditions, to make a VA guaranteed loan to the Scholls in the amount of the purchase price of the property, vis., $19,950.00.

Settlement for the property was to be held at the law offices of Gordon & Myers, and that firm assigned its case number T1179 to the transaction. A title search of the property was initiated by Gordon & Myers, as a result of which the firm filed its “Report on Title,” certified as of August 19, 1966, showing that the Rancks had a marketable fee simple title, subject to an outstanding deed of trust. An interim title insurance binder was then issued by Lawyers Title Insurance Company (Lawyers Title) to Bogley, the prospective lender.

On August 22, 1966 Bogley wrote to Gordon & Myers stating that it had agreed “subject to the conditions listed” to make a VA loan to the Scholls in the amount of $19,950.00. In its letter Bogley set out the terms of the loan, stated that settlement was to be held in August of 1966, specified that “all papers” were to be prepared by Gordon & Myers, directed that the current YA standard forms of deed of trust and note be used and that the note was to be made payable to Bogley, designated the names of the trustees of the deed of trust and outlined certain provisions to be included in that document. The letter further stated that title was to be in fee simple “good of record in the borrowers and subject to foregoing deed of trust as first lien”; that title insurance was to be obtained insuring Bogley, and that the binder was to be marked up opposite existing liens showing the same to be “satisfied” or “to be satisfied out of proceeds.” Bogley’s letter further directed that certain documents, including the “marked up” title insurance binder, be mailed to them after settlement and specified that “The closing and disbursement of this loan is subject to all aspects of title and loan papers being satisfactory to us and in such form that the VA will issue its Certificate of Guaranty for the loan.” In its letter, Bogley set out various charges to be made at the time of settlement, directing that these charges “be collected for our account at settlement.” The letter concluded by stating that Bogley’s loan check would be issued; that the deed of trust was not to be recorded before Bogley’s check was received; that Gordon & Myers was to “advise of any unusual circumstances surrounding this case that come to your attention that might preclude complete settlement of this case within seven (7) days of the receipt of oitr check”; and that if there should be any deviation from these closing conditions, the case was not to be closed since “it will be necessary that you consult further with this office.”

Settlement was held on August 24, 1966 at the offices of Gordon & Myers. Edward Dacy, a salaried employee of the firm, acted as the settlement attorney in closing the transaction. At the settlement a deed conveying the property from the Rancks to the Scholls was executed dated August 24, 1966. The Scholls executed a deed of trust note in the amount of $19,950.00 and also a deed of trust in favor of Bogley on the same date. Separate settlement statements, one for the Rancks and one for the Scholls, were prepared, showing the financial details of the transaction. As the seller, Ranch’s statement showed a brokerage commission and, inter alia, a first mortgage or trust payoff of $13,095.04, a charge for the recording of the release, and a balance due the Rancks of $3,034.05. The buyer Scholl’s state'ment showed, among other things, charges including a VA funding fee, a loan commission, a title examination and certification fee of $122.50, together with a title insurance and application fee of $64.75. It showed that the buyers were credited with the amount of the mortgage or trust to Bogley, namely $19,950.00 (less a $300.00 deposit previously paid). The “balance due to settle” paid by the Scholls at the time of the settlement was $651.39.

At the settlement the parties executed a document acknowledging that “until funds have been received (from Bogley) there will be no disbursement or processing of this case.”

An endorsement to the title insurance binder containing amendments pertaining to the amount of loan, selling price and other details was issued on August 26, 1966 and the original copy of Gordon & Myers’ “Report on Title” contained a handwritten notation that the outstanding Ranck mortgage (to Emigrant) was to be paid out of the loan proceeds.

The various settlement documents were forwarded to Bogley for review in accordance with its previous instructions. After reviewing the documents, Bogley forwarded its check dated September 8, 1966, payable to Gordon & Myers, to the offices of Gordon & Myers, the check being in the amount of $18,130.35, representing the amount of the loan less certain of the charges made at the time of settlement. Bogley’s check was deposited on the same date in Gordon & Myers’ real estate escrow account in the State National Bank of Bethesda.

The firm of Gordon & Myers consisted of two partners, the appellant and Mitchell Myers, and two salaried attorneys Edward Dacy and Donald Wasserman. Myers specialized in negligence and domestic cases and had nothing whatsoever to do with real estate settlements, the appellant and Dacy handling all such work, with Dacy doing approximately 80% of the actual settlements. Appellant had established the office procedure for the handling of settlements and disbursement of funds. While all four attorneys had authority to sign checks on the firm’s real estate escrow account, the recordation of title instruments and disbursements of settlement funds could only be made upon appellant’s authority, and this was particularly well established office procedure in connection with paying off prior mortgages or trusts.

Under the normal operating procedure of Gordon & Myers, a secretary or the accountant, after receiving the lender’s draft, and after the draft had cleared the bank, would draw the necessary checks on the firm’s escrow account necessary to have the legal documents recorded; and after recordation had been effected, the other checks were made up in accordance with the settlement statements.

