text:
    WILLIAM DANIEL CHAVIS, JR. v. STATE OF MARYLAND
    [No. 251,
    Initial Term, 1967.]

      Decided February 16, 1968.

    The cause was submitted to Anderson, Morton, Orth, and Thompson, JJ., and Digges, J., Chief Judge of the Seventh Judicial Circuit, specially assigned.

      Stanley S. Cohen for appellant.

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

The Appellant, William Daniel Chavis, Jr., was convicted by Judge J. Gilbert Prendergast, sitting in the Criminal Court of Baltimore, without a jury, of storehouse breaking, possession of a starter pistol, and carrying a deadly weapon. He was sentenced to three years for the storehouse breaking, one year for possession of a starter pistol to be served consecutively, and he was given a suspended one year sentence for carrying a deadly weapon.

In this appeal, he contends that there was no legally sufficient evidence to sustain his conviction of storehouse breaking.

The record indicates that the owner of a tavern in Baltimore City closed the establishment at 1:00 A.M. on July 24, 1966, which contained merchandise valued at approximately $5000; and when he returned at 4:00 A.M. as a result of having been called by the police, he found the rear door of the tavern had been forced open and an inner door leading into the bar had been damaged.

A police officer testified that he went to the rear of the tavern a few minutes before 4:00 A.M., in response to a call to investigate a breaking and entering of the tavern, and there he encountered the Appellant approximately six feet from the rear door. He also observed several heavy metallic objects, variously described as crow bars or pinch bars, both inside and outside of the door. He was joined by a fellow officer almost immediately who entered the rear door and found the co-defendant of the Appellant “going up the stairs.” Another officer searched the Appellant and found a blackjack and a starter pistol.

The Appellant took the stand and testified that he had taken a cab from a party he had attended earlier in the evening; that he got out of the cab about seven blocks from his home to enable the cab driver to answer another call; that he walked to the rear of the tavern to relieve himself; and that he was about to depart for his home when apprehended by the officer. He denied knowing the co-defendant and the co-defendant denied knowing the Appellant. The co-defendant testified that the Appellant did not participate in the crime. He acknowledged seeing the Appellant at the rear of the premises and admitted calling him “Danny” at the police station but asserted he learned the Appellant’s name from the police. The Appellant admitted that he had been previously convicted of burglary, malicious destruction of property, unauthorized use of motor vehicles and assault and battery on four occasions.

It is argued on behalf of the Appellant that his presence at the scene of the crime is the only evidence to connect him with its commission and that this is legally insufficient to sustain his conviction.

It is true that mere presence at the scene of the crime is, ordinarily, not considered legally sufficient evidence to establish the commission of the crime. However, it has been consistently held that the presence of the accused at the scene of the crime is a compelling element in determining the guilt or innocence of the person charged with the crime. Johnson v. State, 227 Md. 159, 163; Pettis v. State, 2 Md. App. 651, 653; and the trier of facts must take into consideration all the attendant circumstances surrounding the presence of the accused at the scene in making the determination of guilt or innocence.

The trial judge, in view of the acknowledged criminal background of both the Appellant and the co-defendant, was not compelled to believe their stories. Chittum v. State, 1 Md. App. 205, 209; Logan v. State, 1 Md. App. 213, 216. As was said by the Court of Appeals of Maryland in Berry v. State, 202 Md. 62, 67, the trial judge, “is not commanded to be naive and to believe without scrutiny every glib suggestion or far-fetched fairy tale whether emanating from State or defense. An indispensable ingredient in judgment, in Court as well as out of it, is a modicum of common sense.” The trial judge expressly found that “the two large pinch bars and another bar were heavy and cumbersome, not the sort of equipment that one man normally carries * * *;” and he concluded that the Appellant and the co-defendant were “very well acquainted and they operate together.” The trial judge had the benefit of seeing, hearing and observing the demeanor of the witnesses, a benefit which is not afforded us by the record. Under Maryland Rule 1086, we are proscribed from setting aside the trial judge’s verdict on the ground of legally insufficient evidence unless we are convinced that his verdict was clearly erroneous. We are not so convinced on the record in this case.

Judgment affirmed.

