author: Morton, J., ORTH, J.,

text:
    SAMUEL BROWN v. STATE OF MARYLAND
    [No. 51,
    September Term, 1968.]

      Decided November 13, 1968.

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

      Robert Allen Sapero for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Stephen Montanarelli, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the majority opinion of the Court. Anderson and' Orti-i, JJ., dissent. Dissenting opinion by Orti-i, J., in which Anderson, J., concurs, at page 373 infra.

The appellant was convicted of storehouse breaking and stealing $5.00 or upwards under Maryland Code, Art. 27, Sec. 33 in a non-jury trial in the Criminal Court of Baltimore and sentenced to a term of three years. In this appeal, it is first contended that the appellant ivas illegally arrested and that the articles seized as an incident thereto were, therefore, improperly admitted into evidence.

The record indicates that a sexton of a church in Baltimore City reported for work on Sunday morning, November 12, 1967, and noticed a window had been broken; that the doors to the catacombs under the church were broken; and he discovered that a case of Maxwell House coffee, a case of Hawaiian punch, two boxes of Ritz crackers, some jewelry and a baby carriage were missing. The food items were, apparently, to be used in a pre-service social hour and the baby carriage and jewelry were left over from a church bazaar.

A plain clothes police officer testified that about 4:45 A.M. on the morning of November 12, 1967, at the intersection of Hamilton Street and Park Avenue, several blocks from the church, he observed a man pushing a baby carriage in a parking lot situate to the rear of row houses in the 200 block of Franklin Street. He observed the man turn south on Tyson Street and when he reached the corner the man had disappeared. The officer proceeded down Tyson Street, and when he reached its intersection with Franklin Street he observed the man and baby carriage going west on Franklin Street. The officer thereupon alighted from his unmarked car, walked west on Franklin Street and found the man with the baby carriage standing inside an area of a commercial establishment used as a patrons walkway display entrance. Upon reaching the man, whom he identified as the appellant, he looked into the baby carriage and observed a price tag of $7.50 affixed thereto and “cans of coffee and crackers and some clothing strewed about and boxes of jewelry.” He also observed that the appellant “was breathing hard as if to have been running.” The officer asked him his name and “he told me his name was Samuel Brown. I asked him where he lived. He said ‘I don’t have to tell you that.’ I asked him where he got that property. He said ‘I found it in the alley.’ ” The officer then testified that since “there had been a great amount of burglaries in the area * * * I placed him under arrest for investigation of burglary.” He conceded that at the time of the arrest he had no knowledge that the church or any other building in the area had been broken into that night.

It is well established that an arrest without a warrant for a misdemeanor being committed in the presence of the arresting officer is lawful. And it is equally well settled that an arrest by a police officer is lawful if he had probable cause at the time of the arrest to believe that a felony was being committed or had been committed and that the person arrested was committing or had committed it. Edwardsen v. State, 243 Md. 131; Leather-berry v. State, 4 Md. App. 300; Simms v. State, 4 Md. App. 160; Boone v. State, 2 Md. App. 479. “The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion.” Edwardsen v. State, supra, 136.

As was so cogently pointed out by Judge Hammond (now Chief Judge) in Braxton v. State, 234 Md. 1 (at p. 6) :

“The freedom of the individual from unwarranted or unjustified harassment and molestation by the police and his right to privacy, guaranteed by the Constitutional proscriptions against unreasonable searches and seizures on the one hand, and the needs of society on the other, require the striking of a balance not easy to achieve and the drawing of lines not always easy to draw.”

The case at bar highlights the soundness of the foregoing statement. To the arresting officer, as perhaps to any reasonably cautious citizen, the sight of a man pushing a baby carriage on a parking lot at 4:45 A.M. on a Sunday morning was unusual and, undoubtedly, created a suspicion in the officer’s mind that all was not right. Likewise, after listening to the appellant’s explanation and his refusal to give his address, the officer’s suspicion may have heightened. But the officer himself readily conceded that he was unaware that the church or any other building had been broken into that night. Thus, one of the essential ingredients of the rule of probable cause — reasonable grounds to believe that a felony had been committed — -was not within the knowledge of the officer unless it can be said that a reasonably cautious man, under the facts within the officer’s purview, would have had probable cause to believe that a felony had been committed and that the felony had been committed by the appellant. Measured by this standard, we are of the opinion that the facts and circumstances within the officer’s knowledge would not compel a reasonably cautious man to conclude that a felony had been committed, since the known conduct of the appellant at the time of the arrest was, at the least, equally consistent with innocent travel on a public thoroughfare. We are not here dealing with items of contraband such as weapons, narcotics, or burglar tools. Nor are we dealing here with items which in themselves are so unique or unusual as to give rise to a probability that they had been stolen. One can think of no more innocent conduct than a baby carriage filled with food stuffs being pushed by a husband or father on a public thoroughfare and, in this day of 24 hour work shifts, we are not prepared to find that such conduct, even at 4:45 A.M. on a Sunday morning, gives rise to such a probability that they were the fruits of a felony as to justify the warrantless arrest of the individual involved in such conduct.

It has been suggested by the State that the element of flight exists in this case and it is true that “flight, though not conclusive, is usually evidence of guilt.” Price v. State, 227 Md. 28, 33. However, the only evidence of flight was the testimony concerning the appellant’s heavy breathing and the fact that the officer drove around the block to overtake him and found him in a vestibule where he could not be readily seen from any substantial distance. This, in our opinion, is not conclusive evidence of flight for it is equally consistent to conclude that the appellant was unaware that he was being followed by a plain clothes officer in an unmarked car and his heavy breathing could have resulted from the energy expended in pushing the carriage. But even if we assume that flight is an element here, we think the holding of the Court of Appeals in Young v. State, 234 Md. 125, is dispositive of the State’s contention. There, two men were seen by a police officer, who had been alerted that two individuals had previously been observed trying automobile door handles on a parking lot, one with his arms full of packages, opened the trunk of an automobile. When the officer approached them, they slammed the trunk lid closed, and one of them “began walking off rapidly.” He was overtaken and arrested. In holding this to be an illegal arrest the Court said (at p. 130) :

“Although it was said in Price v. State, supra, at p. 33, that 'flight, though not conclusive, is usually evidence of guilt’ — see also Tasco v. State, 223 Md. 503, 165 A. 2d 456 (1960) and Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957) — there must exist other apparent circumstances upon which to base a reasonable assumption of guilt which was lacking here. In addition to this, in the cases last cited, the defendants literally ran from the police or scene of the crime, while in the present case the defendant just walked away rapidly.”

The conduct of the appellant here may have aroused the arresting officer’s suspicions. But this is not enough. In assessing the legality of a warrantless arrest, we must find probability, as contra-distinguished from suspicion. It is evident that the line is not easy to draw. It must be drawn on a case by case basis. Where it will be drawn can only be determined after a careful analysis of the facts and circumstances of each case which requires the striking of a balance between the Constitutional right of the individual to be free of unwarranted molestation and the requirements of society to be protected from the ravages of the criminal.

In the case at bar, we are of the opinion that the conduct of the appellant was not such as to give the arresting officer sufficient probable cause to believe that a felony had been committed and, since no misdemeanor was being committed in his presence, the arrest without a warrant was illegal.

The State argues, in the alternative, and the lower court so held, that the arrest was legal because the appellant was committing a misdemeanor in the presence of the officer, i.e., receiving stolen goods. We disagree. To so find requires the inference that the articles in the appellant’s possession had been previously stolen; that the appellant knew them to have been stolen ; and that he received them with fraudulent intent. There is no more evidence to support such an inference than there is to support a finding of probable cause to believe a felony had been committed'. It has also been suggested that the misdemeanor of “asportating larcenied goods” was being committed but this conclusion must rest upon the same unsupportable inference. Since we are of liie opinion that the arrest was illegal it follows that the articles seized as an incident thereto were improperly admitted into evidence. Mapp v. Ohio, 367 U. S. 643; Belton v. State, 228 Md. 17; Young v. State, supra; McCarthy v. State, 2 Md. App. 400; Randolph v. State, 1 Md. App. 441.

In view of our holding above, we do not reach the appellant’s remaining questions.

Judgment reversed.

ORTH, J.,

dissenting:

I am constrained to dissent from the majority opinion because I think the arrest of the appellant ivas valid. The general rule is firmly established that a warrantless arrest by a police officer is valid wliere he has probable cause to believe that a misdemeanor has been or is being committed in his presence or view and that the arrestee is the misdemeanant. Robinson v. State, 4 Md. App. 515, 522; Thompson v. State, 4 Md. App. 31, 37; Salmon v. State, 2 Md. App. 513, 522. The majority correctly state the rule of probable cause as a “non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion,” quoting Edwardsen v. State, 243 Md. 131 at 136. That is, whether, at the time of the arrest, the facts and circumstances within the officer’s knowledge, by his seeing, hearing, feeling, tasting or smelling were sufficient to warrant a prudent man in believing that the accused was committing a misdemeanor in his presence or view. See Beck v. Ohio, 379 U. S. 89, cited in Edwardsen. Md. Code, (1967 Repl. Vol.), Art. 27, § 341(a) provides that if any person shall steal, take or carry away personal goods of another under the value of $100 and being thereof convicted, he shall be deemed guilty of a misdemeanor. An essential element of larceny at common law is the asportation of the property, that is a carrying away, at least to some extent. Clark and Marshall, Law of Crimes (6th Ed.) § 12.05, pp. 736-741; Perkins, Criminal Law, (1957) ch. 4, § IE, pp. 221-223. This requirement is not eliminated by the Maryland statute; on the contrary § 341 makes it a misdemeanor to steal, take or carry away personal property of another. In Worthington v. State, 58 Md. 403, 409, involving a common law larceny, the court stated that at common law, every asportation is a new taking.