Following receipt of Bogley’s check covering the Ranck-Scholl settlement, checks were drawn on the firm’s escrow account on September 8, to cover taxes, documentary stamps and for recordation of the deed and deed of trust. These instruments were recorded on September 16, 1966. A commission check to the real estate broker was issued on September 21, 1966. The Rancks received the money due them as sellers at some unspecified time and from an unspecified source. No disbursement was ever made to Emigrant to pay off the Ranck trust.

On November 23, 1966, Lawyers Title purchased the deed of trust note covering the property from Emigrant for $14,-564.72. Neither the firm of Gordon & Myers, nor the appellant, or anyone else connected with the firm, ever paid anything on the Emigrant note.

The ledger sheets of the State National Bank pertaining to the real estate escrow account of Gordon & Myers showed that from October 24, 1966 until December 23, 1966, when the account was closed, it was with the exception of several days in October, overdrawn. When closed on December 23, 1966, it showed a deficit of $8,147.11.

Dacy testified at the trial that he learned on October 28, 1966 that the firm had been removed from Lawyers Title’s list of “approved attorneys,” immediately after which he “had a conversation” with appellant so as “to confirm certain things in my mind, and, in fact, what he said was that it was a stupid thing to do, it seemed smart at the time.” When asked what appellant was referring to by this statement, Dacy testified that appellant was referring to the “shortage in the escrow account”; that their conversation was “rather rambling” and appellant said, “My greatest mistake was in calling Lawyers Title Insurance Corporation to go over the escrow shortages.” Asked whether appellant ever indicated that anyone other than himself was responsible for the shortage, Dacy testified “he never mentioned any other names at all.”

With respect to the Ranck-Scholl settlement, which he handled for Gordon & Myers, Dacy testified that it was not his responsibility to ascertain whether the lender’s check had been received, or whether the disbursement of funds had actually been made. He testified that these were matters for the bookkeeper or secretary and that in accordance with the normal office procedure, the checks would have been drawn and presented for appellant’s approval before being signed. Dacy admitted that he signed a large volume of checks on the firm’s real estate escrow account, and that he signed all the checks chargeable to the Ranck-Scholl settlement. He testified that he did not recall signing such a check to pay off Emigrant’s first trust or mortgage. He also testified that there was no money due the Scholls at the conclusion of the settlement.

Benjamin Dulaney, an attorney representing Lawyers Title, testified that on November 23, 1966, he met with appellant and his attorney and officers of Lawyers Title; that the purpose of the meeting was “to attempt to ascertain whether Lawyers Title could salvage any of the funds which had been paid out because of the shortages in the Gordon & Myers escrow account”; that he told appellant that the known shortage was approximately $350,000.00 and that additional claims were outstanding which would bring these losses up to $500,000.00; and that in response to his question of appellant as to “where the money had gone to,” appellant said:

“* * * that in 1961 he was in Florida on his own, and that on May 26, 1961 he was hospitalized and operated on for a disk condition in his back, and that was the first time that he started using escrow funds, and he used them for his personal expenses, somewhere between one and five thousand dollars.
“He stated that in 1962 he advanced certain monies from the escrow account to clients in order to settle cases that he was settling in the office; that in 1962 he used some escrow funds to supplement his personal income; that in 1962 he was also paying all or part of his office overhead out of his escrow account; and that in 1962 or ’63 he was some 40 or 50 thousand dollars in the hole as far as his escrow account was concerned; that he made a loan, repaid all or a major part of what he had withdrawn from the escrow account, and at that time was only about 10 or 15 thousand dollars short; that subsequently he repaid the loan out of the escrow account, so that the amount of the shortage again increased.
“He stated that he did a lot of traveling in 1963 for Intercontinental Motels, a corporation which sold stock publicly; and in Florida he became involved with a confidence man in Florida by the name of Bonsath; and became involved in a North Carolina Company — ■ Credit Loans, Incorporated, I believe; and he also became involved in the Five Points National Bank in Florida, and it was there that he thought the bulk of the money had gone.”

After stating that he couldn’t make appellant’s explanation of the finances “total,” Dulaney further testified that he again asked appellant “Where it went,” and appellant responded, “Well, I frittered it away.” Dulaney testified as to his further conversation with appellant as follows:

“He went into several smaller transactions from the escrow account; one where he had in North Carolina — he said North Carolina — one of the more larger ones, where he was a part-purchaser of a small business investment corporation known as Frontier’s Capital Corporation; in Raurel, Maryland in which he paid $10,000.00 cash which he also loaned from the escrow account; also loaned from the escrow account $5,000.00 to a F.B.W. Fireplaces, and that concern went broke and the loan was never repaid; and he also loaned money to a man named Fishkin on accounts receivable, and that was probably one to three thousand dollars to his recollection — that was an uniform business, and that also went broke, and the note was not paid.
“In 1965, having suffered these losses in Florida, Mr. Gordon stated that he realized that wheeling and dealing was no good, started concentrating on title work, expanded his office, which increased the overhead and also the income.
“He stated, that the checks from the escrow account were put into Milton Gordon’s own special account, which was merely a bookkeeping account on his office books, and then was utilized for whatever purpose he saw fit.
“In addition he had paid a man named Biddle, Victor Biddle, in a billing system business for doctors, and the firm paid his salary and it came out of the escrow account, $225.00 a week, and Mr. Gordon was to own part of the business, this amounted, over a period of years he said, to $9,000.00; and there was a man named Rhombrun, he had loaned some 20 or 25 thousand dollars to him; that he had advanced some 20 thousand dollars to a family realty company known as Aragonas, and there were several brothers and a father in that business; and he stated that the only assets that he had would be the repayment of some of these loans or advances, which he thought would amount to as much as $140,000.00.” [Emphasis Supplied.]

Dulaney further testified that appellant told him that in 1965 he first began deliberately not paying off first trusts; that prior to that time, “he would just take money out of the escrow account without purposely or consciously not paying off trusts”; and that he began paying only the monthly or quarterly payments on the trusts as they came due.

Appellant’s motion for a judgment of acquittal was denied by the court. The appellant did not testify and presented no evidence in his own behalf. As heretofore indicated, the jury found him guilty on the embezzlement count of the indictment.

I

Appellant contends that the lower court erred in failing to grant his motion for judgment of acquittal on the embezzlement count because the evidence presented by the State was insufficient to prove the crime of embezzlement from the Scholls under Section 129 of Article 27 of the Maryland Code, as charged in the indictment. He urges that under the express language of Section 129, the State was required to show, first, that he was either a cashier, servant, agent, or clerk of the Scholls and, secondly, that the funds in question had been received by him “for or in the name or on account of his master or employer” (the Scholls).

Appellant maintains that neither he individually nor the firm of Gordon & Myers was a cashier, servant, agent, or clerk of the Scholls; that if occupying any of these designated positions it necessarily could only be as an agent; that if an agent, Gordon & Myers was the agent of the Rancks, their services having been engaged by Smith, the Rancks’ real estate broker, or that the firm could possibly be considered as a sub-agent of the Rancks’ mortgagee, Emigrant; and that to justify a conviction under Section 129, the accused must be shown to be the agent of the principal having title to or a special property interest in the misappropriated funds. Appellant further urges that in no event could he personally be considered as an agent in the Ranck-Scholl transaction, as it was the firm’s business, and not his own, and that moreover the transaction was handled by the firm’s employee Dacy at a time when he, the appellant, was away in Florida.

Appellant next argues that even if he or the firm of Gordon & Myers was at one time the agent of the Scholls, it was in the limited capacity of an escrow holder of funds having the duty to record the deed and deed of trust, after which it was to make disbursement of the funds to pay the Rancks, to pay Emigrant, and to satisfy the other obligations in accordance with the settlement statement; that as the Scholls and Bogley had placed only money into the escrow arrangement, when the recorded deed and deed of trust had been delivered to the Scholls and Bogley, respectively, any agency of Gordon & Myers or of the appellant personally, as to them, was thereby terminated; that as this termination occurred on or about September 16, 1966, there was nothing thereafter for the escrow holder to do for the Scholls; that it was the Rancks and Emigrant who, after recordation of the title instruments, were to receive the funds deposited in escrow, and that at the time of the termination of the agency of the Scholls in September of 1966, the escrow account of Gordon & Myers was sufficient to pay off Emigrant, so that at the time of the alleged conversion in October of 1966, no principal-agent relationship existed between the appellant and/or Gordon & Myers and the Scholls.

Appellant next contends that under Section 129, an allegation of ownership is an essential averment in an indictment for •embezzlement, and while any legal or special property interest may suffice, it must be shown that such interest was vested in the injured person at the time the offense was committed. He argues that the legal interest in the escrow funds passed to Emigrant at the time of the conversion; that Bogley’s check was not sent to Gordon & Myers until after the deed from the Rancks to the Scholls, and the deed of trust from the Scholls to Bogley, had been signed; that Gordon & Myers, under their office procedure, would in no event disburse the money from the lender’s check until such time as it cleared the bank, so that the Scholls had no interest in the funds once the title instruments had been signed and recorded; and that once recordation occurred, Gordon & Myers’ only obligation was to pay Emigrant. It is upon this predicate that appellant suggests that the embezzlement, if any, was from the Rancks who he contends acquired a special property right to have the money owed paid to Emigrant, or that the embezzlement was from Emigrant, who also had a property interest in the money.