      . In violation of Md. Code, Art. 38A, Sec. 16.

      . A Blackjack.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RICHARD AVON BRISCOE AND TYRONE JOHN STOKLEY v. WARDEN, MARYLAND PENITENTIARY
    [No. 10,
    September Term, 1967.]

      Decided February 16, 1968.

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

Applicants for leave to appeal were indicted on January. 13, 1956, on a charge of murder arising out of a Christmas Eve slaying of a Baltimore grocer. They went to trial on March 12, 1956, before Judges Cullen and Mundy, without a jury, after pleading “not guilty.” On March 13 they were found guilty of murder in the first degree and were sentenced to life imprisonment. No motion for a new trial was made nor was an order for appeal filed.

On January 18, 1966, a petition for relief under the Uniform Post Conviction Procedure Act was filed as to Richard Briscoe. On March 7, 1966, a petition was filed by Tyrone Stokley. A joint evidentiary hearing was held on the petitions by Judge Joseph E. Carter on April 28, 1966, and August 3, 1966. He denied the petitions in orders filed on December 28, 1966. Application for leave to appeal the dismissals was thereafter timely filed with this court.

Petitioner Briscoe advances the following contentions:

1. Denial of effective assistance of counsel during a waiver of jurisdiction by the Juvenile Court.
2. The police coerced a statement from him.
3. His counsel was incompetent.

In regard to the first contention, the lower court correctly found that the juvenile court does not have jurisdiction of a capital offense; thus a waiver hearing was unnecessary. Bean v. State, 234 Md. 432.

Briscoe’s second contention is that the police coerced a confession from him. The lower court held that this contention could not be raised under the Uniform Post Conviction Procedure Act, citing Cheeseboro v. Warden, 224 Md. 660. We disagree. Since the decision in Mapp v. Ohio, 367 U. S. 643 (1961), many matters formerly treated as procedural have now been elevated to the status of constitutional rights, and this is now the case with a contention of an involuntary confession. Ledbetter v. Warden, 234 Md. 643. Since Briscoe alleges the existence of certain facts which, if believed by the trier of fact, might establish that his statement was involuntary, we deem it necessary to remand as to this issue for a determination by the court with respect to the voluntariness of Briscoe’s statement. See Hargis v. Warden, 3 Md. App. 76.

The third contention, that his counsel was incompetent, was answered by the lower court under the standard of “farce” set forth in Bryant v. Warden, 235 Md. 658. This “standard” is no longer in effect in Maryland, having been changed by the case of Slater v. Warden, 241 Md. 668, to a determination of whether “under all the circumstances of the particular case has the petitioner been afforded a genuine and effective representation.” See Nash v. Warden, 243 Md. 700; Pressley v. Warden, 242 Md. 405; Cherrix v. Warden, 1 Md. App. 65; Norris v. Warden, 1 Md. App. 69. However, even under the new standard we do not believe that counsel was incompetent. The lower court found that counsel was competent, that any alleged errors were merely a matter of trial tactics. Error in trial tactics will not afford relief. Tucker v. Warden, 243 Md. 331; McCoy v. Warden, 1 Md. App. 108. The defense here was made exceptionally difficult by the number of witnesses placing the defendants at the scene of the crime and the confessions that were made and the competency of counsel must necessarily be viewed in the light of these circumstances.

Petitioner Stokley raises the following allegations in his petition :

1. The judgment, conviction and sentence were obtained by the State on fraud.
2. Evidence had been illegally seized.
3. No preliminary examination before a magistrate.
4. Perjured testimony by the State’s witnesses.
5. The technique of identification at arrest and trial was unconstitutional.
6. Denial of counsel at the time of arrest and denial of a phone call.
7. His confession was forced by police.
8. His attorney was incompetent.
9. He was held incommunicado.
10. He was underaged (17 years old) and could not be tried in a criminal court.

The first and fourth contentions are merely bald allegations without any attempt to support them by facts. Thus, they will not be a basis for relief. Austin v. Director, 237 Md. 314.

The second contention could likewise be dismissed, and since all three were not raised at the hearing, they can be considered abandoned. Szukiewicz v. Warden, 1 Md. App. 61.