In the instant case the issue on which the majority reversed was the admission of evidence seized by a search as a result of the arrest. As they found that the arrest was not valid, it necessarily followed that the search was unreasonable, and as the search was unreasonable, it was error not to exclude evidence obtained thereby. I agree that the facts and circumstances did not justify the arresting officer to believe that a felony had been committed for he could not properly conclude merely from what he observed that the baby carriage and the articles therein were of a value of $100 or upwards. Code, supra, Art. 27, § 340. But recognizing that probable cause is more than suspicion and possibility but less than demonstration and certainty, I have no difficulty in finding that the officer had reasonable grounds for belief that the appellant was in the process of carrying away the personal goods of another within the proscription of Code, supra, Art. 27, § 341. At 4:45 A.M. the officer saw the appellant pushing a baby carriage in a primarily commercial area of Baltimore City. The officer testified:

“As I reached the intersection of Hamilton and Park Avenue, I looked directly across the street, which is a parking lot which goes — the asphalt goes right up to the rear of the buildings to the rear of the 200 block of West Franklin Street. At that time about half-way up the block I observed a man pushing a baby carriage. I deemed it necessary because of the time of the morning to investigate.
As I proceeded across the parking lot, the man had turned south on Tyson Street, heading towards the 200 block of Franklin. As I came to Tyson Street and looked south, the man had gone; so was the baby carriage.
1 went south on Tyson to Franklin and as I hit the intersection of Tyson and Franklin Street, the man and the baby carriage was going out Franklin Street. I got out of the automobile and proceeded west on Franklin Street * * *
As I proceeded west on P'ranklin Street on foot, T observed the man and the baby carriage inside the hallway of the vestibule of the commercial premises of 214 West Franklin Street. As I approached him, I asked him what his name was and what he was doing there and I also looked at the baby carriage, at which time I observed there was a price tag on the baby carriage for $7.50. I could see visually cans of coffee and crackers and some clothing strewed about and boxes of costume jewelry. * * *
I asked him what his name was and he told me his name was Samuel Brown. I asked him where he lived and he told me that it wasn’t any of my business; that he didn’t have to tell me that. I asked him where he got this property at. Pie said he found it in the rear alley. I also observed at this point that the defendant, Samuel Brown, the man sitting over there with the brawn jacket on at the trial table, was breathing heavy as if to have been running.”

He then placed him under arrest. In light of the circumstances under which the officer observed the appellant — the time of day, the location, what the appellant was doing, how he was doing it, his actions upon being observed of proceeding into a vestibule of a commercial building, the price tag on the baby carriage, the miscellaneous variety of articles within the carriage, his completely unsatisfactory explanation of his presence and his possession of the articles — to say that those circumstances, observed by the officer, were not sufficient to warrant a prudent man in believing that the appellant was carrying away the personal goods of another, and thus, at the time, committing the misdemeanor of petit larceny in the presence of the officer, is completely unjustified. I do not see how a prudent and reasonably cautious man could believe other than that the appellant was a thief caught flagrante delicto. I cannot find the actions of the appellant so “consistent with innocent travel 'on a public thoroughfare” as to preclude this belief. I think it immaterial that the officer was not aware, at the time of the arrest, that the baby carriage and its contents had in fact been stolen from the church shortly before. Of course, that the property was in fact stolen would have to be proved to establish the corpus delicti on the issue of innocence or guilt but the issue here is not innocence or guilt but probable cause for the arrest. Probable cause need not be sufficient to justify a conviction. As asportation of stolen goods is a necessary element of larceny, it is clear that the officer had reason to believe that the misdemeanor was being committed in his presence. To attain this belief it is not required that he actually see the initial taking; seeing the carrying away, proscribed by the statute, was sufficient. In assessing the validity of the arrest under the rule, the essential ingredient is that probable cause existed within the knowledge of the arresting officer, and not that he necessarily construed that knowledge correctly. Nor is the offense of which the arrestee is subsequently charged or convicted controlling. Simms v. State, 4 Md. App. 160, 167. The majority make the bald assertion that no misdemeanor was committed in the presence of the arresting officer and brush aside consideration of the asportation of the property as resting on “the same unsupportable inference” which they rejected as to receiving stolen goods. I do not agree. The elements required of receiving stolen goods — that they were stolen by some one else and received by the accused both with knowledge that they had been stolen and with fraudulent intent, are not elements of petit larceny; the accused cannot be at the same time both the thief and the receiver. Fletcher v. State, 231 Md. 190.

As the majority state, the line between probability and suspicion must be drawn on a case by case basis and where it will be drawn can only be determined after a careful analysis of the facts and circumstances of each case. I have no difficulty in this case upon such analysis in determining where the line should be drawn. The application of the facts here to the rules of law relied on by the majority leads me to the unescapable conclusion that the arrest of the appellant was valid. Therefore the search was reasonable and evidence seized thereby was properly admissible.

As I find no merit in the other two contentions presented on appeal by the appellant, I would affirm the judgment.

Judge Anderson has authorized me to state that he joins in this dissent.

      . And see Robinson v. State, supra, as to receipt by an officer of a police broadcast that a misdemeanor was committed in the presence of another member of the police team.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    ROBERT LEE SMITHSON v. STATE OF MARYLAND
    [No. 1,
    September Term, 1968.]

      Decided November 15, 1968.

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

      Earl E. Manges for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald W. Mason, State's Attorney for Allegany County, and Paul J. Stakem, Assistant State’s Attorney for Allegany County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Robert Lee Smithson, the appellant, was convicted of armed robbery by a jury in the Circuit Court for Allegany County. He was sentenced to a term of ten years to run concurrently with a sentence of ten years for larceny of an automobile. He was tried jointly with John David Lease and John Leroy Bee-man. Prior to the trial, the defendant moved for a separate trial in accordance with Maryland Rule 735 which the trial judge denied. Although none of the three defendants testified, the confession of John David Lease was introduced into evidence, implicating Smithson in the larceny of an automobile soon after the crime of robbery had been committed. The statement was relevant to the present conviction only in that it placed the three defendants together near the scene of the robbery at or about the time that crime was committed. In accordance with the Supreme Court ruling in Delli Paoli v. United States, 352 U. S. 232, 77 S. Ct. 294, 1 L.Ed.2d 278 the trial court issued a precautionary instruction to the jury stating that Lease’s confession could be considered only in the determination of his guilt and not that of the two co-defendants.

Subsequent to the trial of this case below the Supreme Court of the United States in Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 overruled Delli Paoli, supra, and it held that in a joint trial the introduction of an extrajudicial statement of one co-defendant implicating another violates the right of the other to have the witnesses confront him as secured by the Sixth Amendment of the Constitution of the United States, quoting Pointer v. Texas, 380 U. S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 that the “ 'major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross examine the witnesses against him’ The Court specifically ruled that the precautionary instruction approved in Delli Paoli, supra would not cure the constitutional error.

In a subsequent case Roberts v. Russell, 392 U. S. 293, 88 S. Ct. 1921, 20 L.Ed.2d 1100 the Court pointed out that the Confrontation Clause of the Sixth Amendment had been made applicable to the states by the Fourteenth Amendment, and it held that Bruton, supra was completely retroactive.

The State attempts to distinguish Bruton, supra by the argument that since Smithson endorsed the confession of Lease with a statement he concurred therein, Bruton, supra would not be applicable. We do not think that this fact overcomes the basic objection that the accused in this appeal was convicted in part by a witness who did not testify and who was never subjected to cross-examination. We do not think that police officers can be permitted to avoid the effect of Bruton by the simple expedient of having each accused concur in what the other admitted.

In effect the State’s argument is that on this factual situation we can apply Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 and declare our belief beyond a reasonable doubt that the error wras harmless. That opinion, however, indicated that some constitutional rights were so basic to a fair trial that their infraction can never be treated as harmless error. In footnote 8 the Court in Chapman, supra referred to three of these rights as follows:

“8 See, e.g., Payne v. State of Arkansas, 356 U. S. 560, 78 S. Ct. 844, 2 L.Ed.2d 975 (coerced confession); Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (right to counsel); Tumey v. State of Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 L.Ed. 749 (impartial judge).”

These cases have been held to be completely retroactive. See discussions in Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L.Ed.2d 601, Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L.Ed.2d 882. When the Court in Roberts v. Russell, supra held Bruton, supra to be in the same category, we think it may also have held that the harmless error rule was not applicable when a confession or statement of a co-defendant which implicates the other, was introduced at a joint trial. This indication is buttressed in the Bruton opinion when it compares the principle of Bruton to the principle of Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 1780, 12 L.Ed.2d 908 in which case the Court said:

“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U. S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction.”