In summary then, it is appellant’s position that Bogley and/or the Scholls retained an interest in the money only until the deed and deed of trust were recorded and delivered to the respective parties in September of 1966; that these events occurred prior to the established dates of the conversion (October 21-24, 1966); that at the time of the conversion, the ownership of the misappropriated funds was vested in the Rancks or Emigrant, and that Gordon & Myers, as the escrow holder of the funds, then had one remaining duty — to pay off the Rancks and Emigrant. Appellant urges that as an allegation of ownership is a necessary averment in an embezzlement indictment, and as it is an essential element in proof of the crime of embezzlement that such ownership be in the injured party at the time of the fraudulent conversion, proof of ownership in another at the critical time constitutes a fatal deficiency in the proof.

Embezzlement is a statutory offense designed to penalize those fraudulent conversions of money and other personal property which could not be prosecuted at common law as larceny because there was no trespassory taking. See Clark & Marshall, Crimes, (6th Edition) Section 12.18; Wharton’s Criminal Law & Procedure (Anderson Edition), Section 514. While the crime in general consists of the fraudulent appropriation of personal property by a person to whom it has been entrusted, League v. State, 1 Md. App. 681, where an embezzlement statute such as Section 129 applies only to designated persons occupying particular relationships, it is essential in proving the offense to show the existence of such a relationship so as to bring the accused within the ambit of the statute. See Clark & Marshall, Crimes, Section 12.22, and Wharton, Section 514, and cases there cited.

By its express terms, Section 129 requires proof that the accused (a) was employed as a cashier, servant, agent, clerk or officer by a person or body corporate; (b) that in such capacity he received personal property “for or in the name or on account of his master or employer”; and (c) that he thereafter fraudulently embezzled such property. The statute does not require that the embezzled property be entrusted to the accused directly by the master or employer; it may be entrusted by another person on his behalf.

Section 130 of Article 27 provides that an indictment for embezzlement shall be sufficient if in the following form:

“That A-B on the......day of............, 19.., in the County (City) aforesaid did feloniously embezzle from C-D the sum of.............. Dollars current money (or an enumeration of articles embezzled as the case may be), * *

The Court of Appeals of Maryland recently pointed out in Loker v. State, 250 Md. 677, that while there is no specific requirement in Section 129 “that ownership of the money embezzled be either alleged or proved” nevertheless it was judicially determined in State v. Tracey, 73 Md. 447, “that the ownership of such money must be alleged in the indictment * * * because the statute makes its violation larceny and the common law crime of larceny required an allegation of ownership of the stolen property.” The court in Toker held further that the allegation of ownership of the embezzled funds could be supported “by proof of any legal interest or special property in the goods.”

That an attorney may be an agent within the meaning of Section 129 is settled beyond question. Dick v. State, 107 Md. 11. While the record does not disclose the exact origin of Gordon & Myers’ employment in connection with the Ranck-Scholl real estate transaction, it is entirely clear that the firm undertook to act as attorneys to close the transaction in accordance with their usual operating procedures. The evidence does not specify at whose request Gordon & Myers initiated a title examination of the property, or at whose request it issued its “Report On Title,” which showed a marketable fee simple title in the Rancks, subject to an outstanding deed of trust. Although it appears that the Scholls did not directly engage Gordon & Myers as their attorneys, it is quite clear that the firm undertook to close the transaction in accordance with Bogley’s instructions and directions of August 22, 1966, in pursuance of which Gordon & Myers, inter alia, was to prepare “all papers,” as specified by ■Bogley; assure a fee simple title to the Ranck property “good of record in the borrowers,” subject only to Bogley’s deed of trust as a first lien; and, to accomplish this end, to pay off the existing mortgage indebtedness on the property owed to Emigrant. Under these circumstances, we think in accepting this authorization to act in closing the Ranck-Scholl transaction Gordon & Myers assumed, at the least, an obligation on behalf of the Scholls to satisfy the Emigrant lien out of the proceeds of Bogley’s check and thus to assure the Scholls good title to the property. We think it implicit in the transaction that the Scholls acquiesced in and tacitly assented to Gordon & Myers undertaking this responsibility on their behalf, and that Gordon & Myers and the Scholls thereby stood in the implied legal relationship of principal-agent within the ambit of Section 129 —a relationship that was to continue until Gordon & Myers paid Emigrant, on the Scholls’ behalf, from the proceeds of the loan from Bogley. We therefore believe that when the deficiency in Gordon & Myers real estate escrow account first became apparent in October of 1966, the implied agency relationship between the parties was still in effect, and did not terminate immediately after the recordation of the title instruments on September 16, 1966.

As appellant was that person in the firm of Gordon & Myers under whose direction and ultimate authority the Ranck-Scholl transaction was closed, we think that he personally could be deemed an agent within the meaning of Section 129 who received “for or in the name or on the account of” the Scholls the money to cover the Emigrant indebtedness — money which the proof showed he personally thereafter fraudulently embezzled.

It is equally clear to us that when the deed of trust from the Scholls to Bogley’s trustee was recorded, the Scholls became liable for the money advanced by Bogley. Under these circumstances, it is plain that the evidence satisfactorily showed that the Scholls had the requisite legal interest or special property right in the embezzled funds at the time of the conversion. See Loker v. State, supra.