The third contention will afford petitioner no relief as there is no requirement that a preliminary hearing be had. It is not a necessary proceeding in obtaining a valid conviction. Ferrell v. Warden, 241 Md. App. 432.

The remaining contentions are denied for the reasons stated by the lower court in its memorandum, with the exception of the seventh and the eighth.

In regard to the eighth contention, as we have noted before, the standard for competency of counsel has changed from the old guideline of “farce.” But even under the guideline set forth in Slater v. Warden, supra, we cannot say that counsel here was incompetent. The lower court found that petitioner was adequately represented, and we cannot say that this was clearly in error even under the new standard. The same situation was involved as was discussed in connection with applicant Briscoe.

As to the seventh contention—that his confession was coerced—the lower court in denying the contention relied on a dialogue from the trial as follows:

“Direct Examination of Lt. Klemmick—
Q. Now did you or any one in your presence use any force or violence upon the defendant Stokley in order to get him to make a statement ?
A. We did not.
Q. Did any, were any promises made to the defendant Stokley in order to get him to make a statement ?
A. No.
Q. Were any threats made to the defendant Stokley in order to get him to make a statement ?
A. No sir, there were not.
Q. Were any inducements held out to the defendant Stokley in order to get him to make a statement ?
A. No, sir.”

The court then said:

“Furthermore, the petitioner took the stand at his trial and was cross-examined about his statement, but at no time made any allegation of force used by the police to obtain his statement.”

In the transcript of the hearing, no evidence was adduced by Stokley that his confession was involuntary. The contention that it was involuntary must therefore be denied.

Application granted as to the petition of Briscoe (No. 1060) and case remanded for further proceedings in accordance with this opinion; application denied as to petition of Stokley (No. 1090).

      . “I told him, said I don’t know what you all talking about, I want to see my parents. So he took and got a little warm and he said, Well, we got all the facts against you, say we trying to help you; you don’t give a statement, he said you are going to get the gas chamber.”
      “Mr. Briscoe: They didn’t actually strike me with their hands, you know. They pushed me around with the hands, I’ll say, and things.”
      “Mr. Briscoe: Told me, say make the statement and you help yourself. I asked could I see my mother. They told me I make a statement and they would let me see my mother, that they were trying to help me, wanted to help because they got evidence that I W'as the guilty one and they wanted to help me, so I make the statement and they would let me see my mother, which they didn’t never let me do.”


text:
    JAMES H. McCALL v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 69,
    September Term, 1967.]

      Decided February 16, 1968.

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

This is an application for leave to appeal from an order filed on May 4, 1967, by Judge James A. Perrott, sitting in the Criminal Court of Baltimore, denying relief sought in a second petition under the Uniform Post Conviction Procedure Act.

The application for leave to appeal was filed on June 21, 1967, or more than thirty days from the passage of the order sought to be appealed. Applicant has thus failed to comply with Maryland Rule BK 46 (a) which requires that the application “be filed within thirty days from the passage of the order appealed from.” The application for leave to appeal is therefore not timely filed. See Bowyer v. Warden, 237 Md. 644; Bynum v. Warden, 230 Md. 631.

Since the record in the present case raises the question of whether the applicant was sufficiently advised of the lower court’s decision in time to file a timely application for leave to appeal, we have reviewed applicant’s contentions which have been presented against the following factual background: The applicant was charged under three separate indictments in the Criminal Court of Baltimore, two of which charged robbery with a deadly weapon (indictments 1966 and 1967) and one of which charged assault (indictment 1968). The applicant pleaded guilty to the two robbery charges and not guilty to the assault charge. He was convicted on all three charges and received two concurrent fifteen-year sentences on the robbery indictments and a three-year sentence on the assault indictment, to run consecutively with the other sentences. Applicant did not appeal from any of these convictions. On October 11, 1965, he filed his first petition under the Uniform Post Conviction Procedure Act, raising five contentions as follows:

1. That he was denied due process of law.
2. That he was illegally arrested and searched.
3. That his three-year sentence for assault was “illegal.”
4. That his court-appointed trial counsel was incompetent,
5. That his indictments were void because they were returned by an illegally constituted Grand Jury.