While the rule may well be as we have stated that some constitutional errors can never be harmless we do not base our decision to reverse on such a rigid rule. The Court in Chapman stated that it was restating the harmless error rule it had applied in Fahy v. State of Connecticut, 375 U. S. 85, 84 S. Ct. 229, 11 L.Ed.2d 171, wherein the Court at 84 S. Ct. at 230 stated :

“We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”

When the co-defendant’s out of court statement placed Smithson near the scene of the crime, at or about the time the crime was committed it is difficult for us to find beyond a reasonable doubt that this evidence did not in any way contribute to the conviction, even though there was other ample evidence to support the conviction.

Smithson raises three other points which require little discussion. He contends it was error to admit his confession of a different crime, but it is a familiar principle that evidence of other crimes can be admitted when the evidence serves to identify the accused with the crime charged. Thomas v. State, 3 Md. App. 708, 240 A. 2d 646. He contends that it was an error to admit into evidence a Norelco razor found in a suitcase at the time of his legal arrest. The razor was identified as the one taken in the robbery. Under these circumstances all that is required to admit an exhibit is reasonable probability of connection with the defendant, Veihmeyer v. State, 3 Md. App. 702, 240 A. 2d 649. The claim of insufficiency of the evidence can be disposed of by pointing to the testimony of the victim who described the robbery and identified the defendant. The weight of the evidence is for the trier of the fact, Gibson v. State, 4 Md. App. 222, 242 A. 2d 204.

Judgment reversed and case remanded for a new trial.

      . “Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ‘A defendant is entitled to a fair trial, but not a perfect one’. Lutwak v. United States, 344 U. S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593; see Hopt v. People of Utah, 120 U. S. 430, 438, 7 S. Ct. 614, 617, 30 L. Ed. 708; cf. Fed. Rule Crim. Proc. 52 (a). It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Compare Hopt v. People of Utah, supra; Throckmorton v. Holt, 180 U. S. 552, 567, 21 S. Ct. 474, 480, 45 L. Ed. 663; Mora v. United States, 5 Cir., 190 F. 2d 749; Holt v. United States, 10 Cir., 94 F. 2d 90. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. Pointer v. State of Texas, supra.” Bruton, supra, at 88 S. Ct. at 1627.

      . Mr. Justice White dissenting in Bruton, supra, 88 S. Ct. at 1629 said of the majority opinion:
      “It would apparently also reverse every other case where a court admits a codefendant’s confession implicating a defendant, regardless of cautionary instructions and regardless of the circumstances. I dissent from this excessively rigid rule.”

      . The question of the application of the Chapman harmless error rule to Bruton, supra has been considered in two recent cases. In Johnson v. Yeager, (3rd Cir. 8/33/68) 3 CrL 2481 the Court found that the error was not harmless. In People v. DeVine, (Queens County Sup. Ct. N.Y. 9/25/68) 4 CrL 2029 the Court found the error to be harmless.


author: Orth, J.,

text:
    RICHARD YOUNG v. STATE OF MARYLAND
    [No. 59,
    September Term, 1968.]

      Decided November 15, 1968.

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

      Henry J. Noyes for appellant.

      1Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Brands B. Burch, Attorney General, William A. Unthicmn, Jr., State’s Attorney for Montgomery County, and Theodore Miller, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty of assault and battery by a jury in the Circuit Court for Montgomery County and sentenced to imprisonment for a term of 3 years.

At the close of all the evidence, the court instructed the jury, closing arguments of counsel were heard, and the jury retired for its deliberations. About an hour and a half later the foreman of the jury sent a note to the trial judge, asking, “Is wielding a deadly weapon in an assault and battery case considered an intention to kill?” The transcript of the proceedings shows that the jury was returned to the box, the court further instructed them in response to the note, the jury again retired and returned about two hours and a quarter later with its verdict. The transcript of the trial is silent as to whether or not the appellant and his counsel were present when the court gave the additional instructions but the State on this appeal has stipulated that they were not. And it appears from the transcript of the proceedings at a hearing on a motion for a new trial, based on the ground that the appellant and his counsel were not present (the motion was denied), that the appellant and his counsel were not present when the court gave the additional instructions, that neither the appellant nor his counsel had been informed, before the additional instructions were given, that the jury had communicated with the judge, or that the judge intended to instruct further in answer to the note. Counsel for the appellant did not learn of the matter until the day after the trial was concluded.

On appeal from the judgment it is contended that the court erred in instructing the jury out of the presence of the appellant and his counsel. We agree that the court erred. We think that the error requires reversal and that the appellant must be afforded a new trial.

Our decision is compelled by that provision in Amendment VI of the Constitution of the United States which guarantees that in all criminal prosecutions, the accused shall enjoy the right “* * * to have the Assistance of Counsel for his defense,” and by that provision in Art. 21 of the Declaration of Rights, Constitution of Maryland “That in all criminal prosecutions, every man hath a right * * * to be allowed counsel * * *.” The VI Amendment guarantee is made obligatory on the States by Amendment XIV. Gideon v. Wainwright, 372 U. S. 335, overruling Betts v. Brady, 316 U. S. 455. It is fundamental that the constitutional provisions guarantee that counsel be present at trial, and embrace representation throughout the entire trial in all its stages. The appellant here was denied such representation. It is clear in this State that the giving of instructions to the jury is a stage of the trial. See Brown v. State, 225 Md. 349; Midgett v. State, 216 Md. 26. Therefore the appellant was entitled to have his counsel present when the court gave the additional instructions to the jury. The constitutional right to have the assistance of counsel necessarily includes the presence of counsel when instructions are given to the jury, absent a waiver. By the provisions of Md. Rule 756 when the court’s charge is not delivered until after argument of counsel to the jury, the court shall, in advance of such argument, advise counsel of its proposed action on the substance of the instructions which it proposes to give, § d. If the instructions are given prior to the argument of counsel, counsel shall not be precluded from arguing to the contrary, § e. Objection by a party to any portion of an instruction given or to any omission therefrom or failure to give any instruction shall be made before the jury retires to consider its verdict and the opportunity shall be given to make the objection in open court out of the hearing of the jury, § f. And on appeal a party assigning error in the instructions may not assign as of right an error unless the particular portion of the instructions given or the particular omission or particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and the grounds were stated at that time, § g. With regard to the additional instructions the court here did not comply with § d. Appellant’s counsel was given no opportunity to argue to the contrary to the instructions given, § e, nor to object, § f, and would be precluded from assigning error therein as of right on appeal, § g. It cannot be said in those circumstances that the appellant was afforded the assistance of counsel or a genuine and effective representation at that stage of the trial; he was afforded no representation at all.

Our decision is also compelled by the involuntary absence of the appellant when the additional instructions were given. The right of the accused to be present at every stage of his trial is a common-law right preserved by Art. 5, Declaration of Rights, Constitution of Maryland, and stated with particularity in Md. Rules, 775. Journigan v. State, 223 Md. 405, 408. See Tiller v. Warden, 1 Md. App. 286, 292. It is a right personal to the accused and cannot be waived by his counsel. Midgett v. State, supra, at 37. In Midgett, at 36, the Court said:

“In this State there is no doubt that an accused in a criminal prosecution for a felony has the absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged, and there can be no valid trial or judgment tinless he has been afforded that right.” (emphasis supplied)

But the opinion continued :

“The constitutional guarantee includes the right of the accused to be present (i) when the jury is charged or instructed on the facts, the law or form of the verdict, before it has begun its deliberations or after-wards upon its request or by direction of the court ; (ii) when the court is repeating a charge or instruction previously given in whole or in part; (iii) when the court communicates with the jury in answer to questions propounded by the jury, or (iv) when there shall be any communication whatsoever between the court and the jury; unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.”

As the State on this appeal construes this, instructions to the jury are encompassed within “any communication whatsoever between the court and jury” and therefore there is no reversible error when instructions are given in the involuntary absence of the appellant when the record affirmatively shows that such instructions were not prejudicial or had no tendency to influence the verdict of the jury. It urges that since the additional instructions related to the offense of assault with intent to murder and since the appellant was acquitted of that offense, “no prejudice could possibly have resulted from the instruction in the instant case and therefore, there was no error.” We do not believe that this construction of the passage is compatible with the statement of the Court immediately preceding it that an accused has “the absolute right” to be present at every stage of his trial and that there can be no valid trial or judgment unless the accused has been afforded that right. We think that the Court distinguished between “instruction or charge” on the one hand and “communication” with the jury on the other hand. Intercourse between the judge and the jury as to the facts, the law or the form of verdict would necessarily be a “charge or instruction” and intercourse between the judge and jury as to matters other than those would be a “communication.” So when the judge “communicates with the jury in answer to questions propounded by them,” it may be a “charge or instruction” or merely a “communication” depending on the subject matter. Since the instruction or charge of the jury is a part of the trial, as we have stated supra, the accused has the absolute right to be present when a charge or instruction is given. But a mere “communication” by the judge to the jury is not a part of the trial and the accused is not entitled to be present as a matter of right. But even then there is reversible error “unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.” As we construe Midgett the rule is as follows:

(1) it is reversible error for the court to charge or instruct the jury trying the case, on the facts, the law or the form of the verdict at any time during the involuntary absence of the defendant, even though the charge or instruction is a repetition of a charge or instruction previously given in whole or in part, prejudice being conclusively presumed; and (2) it is reversible error for the court to communicate in any other manner with the jury trying the case, during the involuntary absence of the defendant unless the record affirmatively shows that such communication was not prejudicial or had no tendency to influence the verdict of the jury.