II

Appellant next contends that the testimony of the State’s witnesses Dacy and Dulaney relative to the various admissions which he made to them as to his conversion of escrow funds between 1961 and 1965 was improperly admitted into evidence and constituted prejudicial error. More specifically, he asserts that as he was indicted only for embezzling $13,895.04 from the Scholls, the evidence of his prior defalcations, admitted over his objection, was incompetent and inadmissible upon the principle which prohibits the introduction of evidence of other crimes to show the commission of the crime charged in the indictment.

The general rule is that “when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded.” Wentz v. State, 159 Md. 161, 164. The rule is not, however, without exceptions and evidence of other crimes of the same character is generally allowed when it tends to show the guilty knowledge of the offense for which the defendant was indicted, or of other offenses so connected that they form parts of one entire scheme or transaction from which may be gathered the purpose or intent with which the act was done for which the accused was then being tried. Meno v. State, 117 Md. 435. As more particularly crystalized in Cothron v. State, 138 Md. 101, 110, the rule is that evidence of other crimes is admissible to prove the specific crime charged when such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. To like effect, see Jones v. State, 4 Md. App. 445; Thomas v. State, 3 Md. App. 708; Gilchrist v. State, 2 Md. App. 635; Loker v. State, 2 Md. App. 1; Gorski v. State, 1 Md. App. 200.

To prove the fact of the fraudulent embezzlement of the Scholl funds, and of appellant’s criminal agency in connection therewith, it was necessary that the State show in substance that it was appellant’s illegal activities, and not those of someone else, that caused the deficit in the firm’s escrow account. In showing that appellant’s failure to pay Emigrant with the funds entrusted to him on behalf of the Scholls was not due to neglect, mistake, bad bookkeeping, or other cause not criminal, it was necessary for the State to establish more than the mere fact of the deposit of the Scholl funds in Gordon & Myers’ escrow account, the existence one month later of a deficit in that account, and the fact that Emigrant was not paid with the Scholl funds. The State was required to show, by proper evidence, appellant’s criminal responsibility for that deficit and thus inferentially to prove his fraudulent conversion of the Scholl funds. In doing so, it was wholly proper to permit evidence of other transactions involving the escrow account in order to give meaning to and show the underlying cause of and reason for the deficit. In these circumstances, a specific evidentiary showing through appellant’s own admissions that he had been fraudulently converting funds from the firm’s escrow account for a number of years, and particularly that he had, since 1965, been doing so and deliberately not paying off first trusts, was clearly permissible in that, at the least, (a) it identified appellant, and not someone else, as the guilty person, (b) demonstrated his fraudulent intent and, conversely, the absence of mere mistake or neglect in his involvement with the deficit in the escrow account, and (c) showed a specific design, scheme, and plan to embezzle funds from the account — a continuing series of conversions — so related and connected with the embezzlement of the Scholl funds that proof of the former tends to establish his responsibility for the latter. See Wigmore on Evidence, Third Edition, Sections 300-332. In concluding that the challenged evidence was properly admissible, we have considered, but found inapplicable to the facts of this case, those cases relied upon by appellant to support his argument that the evidence of his prior defalcations was inadmissible.

Ill

Appellant contends that the court erred in failing to adequately instruct the jury as to the applicable law. The record indicates that the case went to the jury on two counts, embezzlement and larceny after trust, and that the court limited its instructions on the embezzlement count as follows:

“I am going to read to you what we understand to be the elements of the crime of embezzlement, and that is the First Count, and that is, to make out a case of embezzlement it is usually necessary to show that the property was, within the protection of the statute, belonging to someone other than the accused, that the accused acquired it lawfully and occupied the designated fiduciary relation, and converted the property with a fraudulent intent. You must, ladies and gentlemen, to find him guilty of embezzlement, find that there was an intent to fraudulently convert this property and use it for his own benefit, other than use it for what it was placed in his hands in the first place to do, and that was, as I understand the testimony, to pay off a mortgage, which the mortgage holder at that time was Emigrant Industrial Savings Bank. * * * As I remember the testimony, the mortgage money initially came into the account of Gordon & Myers, and did not find its way where it should have gone, to the Emigrant Industrial Savings Bank, to pay off on a mortgage.”

Appellant entered twenty-one exceptions to the charge. The court declined to modify or amplify its instructions and the case went to the jury. The jury retired briefly, then returned and requested the court to further instruct it as to “the difference between embezzlement and larceny after trust and to permit us to see the law books concerning each.” To this inquiry, the court stated:

“Instead of turning over the law books to you, we are going to read to you the statutes of embezzlement and larceny after trust.”

The court then read the applicable statutes to the jury.