After appointment of counsel, two evidentiary hearings were held and on December 1, 1965, the petition was denied by Judge Dulany Foster in the Criminal Court of Baltimore. No application for leave to appeal was filed from that judgment.

Applicant filed his second petition under the Act on June 16, 1966, and raised the following contentions:

' 1. Perjury was used to establish a conviction of assault in Indictment No. 1968.
2. That the taking of a guilty plea at arraignment by Judge Allen, who changed the plea to not guilty but subsequently tried the case, was prejudicial to petitioner and was the influencing factor in inducing petitioner to plead guilty again, knowing that he had once pled guilty before the same Judge for the same offense.
3. That the sentences and convictions in regard to the two robbery indictments were inconsistent with Judge Allen’s judgment.
4. That he has been placed twice in jeopardy for the same crime in relation to the two robbery indictments.
5. That both Indictment 1966 and 1967 are illegal and do not correspond with the judgment and conviction of Judge Allen.

After appointment of counsel, a hearing was held on October 4, 1966. By opinion dated May 3, 1967, the petition was denied by Judge James A. Perrott, the court ruling, as to applicant’s first contention, that it was not supported by evidence, nor was there any showing that the State at the time of trial knowingly used perjured testimony. As to applicant’s second contention, the court held that the applicant had failed to sustain his burden of proof that the trial judge was prejudiced and, additionally, by not objecting at the time of trial to the alleged prejudice, had waived the right to assert the same in futuro. Judge Perrott disposed of the remainder of the applicant’s contentions by stating that such questions had been previously litigated in a habeas corpus proceeding and could not be raised again in a post conviction proceeding.

We think the applicant’s first two contentions were properly disposed of by the court below. The record does not, however, reflect the basis for the court’s disposition of applicant’s third, fourth and fifth contentions, since nothing therein indicates that applicant had filed a habeas corpus petition in which these same contentions were advanced and adjudicated; and it does not appear that they were “finally litigated” in the first proceeding under the Uniform Post Conviction Procedure Act. It appears to us, however, that they are obviously lacking in merit. The core of these contentions is that he was convicted for three offenses when he only perpetrated one crime. It is plain, however, that applicant was charged with robbing one Kramer, a cashier of the A & P Tea Co. of $54.00; of robbing another A & P cashier, one Flegle, of $115.00 at the same time, and of assaulting one Ferner after completion of the armed robberies. That these are separate and distinct crimes is abundantly clear and no problem of merger of offenses or double jeopardy is involved. Moreover, with respect to these contentions, applicant’s failure to assert them on appeal or in his first petition under the Act gives rise to a rebuttable presumption that these allegations of error have been waived. See Maryland Code (1967 Repl. Vol.), Article 27, § 645A (c), and Jones v. Warden, 2 Md. App. 343. Applicant has made no showing of any “special circumstances” to overcome the presumption of waiver.

Applicant also contends that the failure of Judge Perrott to render his decision on the merits of his petition within sixty days after it was submitted to him violated his constitutional rights and resulted in a loss of the court’s jurisdiction over the case. The same contention was made and rejected in Pressley v. Warden, 242 Md. 405, 406.

Application denied.


author: Orth, J.,

text:
    DARL WILLIAM CADDIE v. WARDEN, MARYLAND CORRECTIONAL INSTITUTION

      [No. 90,

    September Term, 1967.]

      Decided February 16, 1968.

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

delivered the opinion of the Court.

This is an application for leave to appeal from an order of the Circuit Court for Washington County denying relief sought under the Uniform Post Conviction Procedure Act.

The applicant and a codeiendant were found guilty of grand larceny by a jury in the Circuit Court for Washington County. The applicant was sentenced to an imprisonment for an indeterminate period not to exceed 4 years accounting from February 16, 1967, and the codefendant for a term of 4 years accounting from April 8, 1967.