The cases in other jurisdictions discussed in Midget t do not compel a different construction of the rule. They turn, not on the right of the accused to be present at the trial, but on the constitutional and statutory rights of an accused to a jury trial. If the communication was an unauthorized interference with the deliberations of the jury, tending to overcome reasonable doubts and coerce a verdict, as it appeared to be in McBean v. State, 83 Wis. 206 (1892); State v. Kiefer, 16 S. D. 180 (1902); Shields v. United States, 273 U. S. 583 (1927) and Strasheun v. State, 138 Neb. 651 (1940), it would be clear error whether or not the accused was present.

The few cases in this jurisdiction relating to the matter support our construction. In Duffy v. State, 151 Md. 456, cited in Midgett, instruction to the jury as to the form of their verdict was given out of the presence of the defendant. The court reversed the judgment. It quoted with approval State v. Shutzler, 82 Wash. 367, at 475: “Since it is the right of the accused to be present at every stage of the trial when his substantial rights may be affected, it is no answer to say that in the particular proceeding nothing was done which might not lawfully have been done had he been personally present.” The lower court certified that the instructions, given in the absence of the accused, were the same as those given in his presence, but it appeared to the Court of Appeals “that the jury did not understand the instructions given in his presence, or they would not have asked for further instructions.” Noting that what the further instructions were, or what was written on the memorandum which guided the foreman in announcing the verdicts did not appear in the record, the Court said, at 476:

“It may be that it' was a mere form of verdict and that it did not injure the defendant, but in dealing with an absolute constitutional right, the citizen ought not to be at the mercy of speculation as to whether the violation of it did or did not injure him. Since the jury did not understand the instructions as first given, it may have been that the prisoner, if present, when they were instructed a second time, would have asked that they be made clearer, or he may have objected to their form. * * * If we held that under such circumstances he had no right to be present, it is not easy to say under what circumstances his presence would be essential.”

It held :

“[T]he instruction of the jury as to the form of their verdict was a part of the trial, and in giving it during the involuntary absence of the prisoner, while he was in the custody of the police, the court erred, and injury must be attributed to that error.”

In LaGuardia v. State, 190 Md. 450, cited in Midgett, it was contended that one of the trial judges committed error when he sent a communication to the jury during the course of their deliberations at a joint trial of three defendants for rape. Only two of the defendants appealed. The Court said, at 458:

“We hold that if the record shows affirmatively that the appellant was prejudiced by an improper communication of the judge with the jury, there is reversible error; and also that if the record shows error by such communication, but does not show whether or not the error was prejudicial, it is presumed to be prejudicial and requires a reversal. On the other hand, if the record shows affirmatively that the communication had no ‘tendency to influence the verdict’ the judge’s impropriety in communicating with the jury out of the presence of the defendant does not require a reversal.” (citations omitted)

The jury had been instructed before they retired for their deliberations that they had the right in their discretion to make any recommendation of mercy which they desired to make if they found the defendants guilty on any of the counts in the indictment. During their deliberations they sent a message to the court inquiring whether less than twelve jurors could recommend mercy for one of the defendants. The judge sent them a reply, with the defendants not present, that less than twelve could recommend mercy. Less than a majority did recommend mercy for the defendant who did not appeal. No juror made any recommendation concerning either of the defendants who appealed. The Court found that in these circumstances the communication could not have caused the defendants who appealed any prejudice. “It had no direct relation to the verdict whatsoever and no possible indirect constraining relation.” It thus distinguished the case from Duffy v. State, supra. As the communication was not on the law or the facts and was found to be not on the form of the verdict, it was not an instruction and the presence of the defendants was not required. We think it significant that the Court said that as the case was distinguishable from Duffy, “it is not necessary * * * to consider what exceptions, if any, there are to the general rule stated in that case, which was based upon the flagrant violation of constitutional rights * * (emphasis supplied) In Brown v. State, 236 Md. 505, it was contended that Md. Rule 775 was violated by the trial judge when an attempt was made by two jurors to communicate with him privately with regard to the case. They went separately to his chambers indicating a desire to submit a question for answers. The judge requested them to wait until the resumption of trial the following morning when they could put the questions in writing, hand them to the bailiff, and the judge would call counsel to the bench. The audience with the judge was thus summarily terminated. It is obvious that this was merely a “communication,” as we construe it, not made during a stage of the trial. As the Court found that actions of the judge under the circumstances were prudent and not prejudicial to the defendant, there was no reversible error.

The weight of authority in other jurisdictions supports our view. See 21 Am. Jur. II d, § 299, p. 326.

In view of our holding we do not reach the other questions presented.

Judgment reversed and case remanded for a new trial; costs to' be paid by the county council of Montgomery County.

      . The appellant was charged under indictment 8810 with assaulting and beating Herbert Lee Willis in the 1st count and with assaulting him in the 2nd count and under indictment 8811 with assault with intent to “kill and murder” Eleanor Gertrude Willis in the 1st count and assaulting and beating her in the 2nd count. The cases were tried together. The jury returned a verdict of guilty on the 2nd count of indictment 8811 and acquitted the appellant of all other charges.
      We note that in Maryland there is no specific common law or statutory crime of “assault with intent to kill” and it is not one and the same offense as “assault with intent to murder.” Marks v. State, 230 Md. 108; Jenkins v. State, 3 Md. App. 243.

      . The provision in Art. 21, Declaration of Rights was intended to do away with the common law rules of England which denied representation by counsel. Raymond v. State, 192 Md. 602. The Supreme Court cases have construed the federal constitutional guarantee to apply to “critical” stages of the proceedings — the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate the accused’s right to a fair trial. United States v. Wade, 388 U. S. 218 and cases cited in note 4 therein; Miranda v. Arizona, 384 U. S. 436. Obviously the guilt stage of the proceedings cannot be deemed as other than a “critical” stage.

        . For the duty of the court to assign counsel see Md. Rule 719.

      . See e.g., Powell v. Alabama, 287 U. S. 45; Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59; Escobedo v. Illinois, 378 U. S. 478; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218.

      . See Smallwood v. Warden, 205 F. Supp. 325 (1962); Yopps v. State, 228 Md. 204.

      . However, the trial of a criminal case is temporarily suspended in order that the judge may investigate legal questions presented by the instructions which are tendered. The trial is resumed when the trial judge has reached his conclusions and is about to communicate the instructions to the jury. The interval has been devoted, not to the trial, but to preparing for the trial. Palmer v. Commonwealth, 130 S. E. 398, cited with approval in Brown v. State, 225 Md. at 352-353. “The reception of prayers and supporting oral argument has never been considered as a part of the trial.” 225 Md. at 353.

      . In the circumstances of the instant case there is, of course, no question as to a waiver of the right.

      . At the hearing on the motion for a new trial the lower court offered to permit defense counsel to make objections to the additional instructions nunc pro tunc, but counsel refused to do so. In any event this would not have cured the other defects arising from the absence of counsel when the additional instructions were given to the jury. Nor does the fact that the additional instructions related in the main part to the offense of assault with intent to murder on which the jury found a verdict of not guilty affect our holding. Defense counsel had a right to argue contrary to the instructions given and we cannot speculate what effect such argument would have had on the jury’s consideration of the offenses and its ultimate verdict.

      . Md. Rule 775 provides, with exceptions not here pertinent: “The accused shall be present at the arraignment, at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence * * Md. Rule 702c defines “accused” as “a person charged with a criminal offense.” Neither rule makes a distinction between felonies and misdemeanors. Midgett v. State, supra, states the right only as to a felony. In Brown v. State, supra, at 351, the Court said: “We have construed Art. 5, Declaration of Rights, as giving the defendant the right to be present at every stage of the trial,” but the prosecution there was for a felony. See Dutton v. State, 123 Md. 373; Wheeler v. State, 42 Md. 563. The appellant here was being prosecuted for a felony, Md. Code (1967 Repl. Vol.), Art. 27, § 12, and, in any event, we think it clear that the provisions of Rule 775 with regard to the presence of the accused at arraignment and every stage of the trial, considered with the definition of “accused” stated in Rule 702c, are applicable to prosecutions for both felonies and misdemeanors.

      . Except in the prosecution of an offense punishable by death, the defendant’s voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. Md. Rule 775.

      . At the time there was no statute in Maryland authorizing the jury to recommend mercy in any criminal case and it was generally held that, in the absence of statutory authority, a recommendation of mercy was mere surplusage, did not affect the verdict and did not require reversal. The practice of permitting the jury to recommend the defendant to the mercy of the court was of great antiquity, although they had no express authority to do so.


text:
    RANDOLPH JOSEPH HALL, JR. v. STATE OF MARYLAND
    [No. 62,
    September Term, 1968.]