One of appellant’s principal exceptions to the charge was that the court misstated the law when it instructed the jury that to make out a case of embezzlement “it is usually necessary to show that the property was, within the protection of the statute, belonging to someone other than the accused.” Appellant contends, as he did throughout the course of the trial, that to prove him guilty of embezzlement, the State had to show that he unlawfully embezzled the money “from Raymond Francis Scholl, Jr. and Mary E. Scholl,” as charged in the indictment, and not merely that the embezzled funds belonged “to someone other than the accused,” as the court charged the jury.

The record discloses that in arguing the merits of his motion for a judgment of acquittal appellant maintained that under the evidence in the case, “The Scholls had no interest in the money whatsoever”; and that “The interest, as I think again, the Eoker case, is to the effect that there must he a legal title or a special property interest * * *.”

In his request for instructions to the jury, appellant specifically asked the court to charge that to sustain the embezzlement count, it was necessary for the State to show that he “acquired possession of the funds lawfully, for the use and benefit of Mr. and Mrs. Scholl”; that “Proof of ownership, as laid in the indictment, is an essential factor to justify the conviction”; and that as “the State has laid ownership of the property in Mr. and Mrs. Scholl,” it must prove beyond a reasonable doubt that the Scholls “had an actual legal interest in the funds and not a mere claim or expectation of interest.”

After the court declined to instruct the jury, as requested, the appellant specifically excepted to its failure to do so and asked again that the substance of his requested instructions be given, and particularly that the jury lie instructed “that the State must show that the funds were secured for the use and benefit of Mr. and Mrs. Scholl, and not any individuals.” Appellant then told the court that proof of ownership in the Scholls was “a major aspect of the case” and that he excepted “strenuously, vigorously, and sincerely to the failure of the court to say that there is a requirement for the State to prove the ownership of the property in Mr. and Mrs. Scholl.”

Underlying these requests for instructions was one of appellant’s primary defenses to the embezzlement count, manifest from the very beginning of the trial, that at the time of the conversion the embezzled funds were not owned by the Scholls, nor did they have any legal interest in them; but that such funds were owned by Bogley, or Emigrant, or even the Rancks. Indeed, appellant also requested an instruction to the effect that if the jury found that he had been entrusted by Bogley with the money to pay off the trust to Emigrant, and then to pay the balance to the Rancks, then it must find that the Scholls neither owned nor had any property right in the embezzled funds.

It is incumbent upon the court when requested in a criminal case to give an advisory instruction on every essential question or point of law supported by the evidence. Malloy v. State, 4 Md. App. 420; Hiiber v. State, 2 Md. App. 245; Tipton v. State, 1 Md. App. 556. We think the court committed error when it refused to instruct the jury, as requested in substance by the appellant, that to prove embezzlement under Section 129, the State was required to prove “ownership” of the embezzled funds, as laid in the indictment, viz., that the proof, in order to sustain the embezzlement count, must show that the money was owned by the Scholls, at least in the sense that they had any legal interest or special property right in it at the time of the conversion. See Loker v. State, supra; State v. Tracey, supra. As this proposition of law provided one of the principal cornerstones of appellant’s defense to the embezzlement count, we cannot find that the court’s failure so to instruct was harmless, even though, as we have heretofore indicated, there was sufficient evidence adduced at the trial from which the jury could have concluded that the Scholls had the requisite legal interest in the misappropriated monies when they were converted. The fact that the jury was not required to consider the existence of this element of the offense, but was instructed that guilt could be predicated on a finding that the embezzled funds belonged “to someone other than the accused” (and not necessarily the Scholls, as charged in the indictment), was, we think, clearly prejudicial to appellant’s defense and requires reversal of the judgment and a remand of the case for a new trial. In so concluding, we have considered the court’s instructions to the jury in their total context, but cannot conclude therefrom that, as a whole, they fairly and correctly stated the law as to the embezzlement count.

Judgment reversed; case remanded for a new trial; County Council for Montgomery County to pay costs.

      . The Scholls, as borrowers, paid for these services at the time of settlement.

        . The fact that the actual deficit in the escrow account did not appear until October 21-24, 1966 does not necessarily mean that the & Myers received Bogley’s check. Scholl conversion did not occur at some earlier date after Gordon

      . Appellant places principal reliance upon Young v. State, 153 Md. 89. In that embezzlement case, however, the prior conversions were not connected in any way with, or related to, the embezzlement for which the defendant was being tried, nor were they part of a common plan.

      . Referring lo Loker v. State, 2 Md. App. 1, wherein, at page 34, we stated that “failure to prove ownership as laid in the indictment is immaterial.”

      . A requested instruction which we think was properly denied by the court.


text:
    JOHN RUSSELL COLOPIETRO v. STATE OF MARYLAND
    [No. 33,
    September Term, 1968.]

      Decided October 22, 1968.

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

      Louis Peregoff, with Claude Hanley on the brief, for appellant.

      William B. Braman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green,

      Jr., State’s Attorney for Baltimore County, and Gary Huddles, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Per Curiam.