      Decided November 15, 1968.

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

      James W. Murphy (Alan H. Murrell on brief) for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Joseph R. Raymond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty generally by the court sitting as a jury in the Criminal Court of Baltimore under an indictment containing four counts charging violations of the lottery laws. He was sentenced to imprisonment for a term of 6 months and fined $1000, the sentence of imprisonment to be suspended upon payment of the fine and court costs. The sole contention on appeal from the judgment is whether there was probable cause for the issuance of a search warrant under the authority of which a search was conducted and articles seized thereby were received in evidence against the appellant at his trial.

Subsequent to the indictment of the appellant and prior to his trial, he filed a motion to quash the indictment. At the trial on the merits, the lower court found that the warrant was “legally sufficient" and denied the motion.

The law relating to probable cause for the issuance of a search warrant is clear. When it is made to appear to a judge or justice of the peace of this State by a written application signed and sworn to by the applicant, accompanied by an affidavit containing facts within the personal knowledge of the affiant, that there is probable cause to believe that a crime is being committed by any individual or in a building within his territorial jurisdiction, and that evidence of the crime is upon the person or within the place to be searched, he may issue a search warrant. Salmon v. State, 2 Md. App. 513, 519; Md. Code, Art. 27, § 551.

“Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued. In making his determination this judicial, hypothetical, ‘cautious and prudent man’ may give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant.” Henson v. State, 236 Md. 518, 521.

When the question of probable cause for the issuance of the warrant comes before the trial court, its consideration of whether or not there was probable cause should be confined solely to the affidavit itself. Smith v. State, 191 Md. 329, cert. den. 336 U. S. 925; Scarborough v. State, 3 Md. App. 208. But it should be mindful, as we are when the question reaches us, of the observations so forcefully made by the Supreme Court in United States v. Ventresca, 380 U. S. 102. We summarized those observations in Frey v. State, 3 Md. App. 38, 45-46:

“That the requirements of the Constitution are practical and not abstract, that search warrants must be tested and interpreted by magistrates and courts in ‘a commonsense and realistic fashion,’ that the preference to be accorded a warrant indicates that in a doubtful or marginal case a search under a warrant may be sustainable, where without one it would fail and that ‘a grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting,’ and finally that:
‘This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. See Aguilar v. Texas, supra [378 U. S. 114, 12 L. Ed. 2d at 729]. Recital of some of the underlying circumstances in the affidavit is essential [as it is under the Maryland statute] if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, at 270 [of 362 U. S.].’ ”

Although the law is clear, its application must necessarily be made on a case to case basis, as the facts stated in an affidavit accompanying the application for the warrant vary according to the circumstances of the particular case.

In the instant case the facts to show probable cause were based in the main part on the observations of an officer of the Baltimore City Police Department. It was stated in the affidavit that a complaint was received that violations of the lottery laws were being committed in Randy’s Confectionery and in a 1963 blue Thunderbird automobile, Maryland license GR85-71. Randy’s Confectionery, so designated by a sign on the front of the store, was a grocery store in the first floor of the premises 1436 Holbrook Street, Baltimore City located on the southwest corner of Holbrook and Oliver Streets. The officer “watched in the vicinity of said premises” on each of three days. On 6 November 1967 he arrived about 9:40 A.M. and remained about an hour. During this period seven men and eight women entered the store. Two of the women were carrying “small brown paper bags” when they entered but not when they left. About 10:28 A.M. a man, designated in the affidavit as the First Man, came out of the store, walked over to a 1963 blue Thunderbird, Md. license GR85-71 parked on the Oliver Street side of the store and was about to enter the car when a man, designated in the affidavit as the Second Man, walking across the street from the northwest corner of Holbrook and Oliver Streets, hollered to the First Man. The Second Man handed the First Man “what appeared to be several slips of white paper and U. S. currency.” The First Man entered the car and drove away. On 8 November the officer arrived in the vicinity of the store about 9:55 A.M. and remained about two hours. He saw nine women and eleven men enter the store at various times, remaining therein only a short time before leaving. About 10:25 A.M. the Second Man went into the store, came out “empty handed” in about two minutes, and walked away. About 11:00 A.M. the First Man came out of the store, walked to the same Thunderbird automobile which was parked on Holbrook Street near the store, looked up and down Holbrook Street for several minutes and reentered the store. About 11:50 A.M. two young boys about 8 or 9 years of age, one wearing a red hat, ^walked down Oliver Street from Aisquith Street. The affidavit then reads:

“I overheard the young boy with the red hat ask the other boy ‘Where are you going now?’ The other youth replied down ‘Randy’s’ store. The boy with the red hat then said, ‘You told me you didn’t have any money.’ The other boy replied ‘Miss Mary gave me a nickel to take her numbers down the store, so I am going back and get a bag of potato chips and I will give you some.’ ”

On 11 November the officer arrived in the vicinity about 10:00 A.M. and remained about an hour and three quarters. He saw eight women, six young girls, seven men and five young boys enter the store “on separate occasions.” About 10:30 A.M. the Second Man entered the store after engaging in a brief conversation with one of the women as she was leaving the store. The Thunderbird previously observed was parked on Oliver Street beside the store during the entire period of observation. Upon inquiry of the Department of Motor Vehicles it was ascertained that the Thunderbird was titled in the name of Randolph H. Hall. The officer stated in the affidavit:

“The lottery carried on and known as numbers requires that the play or slips be collected by certain people designated as runners or writers and then returned to persons or corporations conducting the game, and it is the belief of the affiant, founded upon his experience with such violations, that the persons referred to herein are runners or writers and are actively engaged in the business of conducting a lottery.”

The extent of the officer’s experience was not set out.

Unusual numbers of persons going to and from the premises are circumstances which may be given weight in determining the existence of probable cause. Wood v. State, 185 Md. 280, 286. But here the suspect premises were not a private residence, but a store, characterized as a grocery store in the affidavit. The affidavit does not allege that a grocery business was not being conducted on the premises and that the store was not open to such persons who from time to time desired to buy the goods on sale. It cannot be ascertained from the affidavit if the number of persons the affiant observed enter the store was unusual for the lawful business being conducted or that they were other than bona fide customers of the grocery store. The affidavit does not disclose whether or not the persons leaving the store were carrying articles they may have purchased therein (except the Second Man was once seen leaving empty handed) and it cannot be assumed that they were not. Accepting the statement based on the experience of the officer (see Fleming v. State, 201 Md. 145) that the conduct of the numbers activities requires that slips be collected from players by writers and turned in to those in the next higher echelon of the business, the affiant does not allege whether or not it is customary to have the slips turned in by a certain hour. The observations of the officer were discontinued before noon each day, so the affidavit does not show whether more persons or fewer persons or about the same number entered the store in the afternoon hours as were seen to enter in the morning. Nor does it show any precautionary measures to prevent intrusion of unwanted guests or to prevent detection. See Frankel v. State, 178 Md. 553; Goodman v. State, 178 Md. 1. While the incidence of brown paper bags as standard numbers equipment has been noted (see Gatewood v. State, 244 Md. 609) here only two women carrying small brown paper bags were seen on one day entering the store. No numbers were seen being played or written or received and no lottery slips were seen in the possession of anyone. On one occasion a man was seen to hand another man who came out of the store several slips of white paper and money. The man receiving these items did not reenter the store but drove away. There was no indication as to the size of the slips, whether they were of a type generally used in the operation of a lottery (see Fleming v. State, supra), whether they contained numbers or writing of any kind or whether they appeared to be numbers slips. The import of the conversation between the two boys is uncertain. The boy not wearing the red hat, planned, by what he said, to go to Randy’s store to buy a bag of potato chips with the nickel Miss Mary had given him for delivering her numbers to “the store.” But it is not clear whether he had already delivered the numbers or was on his way to deliver them. Nor is it clear that the store to which he had delivered them or was going to deliver them was Randy’s or some other store. The confusion is not clarified in the affidavit. It contains no statement that the affiant had seen the boy who received the nickel enter or leave Randy’s store prior to the overheard conversation, although at the time of the conversation, 11:50 A.M., the affiant had been observing the store for almost two hours, nor does it state that the affiant saw him or his companion enter the store after the conversation. For some reason undisclosed in the affidavit, the affiant discontinued his observations six minutes after the conversation took place and no further mention is made of the boys.

We do not think that the trial judge was justified in finding probable cause for the issuance of the warrant. We do not believe that this is such a doubtful or marginal case as to allow its determination to be by the preference to be accorded to warrants. Compare Propst v. State, 5 Md. App. 36. We feel that the facts and circumstances in the affidavit showed, at the most, suspicion or possibility that violations of the lottery laws were being conducted on the premises and in the automobile designated in the -warrant. Suspicion or possibility is not enough. The admission of the challenged evidence was error.

Judgments reversed; case remcmded for a new trial; costs to be paid by the Mayor and City Council of Baltimore.

      . It appears from the provisions of Md. Rule 729 that the proper procedure whenever property is claimed in a court to have been obtained by an unlawful search or seizure is to move for its suppression or exclusion. In the instant case we shall treat the motion to quash the indictment as a motion to exclude the property seized.


author: Per Curiam.

text:
    CHARLES CASHDAN v. WARDEN, DEPARTMENT OF CORRECTION
    [No. 79,
    September Term, 1968.]

      Decided November 15, 1968.

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

On 12 April 1967 in the Circuit Court for Prince George’s County the applicant was charged with two offenses of obtaining money from Ada Green by a false pretense — in criminal trials No. 6292 with obtaining $885 and in criminal trials No. 7042 with obtaining $499. He was arraigned on 20 April and appearance of counsel for him was entered in open court. He moved for a Bill of Particulars on 21 April and an answer to the motion was filed on 4 May. He petitioned for and was granted a continuance on 12 June. On 28 August he pleaded guilty to case No. 7042 and the plea was accepted. A pre-sentence investigation report was ordered. Case No. 6292 was placed on the stet docket. On 27 October there was filed a document in proper person entitled “Appeal — To: Change of Plea; Appeal To: Continue or Set New Bond,” requesting that he be allowed to withdraw his plea of guilty. With regard to the withdrawal of his plea he gave as the reasons “because: I was ill advised, under hypertension, sick with emotional strain, spastic-colitus, and kidney stones. I am under three physicians care.” He also alleged that immediately before trial restitution of $1000 had been made and thereafter another $770 had been paid, the total being the entire amount claimed to have been obtained. He then said, “Naturally I was laboring under certain impressions, but now, being put in jail makes me apprehensive as to the wisdom of my plea, and the legality of the promised exchange of money. Therefore I ask the court to vacate my plea of guilty to not guilty and to continue bond on the two charges and set a new trial date. I intend to retain present counsel and hire help for him because he is too busy.” On 2 November the applicant appeared before the court for the imposition of sentence. He moved to be permitted to withdraw his guilty plea and to enter a plea of not guilty. The motion was denied and he was sentenced to imprisonment for a term of 5 years. On 3 November he filed a petition for a writ of habeas corpus and on 22 November it was dismissed by order of court without a hearing. On 23 May 1968 he filed a petition for relief under the Uniform Post Conviction Procedure Act. The petition alleged that he had informed his counsel that he was innocent as the prosecuting witness admitted at the preliminary hearing that the $499 had been paid for termite work done at her home but counsel “despite his protestation of innocence” persuaded him to enter a plea of guilty. Before sentencing he made three requests to withdraw his plea. When he was called before the court for sentencing, his counsel told the court that the applicant had told him the $885 was a loan to him but that he told him that no one would believe this and advised him to plead guilty. The pre-sentence report, however, stated that the $885 was a loan. Counsel felt, therefore, that he had given the applicant wrong advice — “I may have pulled a major ‘goof here.” As to the charge to which he pleaded guilty, counsel said, “Now the smaller count has problems because there was some work done and this is a termite situation, and she (the prosecuting witness) admitted some work was done with reference to the $499, so there is a problem that arises there.” The applicant contended that the refusal of the trial court to permit him to withdraw his plea of guilty and to allow him to plead not guilty and proceed to trial, was an abuse of discretion and a denial of his constitutional rights to a trial. After an evidentiary hearing on 31 July relief prayed was denied and he filed application for leave to appeal, claiming, in effect, that the order of the hearing court should be reversed because the hearing court erred in finding that the trial court did not abuse its discretion in denying a withdrawal of the plea of guilty. He urges error because it was shown at the hearing that he “had a meritorious defense to the said charge, which defense could be submitted to a jury to determine the guilt or innocence of the accused.”

We do not think that the issue before the hearing court was whether or not the applicant may have had a meritorious defense to the charges against him or that the evidence may not have been sufficient for the trier of fact to be convinced of his guilt beyond a reasonable doubt had the cases gone to trial. We feel that the issues at the hearing on the petition for relief were, first, whether the plea of guilty at the time it was made was free and voluntary and, second, whether the trial court abused its discretion in refusing to permit the plea to be withdrawn under the circumstances. The hearing court found that the plea to the one charge was freely and voluntarily made. It noted that the trial court had gone “into the merits of the plea, the quality of the plea and (the applicant’s) condition.” One of the questions the trial court asked before accepting the plea was “Are you pleading guilty for any other reason than that you are guilty as charged.?” And the applicant answered, “No.” We cannot say on the record before us that the hearing court was clearly erroneous in finding that the plea of guilty to the one charge was freely and voluntarily made. It was apparently a matter of trial tactics. It did result in a stet of the other charge. That the sentence imposed may have been more severe than the applicant hoped for did not make his plea involuntary. Nor did the feeling of his counsel in retrospect, upon reading the presentence investigation, that his suggestion to plead guilty may have been “ill-advised” make the plea involuntary. We think it obvious that no matters were developed in the investigation that were not theretofore known to the applicant, even though they may not have been all known, or if known, not believed, by his counsel.

Md. Rule 722 provides:

“The court may strike out a plea of guilty at any time and enter a plea of not guilty, if it deems such action in the interest of justice.”

In White v. State, 227 Md. 615, 625 the Court stated that Rule 722 “affords recognition of a practice which has long existed in this State.” Whether or not the power is to be exercised is largely one of discretion and even a showing that there may have been a defense raised to the crimes charged, if there had been no guilty plea, does not, of itself, make an entry of a guilty plea ineffective. Palacorolle v. State, 239 Md. 416, 420-421. The excerpts from the proceedings at the hearing on post conviction show only that there may have been a defense raised had the cases gone to trial. The success of the defense would have depended, of course, on the weight given to the evidence by the trier of fact and its judgment as to the credibility of the witnesses. We cannot say that the hearing court was clearly erroneous in finding on the evidence before it that the trial court did not abuse its discretion in refusing to permit the plea of guilty to be stricken.

Application denied.


text:
    BILLY RAY PREVATTE v. DIRECTOR, PATUXENT INSTITUTION
    [No. 57,
    September Term, 1968.]

      Decided November 18, 1968.

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

delivered the opinion of the Court.

On 13 July 1956 the applicant was indicted for murder in Prince George’s County. He filed pleas of not guilty, not guilty by reason of insanity at the time of the commission of the offense and not guilty by reason of insanity at the time of the trial. By order of court he was examined by the Department of Mental Hygiene and a report of the examination was filed. He elected a trial by jury and the case came on for trial on 31 October 1956 in the Circuit Court for Prince George’s County, Judges J. Dudley Digges and John R. Fletcher presiding. The trial concluded on 2 November 1956 and the jury rendered verdicts of sane at the time of the commission of the offense, sane at the time of the trial and guilty of murder in the first degree without capital punishment. He was sentenced to life imprisonment. A motion for a new trial was made and subsequently withdrawn. No appeal from the judgment was filed. By order of court he was examined for possible defective delinquency and upon a hearing before the court on 11 March 1957 he was found to be a defective delinquent and committed to Patuxent Institution. On 26 February 1968 he filed a petition for relief under the Uniform Post Conviction Procedure Act, and after counsel was appointed to represent him, two amended petitions, one on 7 May 1968 and the other on 17 May 1968 were filed. After an evidentiary hearing on 20 May 1968 in the Circuit Court for Prince George’s County the relief prayed was denied by Judge Ralph W. Powers by order of 27 May 1968 accompanied by a memorandum.

The petition for relief as amended raised six allegations of error. The application for leave to appeal, timely filed, gives as the grounds why the order should be reversed that the court erred in finding no merit as to each of the allegations and sets forth with particularity the reasons therefor. We shall consider each of the allegations but not necessarily in the order presented by the applicant and shall group them under five headings.

I

The applicant alleged that he was denied a fair and impartial trial. This allegation encompasses three intermingled contentions, (1) that there was adverse newspaper publicity, (2) that the jury was not impartial, and (3) that his trial counsel were not competent. It appears that the applicant was represented by two experienced attorneys; one was a former State’s Attorney “who had served in that office for a number of years” and the other was a former Assistant State’s Attorney. The hearing court found that the representation “was of a caliber substantially above average and very likely better representation than he would have had if he engaged an attorney of his own.” In a memorandum in support of the petition for relief, counsel for the applicant referred to newspaper articles “widely circulated in the county prior to verdict.” He complained that none of the eight voir dire questions submitted asked prospective jurors if they had read any of the articles. The hearing court considered testimony given by one of the attorneys who represented the applicant at his trial. The attorney said that “by the time the case came to trial (he) believed the climate here in Prince George’s County would be just as favorable, if not more so, than any other place.” The hearing court stated it could not say that the decision of counsel not to exercise the right of removal (Constitution of Maryland, Art. IV, § 8; Md. Code, Art. 75, § 44; Md. Rules, 738) was wrong and we cannot say that the hearing court was clearly erroneous in his judgment on the evidence before it. Newspaper disclosures standing alone do not support a defendant’s suggestion that he was denied a fair trial. McLaughlin v. State, 3 Md. App. 515. Nor can we assume in the circumstances that the jury violated its sworn duty to render a fair and impartial verdict. See Baker v. State, 3 Md. App. 251; Jones v. State, 2 Md. App. 429. There was testimony adduced at the hearing that several members of the jury were “well known at the Court House” but applicant’s counsel testified that he was aware of this and said he “knew those jurors better than the State’s Attorney did.” The decision of counsel that the jurors were acceptable, as was the decision not to remove the case, was a trial tactic and is not sufficient to show that the applicant was not afforded genuine and effective representation. See McCoy v. Warden, 1 Md. App. 108. The hearing court rejected the contentions that the applicant was denied a fair and impartial trial and effective representation and we cannot find that he was clearly erroneous in so doing.