John Russell Colopietro, the appellant, was convicted under four separate indictments for larceny and under a fifth indictment for possession of barbiturates in a non-jury trial in the Circuit Court for Baltimore County. He was sentenced to a term of five years under each larceny indictment and a term of one year on the barbiturate indictment, all sentences to run concurrently. On appeal he contends his arrest was illegal and barbiturates found on him at the time should not have been admitted into evidence. He further contends that he was not advised of his right to counsel prior to his confessions of the larceny charges, and that the confessions should not have been admitted into evidence.

THE ARREST

The evidence shows that a police officer of Baltimore County was staked out in a vacant apartment above Colopietro’s for the purpose of serving a warrant upon one Frank Vincent Garbo for whom the officer had a warrant. When Garbo appeared at Colopietro’s apartment door and opened it the officer arrested him under the warrant and simultaneously arrested Colopietro. As gleaned from a meager record the reasons for Colopietro’s arrest consisted simply of the officer’s statement that he had reliable information from a reliable informant that prior to a burglary Colopietro had been observed in the same car that approximately a month later was connected with a second burglary. Apparently some additional information had also been obtained from the prior tenants of the apartment in which the officer hid prior to the arrest but the record does not disclose the information. The record also does not disclose why any of the informants were considered reliable. Prior to trial Colopietro made a motion to dismiss which can be considered as a motion to suppress the barbiturates which a search after the arrest revealed on Colopietro’s person. We hold that the arrest was illegal. The mere fact that Colopietro was observed riding in an automobile near the scene of, but prior to, a burglary a month earlier and that same automobile was involved in a subsequent crime might well be grounds for suspicion that he was some way involved in criminal activity but hardly satisfies the test that prior to an arrest for a felony an officer must have reasonable grounds to believe that a felony has been committed and that the accused had committed it. We ruled in Scott v. State, 1 Md. App. 481, 231 A. 2d 728 and in Kist v. State, 4 Md. App. 282, 242 A. 2d 586 that a search warrant must disclose the underlying circumstances upon which the informer believed that a crime had been committed and the underlying circumstances in which the officer had a reason to believe that the information was reliable. In a somewhat similar case, Beck v. Ohio, 379 U. S. 89, 85 S. Ct. 223, 13 L.Ed.2d 142 the Supreme Court of the United States held that the information required to be possessed by an officer who arrested without a warrant was certainly no less than that required where an arrest warrant had been obtained. It further held that the record must clearly indicate the information on which the officer relied and that information must show that he had probable cause to believe that a felony had been committed and the accused had committed it. Compare Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327 and McCray v. Illinois, 386 U. S. 300, 87 S. Ct. 1056, 18 L.Ed.2d 62. The officer’s conclusion that he had reliable information from reliable informants cannot be accepted as furnishing sufficient basis for an arrest.

THE CONFESSION

The police testimony which was accepted by the trial judge as being accurate consisted of the fact that Colopietro was made no promises or inducements and that no threats were made against him, and that the Miranda warnings were given to him in the following manner:

“Q. Now, Detective Sellman, after arresting Mr. Colopietro what did you do ?
“A. He was arrested, taken out to the police car, the Miranda was read. While he was in the car the Miranda was read to Mr. Garbo and while he was sitting in the back—
“Q. When you say Miranda — the Miranda Warning?
“A. Yes.
“Q. Do you have the card with you ?
“A. Yes.
“Q. Would you read exactly what you read to him?
“MR. HANLEY: He didn’t read it.
“THE WITNESS : I did.
“THE COURT: Did you read it to Mr. Colopietro?
“THE WITNESS : Both were in the back seat and I read it to both of them, but again I read it — this would be the first time. It is a card issued to us by Baltimore County Police Bureau. The following was read to both subjects in the police car: ‘You have the absolute right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney before you are questioned and have him present thereafter. If you cannot afford an attorney, one will be appointed by the Circuit Court immediately and before any questions are asked. If you desire to ask questions, you can at anytime insist upon all your rights at which time all questioning will cease and no further questions will be asked.’ I asked the two following questions: ‘Do you understand each of the rights I have explained to you?’ And I received a reply of yes. ‘Having these rights in mind, do you wish to talk to us now?’ Mr. Colopietro did not reply and Mr. Garbo replied, no, he didn’t want to say anything.
“Q. AVhat happened at that time ?
“A. I called for assistance due to the fact I was alone. Detective Kroner and Detective Miranda came to 5503 Ashbourne Avenue. Detective Miranda stayed at Ashbourne Avenue and Detective Kroner accompanied me to Baltimore County Police Headquarters.
“Q. Did you question Mr. Colopietro at the Baltimore County Police Headquarters ?
“A. He was processed and questioned by myself and Detective Robert LeCain. This occurred on October 18, 1967 at 9:30 p.m. At this time again I read the Miranda warning with Detective LeCain present in the investigation room of the Baltimore County Police Headquarters, reading the exact same wording I read to the Court and receiving the answer to the question on the back, Do you understand each one of your rights? — if I remember correctly there were a few things Mr. Colopietro asked me questions on and I explained to simplify the language on the Miranda card,
I explained it thoroughly and he said, Yes, now I understand my rights. I said, Having these rights in mind, do you wish to talk to us? He said, Yes. At that time the interrogation took place after his rights were read to him again.”