II

The applicant alleged that the procedure in allowing the jury to consider both the issue of sanity and the issue of guilt or innocence was improper, claiming that the sanity issue should have been determined out of the jury’s presence and claiming further that the issue of his sanity at the time of the trial should have been determined first and separately from the issue of his sanity at the time of the commission of the offense. The standard for determining sanity with respect to criminal responsibility was, at the time of the applicant’s trial, under the provisions of Md. Code, Art. 59, § 7 as then in effect. In McCracken v. State, 2 Md. App. 716 we stated that it was only when the evidence was sufficient to raise the question in the minds of reasonable men whether the defendant was or was not insane at the time of the commission of the offense and at the time of the trial that the issue is submitted to the jury. We said that it was preferable, therefore, that evidence on the issue be adduced out of the presence of the jury “to avoid any possible prejudice and to obviate the necessity, when the evidence is found to be insufficient, of instructing the jury that the issue is not before them and that they are to disregard such evidence in their deliberations of whether the State has proved the commission of the crime beyond a reasonable doubt.” 2 Md. App. at 720. In the instant case the applicant does not claim that the evidence on the issue was not properly submitted to the jury (expert witnesses appeared on behalf of the applicant and on behalf of the State) and if he would so claim, he could not have been prejudiced as the jury found him sane and the submission to the jury would be more than he was entitled to. See Fowler v. State, 237 Md. 508, 512. And if the issue was properly submitted to the jury, he cannot say that he was prejudiced by its submission. We think it clear that the statute in effect at the time of the applicant’s trial contemplated, when the issue was before it, that the jury deciding the guilt or innocence of a defendant at the same time determined the issue of his sanity both at the time of the commission of the offense and at the time of the trial. Under that statute the jury was not required to state in its verdict that the defendant was so sane, it being conclusively presumed that they found the defendant sane if they did not specifically so state, although the court upon application of the State or the defendant or by its own motion could require the jury to find specially by its verdict whether the defendant was sane at the time of the commission of the offense and whether he was sane at the time of the trial. This allegation is no ground for the reversal of the order denying relief.

Ill

The applicant alleged that as he was under the age of 18 years at the time of the commission of the crime and at the time of his arrest and at the time of his trial he was a “delinquent child” by the definition under Md. Code, Art. 26, § 52. He urges that the provision of the statute excluding him from such definition because the law he violated was punishable by death or life imprisonment, thus automatically waiving the jurisdiction of the juvenile court and requiring his prosecution as an adult, denied him the equal protection of the law. We see no merit to this allegation. The statutes dealing with juvenile delinquents and with adults who contribute to their delinquency have established the public policy of this State relating thereto. See Taylor v. State, 214 Md. 156. The exclusionary provisions as to children who violate a law punishable by death or life imprisonment or the authority of the juvenile court to waive jurisdiction in its discretion in cases involving the violation by children of laws not so punishable (Md. Code, Art. 26, § 54) have not been held unconstitutional (see Bean v. State, 234 Md. 432; Snyder v. State, 189 Md. 167) and all presumptions favor the constitutionality of a duly enacted statute. It will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions. Woodell v. State, 2 Md. App. 433. The statute here challenged applies equally to all those within a specified class and it is not arbitrary or unreasonable. Celanese Corp. of America v. Davis, 186 Md. 463. We see no denial to the applicant of equal protection of the law.

IV

The applicant alleged that the State failed to rebut the presumption that he was incapable of forming criminal intent. At common law while a person under 7 years of age and a person between 7 and 14 years of age are both presumed to be doli incapax, the presumption as to the latter is not conclusive as it is as to the former. The presumption as to a person between 7 and 14 years of age may be rebutted, the maxim being “malitim supplet aelatem,” and the burden of rebutting it is on the State. But a person who has reached the age of 14 years is presumed to be capable of criminal intention and is in the same position with regard to criminal responsibility as an adult. Clark and Marshall, Law of Crimes, (6th Ed.) § 6.12, pp. 391-394. “As customarily expressed there is a presumption of criminal incapacity on the part of an infant below the age of fourteen, which is conclusive prior to the age of seven and rebuttable thereafter.” (emphasis supplied) Perkins, Criminal Law (1957) ch. 8, § 1, p. 731. In the instant case the applicant stated in his amended petition that his age was 14 years and 4 months “at the time of the incident.” Therefore he was over the age of 14 years and the presumption did not arise. The allegation has no merit.

V

The applicant alleged that confessions, introduced in evidence over objection, “extracted from (him) after his arrest during custodial interrogation by the police, were not freely and voluntarily given under the totality of the circumstances in that they were obtained through the use of promise, threat and inducement in that:

1) (He) was held incommunicado for a period of approximately 48 hours after his arrest on May 4, 1956 despite his requests to be allowed to contact members of his family.
2) (He), after his arrest and at the outset of the custodial interrogation, was not advised of his right to the presence of an attorney, of his right to remain silent, that anything he said could be used against him and that, if he could not afford an attorney, one would be appointed him.
3) (He) was induced to confess by the police in that shortly after his arrest he w'as forcibly taken to the scene of the incident (a third floor classroom within Maryland Park School) where the decedent was receiving last rites from a priest and told by a police officer — “you have killed this man now look at him.” In addition (he) was repeatedly told by the police that if he did not confess he would get the gas chamber, that (he) was lying to them in claiming the shooting was an accident and that, if (he) continued to maintain the shooting was an accident, the police could not help him.
4) His age at the time of the confession was 14 years and 4 months.

In a memorandum of law submitted by his counsel in support of the petition it is alleged that although the confession admitted in evidence showed that the question and answer session started at 4:30 P.M. and concluded at 5 :10 P.M., he was “arrested shortly after the shooting about 11:30 A.M. on 4 May 1956, and continually questioned until 4:30 P.M. when he ‘confessed.’ ” The application for leave to appeal avers that the allegations above were “proved in substance” at the hearing.

The hearing court disposed of the allegation that the confession was involuntary by merely saying, “I conclude that not only was the confession voluntary under the test obtained in 1956, when it was given, but also its admission was an issue in the case which was adjudicated at the trial.” We point out that Md. Code, Art. 27, §¡ 645A(b), as amended, provides that “* * * an allegation of error shall be deemed to be finally litigated when the Court of Appeals or Court of Special Appeals has rendered a decision on the merits thereof, either on direct appeal or upon any consideration of an application for leave to appeal filed pursuant to § 645-1 of this subtitle; or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of coram nobis, unless said decision upon the merits of such petition is clearly erroneous.” Thus even assuming that the provisions of Art. 27, § 645A(b) are here applicable, the finding at the trial on the merits that the confession was voluntary does not preclude the applicant from raising the question in his first post conviction petition because it was “finally litigated”; it was not “finally litigated” as no direct appeal was taken on which a decision was rendered on the merits of the question nor does it appear that the applicant sought a writ of habeas corpus or coram nobis.

We do not think that the memorandum of the hearing judge was in accordance with Md. Rule BK 45b providing that the memorandum shall include “specifically the federal and state rights involved and the reasons for the action taken thereon.” It is incumbent upon the judge who conducts the post conviction hearing to make findings of fact upon all contentions raised by the petitioner. Farrell v. Warden, 241 Md. 46; Szukiewicz v. Warden, 1 Md. App. 61. We think that a mere conclusion that the confession was voluntary was not sufficient compliance with the rule. See Tyler v. Warden, 2 Md. App. 127. We feel that the memorandum should clearly have reflected that the hearing judge made factual findings as to each of the contentions relating to the confession and that he considered those findings in the light of the applicable federal and state law in arriving at his conclusion. We remand the case for the hearing judge to make the findings of fact indicated, after receiving such further evidence on the issue as he may deem necessary or desirable, and after making such findings, to determine whether or not the confession was freely and voluntarily made under the applicable law. See for example, Clewis v. Texas, 386 U. S. 707; Davis v. North Carolina, 384 U. S. 737; Green v. State, 236 Md. 334; Keller v. State, 2 Md. App. 623; State v. Hill, 2 Md. App. 594; State v. Hance, 2 Md. App. 162; McFadden v. State, 1 Md. App. 511; Harris v. State, 1 Md. App. 318.

Application for leave to appeal granted; case remanded for further proceedings consistent with this opinion.

      . Chapter 709, Acts of 1967, codified as Art. 59, §§ 7-13, changing the standard for determining sanity with respect to criminal responsibility is applicable to cases tried on and after 1 June 1967. See League v. State, 1 Md. App. 681, 685; Strawderman v. State, 4 Md. App. 689.

      . The post conviction procedure statute, enacted by ch. 44, Acts of 1958, was not in existence at the time of the appellant’s trial or during the time allowed him for direct appeal. We do not find it necessary at this time to consider whether the allegation may be deemed to have been waived under § 645A (c) of Art. 27.


text:
    JOHN GUIDO IOZZI v. STATE OF MARYLAND
    [No. 63,
    September Term, 1968.]

      Decided November 18, 1968.

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

      Norman N. Yankellow for appellant.

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

The appellant was found guilty of extortion by a jury in the Criminal Court of Baltimore and sentenced to imprisonment for a term of 4 years.

On appeal from the judgment the appellant contends:

I. The statute proscribing the offense of which he was convicted is unconstitutional as vague and indefinite.
II. The trial court erred in certain instructions to the jury.
III. The evidence was not sufficient to sustain the conviction.

I

The question of the constitutionality of the statute proscribing the offense of which the appellant was charged and convicted was not presented to the lower court and does not appear by the record to have been tried and decided by it. Therefore we do not decide it. Maryland Rule 1085. But we point out that all presumptions favor the constitutionality of a duly enacted statute and it will not be declared unconstitutional unless it plainly contravenes the federal or State constitutions. Woodell v. State, 2 Md. App. 433, 437.

II

Md. Rule 756g clearly provides that upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instruction given was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time. See Bennett v. State, 230 Md. 562. As the appellant did neither, he may not assign the alleged error as of right and we do not consider it. And we will not take cognizance of the alleged error, as suggested by the appellant; we do not find it to be plain error material to his rights in any event.

III

The appellant urges that “there was insufficient evidence to sustain the conviction * * * at the close of the State’s case and at the close of the entire case.” At the close of the evidence offered by the State, the appellant moved for judgment of acquittal and the motion was denied. He then offered evidence. We point out again that by so doing such motion was withdrawn. Md. Rule, 755b. At the close of all the evidence motion for judgment of acquittal was again made and denied. It is our function in such circumstances to decide whether or not the lower court erred in denying the latter motion. In so deciding we must determine whether the evidence was sufficient in law to justify its submission to the jury; to be insufficient it is necessary to show that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find the defendant guilty beyond a reasonable doubt. Royal v. State; 236 Md. 443, 448; Bever v. State, 4 Md. App. 436; Tillery v. State, 3 Md. App. 142.

The limited nature of common law extortion — the corrupt collection of an unlawful fee by an officer under color of office— and the restricted development of considering extortion in a more general sense, e.g. in the sense of blackmail, as a form of common law robbery left important areas to be covered by statute. Legislation on the subject has been widespread and although not uniform, the statutes tend to follow one of two general patterns. One emphasizes the extortion itself — the actual attainment of money or other thing of value; the other punishes the extorsive threat whether anything was obtained thereby or not. The Maryland statute is in the latter pattern. Art. 27, § 562, Md. Code, supra, proscribing the offense of which the appellant was convicted, provides, in pertinent part:

“Every person who shall verbally threaten * * * to do any injury to the person or property of anyone, with a view to extort or to gain any money, goods or chattels, or any other valuable thing shall be guilty of a felony * *

It is clear that it is not required that money or other valuable thing be obtained. The essential element of the crime is the threat. If (1) the manner of threat is verbal; (2) the subject of the threat is to do any injury to the person or property of anyone; and (3) the making of the threat is with a view to extort or gain anything of value, the crime has been committed. Mo precise words are necessary to constitute such a threat. It may be innuendo or suggestion, and the circumstances under which it is uttered and the relations between the parties may be taken into consideration. 3 Wharton’s Criminal Lazv and Procedure (Anderson) § 1398, p. 796. See 86 C.J.S., Threats and Unlazvful Communications, §§ 2-3, pp. 787-807.

Anthony Perrotti, 54 years of age, testified that he operated a restaurant at 426 S. Macon Street in Baltimore City and lived in the premises “above my business” with his wife and mother-in-law. The entire first floor of the building was used for the restaurant, and contained three separate dining rooms and a kitchen. He had known the appellant by the name of Johnny or Chitta “seven, eight years, ever since he came into the neighborhood.” On three nights previous to 20 March 1967 the appellant had eaten in the restaurant. He “had like a belligerent air. He came in like he was antagonistic, but he ate and paid his check and left. I didn’t like his attitude. He had gone to each table and stared at the people and caused them embarrassment.” On 20 March he came in about 10:00 or 10:30 P.M. He didn’t eat. He pointed at Perrotti and said, “I want to talk to you.” Perrotti’s testimony continued:

“I said, ‘Yes, Johnny, what caxr I do for you?’ He said, T want to talk to you.’ I took hiixx to the third room and so we sat down. He says, ‘We have atx ' ox'ganizatioxi. We need funds.’ I said, ‘Well, Johnny, I’xn broke.’ He said, ‘What do you xnean, you’re broke?’ He says, ‘You know what happened at the Click Poolroom.’ I says, ‘Johnny, if you harxn oxxe window in this place, I’ll kill you.’ * * * He opened his coat. As I said, it was a little dim in the room; you couldn’t see real good. It seemed to me like he had a gun. It appeared like a gun. * * *(I saw) soxnething protruding from his belt because when he opened the smoking jacket I could see it. He carried a cane with him and he had dark glasses on him axid it just —I’ll tell you, it does frighten you a little bit to have —* * * Looked like a weapon. * * * I raised out of the chair and I told him that he was even afraid to shoot me with the weapon. * * * And he said, ‘I’m not here to shoot you,’ and he raised up arxd I said, ‘Johnny, get out of here, leave my restaurant, never come in again. Get out of here.’ He said, ‘I’ll see you again.’ I said, ‘No, you won’t.’ I kept talking to him as he was leaving. * * * At the door he said that he’d be back. I said, ‘Johnny, you won’t be back.’ ”

The Click Poolroom mentioned by the appellant was about two blocks from the restaurant. Perrotti said he knew what the appellaxit was referring to when he mentioned the Click Poolroom. “On 13th of March the Click was bombed * * * by a fire bomb from the rear.” The next day Perrotti was in a barbershop across the street from the'poolroom. The appellant came in. The transcript of the examination in chief of Perrotti continues as follows:

“A. This Johnny Iozzi came into this place there while I was getting my hair cut and was rather, as they say,—
Q. Just tell us what happened, sir.
A. He said, that Jew across the street wouldn’t operate.
Q. Wouldn’t operate.
A. Right. They didn’t want him in the neighborhood.
Q. Who was he referring to, sir ?
A. Jake, the owner of the Click Pool Room.
Q. What is Jake’s full name, do you know ?
A. I don’t know his last name. We call him Jake.
Q. What, if anything else, did Mr. Iozzi say?
A. When I got done with my hair cut, he looked right at me and he said, ‘Tony Illona, do you think that man should operate his pool room?’ I started giving — well, I said, ‘Everybody has to live.’ And he says, ‘Well, he hasn’t heard the end of this.’ ”

Perrotti saw the damage to the poolroom on 14th March. “It was from * * * the rear of the poolroom * * * the ceiling, the sides of the walls * * * and the toilet.” He went there again on the 17th March. “They weren’t open for business * * * the sidewalk was full of debris and in shambles * * * from the fire in the front of the building * * * It was charred debris all over the place.” At the trial police records were produced in connection with damage to the Click Poolroom on two occasions, one on 13 March and the other on 15 March, each occurring around 3 :30 A.M. The report relating to 13 March showed that the damage was by fire. “Someone had thrown a fire bomb into the rear of the place causing fire * * * there was an attempt to burn the place out * * * by means of broken milk bottle, pieces of burnt rags, and liquid substance.” The report of 15 March showed the offense at the poolroom as arson. “The first floor was burned out and they found a gallon can marked Lasting Paint Thinner Products, which had been thrown through the front window.”

In the light of the evidence herein summarized, we have no difficulty in determining that the evidence was sufficient in law to justify its submission to the jury. It cannot be shown that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find the appellant guilty beyond a reasonable doubt as there was relevant evidence which could properly sustain the conviction. It is for the jury to weigh the evidence and judge the credibility of the witnesses. Wilkins v. State, 5 Md. App. 8; Graef v. State, 1 Md. App. 161. In so doing the jury could believe Perrotti’s testimony, and if they did so believe him, his testimony was sufficient for them to find, beyond a reasonable doubt, that the appellant threatened Perrotti, that the threat was verbal, that the threat was to do injury to his person or property, and that it was made with a view to extort money. If they so found, the appellant would be guilty of the offense charged. Since there was such relevant evidence sufficient to support a conviction, the lower court did not err in denying the motion for judgment of acquittal. In the absence of such error we may not overturn the judgment for insufficiency of the evidence.

Jtidgment affirmed: costs to be paid by the appellant.

      . The offense proscribed by Md. Code, (1967 Repl. Vol.), Art. 27, § 562.

      . See Constitution of Maryland, Art. XV, § 5, as amended, and as implemented by Md. Code, (1967 Repl. Vol.), Art. 27, § 593 and Md. Rules, 755; Jason v. State, 1 Md. App. 136.

      . Generally, the term “blackmail” is equivalent to and synonymous with “extortion”. 31 Am.Jur.2d, 905.

      . Perkins, Criminal Law (1957) ch. 4, § 10A and 10B, pp. 319-327.