Subsequently the appellant admitted the four larceny charges and in addition rode in a police car to point out the specific properties which he had burglarized.

Colopietro’s testimony was to the effect that he was under the influence of narcotics and did not remember making the statements or pointing out the locations to the officers. The police officers denied that he showed any effects of the narcotics, and this testimony was accepted by the trial judge.

As to the confession Colopietro contends only that he was not properly warned of his right to counsel. This record clearly shows that all warnings required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 were given to the accused and further that he understood his rights and knowingly and intelligently waived them, Brown v. State, 3 Md. App. 313, 239 A. 2d 761. Since this information is in the record, together with a denial of any promises, inducements or threats, we cannot say the trial judge abused his discretion in admitting the confession into evidence. See Carrington v. State, 1 Md. App. 353, 230 A. 2d 112, Robinson v. State, 3 Md. App. 666, 240 A. 2d 638.

Judgment reversed as to the conviction for possession of barbiturates and case remanded for a new trial.

Judgment affiiined as to the larceny convictions.


text:
    LEON ELLSWORTH JONES v. DIRECTOR, PATUXENT INSTITUTION
    [No. 126,
    September Term, 1967.]

      Decided November 7, 1968.

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

This is an application for leave to appeal from a finding by a jury in the Circuit Court for Prince George’s County, Judge Robert B. Mathias presiding, that Leon Ellsworth Jones is a defective delinquent.

Applicant raises four contentions:

1. That while his direct appeal is pending, his civil commitment is automatically deferred as “the civil commitment must rest upon a final adjudicated criminal conviction or else it is premature * *
2. That the requested writ of habeas corpus was improperly denied by Judge Digges.
3. That the “premature commitment to Patuxent” denied him the right to an appeal bond.
4. That “his constitutional rights under the Fourteenth Amendment to the United States Constitution have been violated deliberately.”

On August 2, 1966, the applicant was convicted by a jury of murder in the second degree, and sentenced by Judge Ralph W. Powers to serve eighteen years in the Maryland Penitentiary. On August 3, 1966 a notice of appeal to the Court of Appeals was filed and on August 4, 1966 commitment was issued and delivered to the sheriff. On August 22, 1966 an order for examination at Patuxent Institution was filed. After two time extensions for the transmission of the record for appeal were granted, the record for transmittal was filed on November 2, 1966. On November 9, 1966 a petition for relief under the Uniform Post Conviction Procedure Act was filed. On January 17, 1967 a letter and report from Patuxent Institution was filed. On February 2, 1967 the State’s Attorney moved to continue the post conviction hearing until a determination was reached on the direct appeal and the motion was granted by Judge Roscoe H. Parker. Then, on March 23, 1967, the order of court ordering the clerk to transmit the docket entries and record transcript to the Court of Special Appeals was filed. The aforenoted defective delinquent hearing by jury was held on September 14, 1967, with a finding that Leon Ellsworth Jones was a defective delinquent and on that date he was committed to Patuxent Institution. A writ of habeas corpus was filed on September 25, 1967 and on October 12, 1967 an opinion and order denying such relief was filed. An application for'leave to appeal the defective delinquent finding was filed on September 20, 1967 and on October 16, 1967 counsel was assigned and the time for transmission of the record extended until December 19, 1967.

The direct appeal was decided by this Court on November 16, 1967 and is reported in Jones v. State, 2 Md. App. 429, 234 A. 2d 900 (1967). This application was received on December 8, 1967.

The applicant’s initial contention is devoid of merit. It is not requisite that prior to a defective delinquency hearing there must be a finally adjudicated criminal conviction; but rather, such a determination may be made “if he has been convicted and sentenced.” Maryland Code (1967 Repl. Vol.), Art. 31B § 6 (a). Furthermore, the issue therein raised was rendered moot by the affirmance of applicant’s conviction in Jones v. State, supra.

The second contention also fails. In Maryland, there is no appeal from the denial of release after a hearing on habeas corpus, except as provided in Md. Code (1967 Repl. Vol.), Art. 27, Section 645 A (e), which is not here applicable. State v. Musgrove, 241 Md. 521, 527, 217 A. 2d 247 (1966); Bullock v. Director, 231 Md. 629, 631, 190 A. 2d 789, 791 (1963).

Applicant’s third contention is without merit. Here, as discussed above, there was no “premature commitment to Patuxent” and therefore the contention is totally lacking in merit.

The final contention fails to set forth the requisite specifics to substantiate what in the absence thereof, constitutes merely a bald allegation.

Having found each contention raised absent in merit, this application is herewith denied.

Application denied.