In his petition, one of the applicant’s allegations is that his attorney, whom he privately retained to represent him at his trial, was appointed by the court to represent the codefendant also and that as there was a conflict of interest between him and the codefendant, he did not receive a fair trial. Upon a hearing on the petition, the lower court found that the attorney retained by the appellant was appointed by the trial court to represent the codefendant with instructions to the attorney that if he felt there was a conflict of interest to so inform the court. After talking to each of his clients, the attorney decided there was no conflict. After “the testimony was in” at the trial, however, the attorney, as he testified at the post conviction hearing, “felt obliged to and did argue to the jury, that there was more evidence against the applicant than there was against the codefendant.”

The hearing court, after reviewing the evidence produced at the trial, found that there was “a lamentable and deplorable conflict of interest,” and that the applicant “had a right to be disturbed when his attorney told the jury that there was more evidence against him than there was against” the codefendant. It is stated in the memorandum accompanying the order:

“The concept of conflict of interest is based on the theory that no man can serve two masters, and certainly the attorney found himself in a most unenviable position when it came to argue the case to the jury. The conflict of interest here was sharp and clear”.

After so finding, the hearing court concluded that although the applicant “was in a way used to help (the codefendant), a matter of which he was rightfully disturbed, nevertheless his predicament did not help (the codefendant), and the jury found sufficient evidence, not only to convict the (applicant) but also (the codefendant). If the case had been that (.the codefendant) had been acquitted and (the applicant) convicted, it would have been a clear case of injury by reason of conflict of interest.” So concluding, the hearing court held that since “there was sufficient evidence to convict even the less involved of the two,” the applicant “failed to show any injury by his attorney’s conflict of interest.”

In support of the holding, the heáring court cited McCoy v. Warden, 234 Md. 616 and Boggs v. Warden, 232 Md. 656. In McCoy there was no conflict of interest shown, the Court stating that “the mere appointment of the same counsel to defend codefendants, does not, in itself, establish any conflict of interest.” It added, “Furthermore, the applicant alleges no facts to show that he was prejudiced in any way, and his claim of conflict of interest amounts to no more than another bald allegation.” 234 Md. 618. In Boggs the Court said that “the unsupported statement that his interest had been subordinated to that of his codefendant was not enough to state a ground of relief.” 232 Md. 657. These cases are readily distinguishable from the instant case. Here the hearing court found a “sharp and clear” conflict of interest and we cannot agree that .there was no prejudice to the applicant for. the reasons ,advanced by the court. We recognize that what constitutes sufficient .prejudice is uncertain, but we note the admonition of the Supreme Court in Glasser v. United States, 315 U. S. 60, 76, that “[t]he right to. have assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” We think it obvious that if the trial court had knowledge prior to trial of the conflict of interest as became apparent during trial, the applicant and the codefendant would have proceeded to trial with separate counsel. We cannot find that the applicant was afforded effective assistance of counsel under the circumstances here present, and must grant the applicant a new trial.

In view of our finding it is not necessary to determine the merits of the other allegations of the applicant.

Application granted; case remanded for a new trial.


author: Morton, J.,

text:
    CHARLES JAMES REEVES v. STATE OF MARYLAND
    [No. 24,
    September Term, 1967.)

      Decided February 19, 1968.

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

      Morton P. Fisher, Jr., for appellant.

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

delivered the opinion of the Court.

The Appellant, Charles James Reeves, was convicted of rape, without capital punishment, by a jury in the Criminal Court of Baltimore on April 27, 1966. This was Reeves’ second trial and conviction, his first conviction having been vitiated as a result of Habeas Corpus proceedings in the United States Fourth Circuit Court of Appeals. (See Reeves v. Warden, 346 F. 2d 915). In his first trial, Reeves had been convicted of rape and sentenced to life imprisonment. In his second trial, the presiding judge sentenced him on June 10, 1966, to twenty years imprisonment (the maximum allowed by the statute under the jury’s verdict) but no credit was allowed for the prison time served by Reeves under the first sentence, namely, from April 8, 1960 to the date of his second sentencing.

The record indicates that on July 24, 1959, shortly after midnight, the Baltimore Police received a complaint from the prosecuting witness that she had been raped by a Negro male in her apartment located on Charles Street in the City of Baltimore. She told the police, and testified at the trial, that her attacker held a broken Vodka bottle to her throat, forced her to bed and attacked her. She escaped some forty-five minutes later, and as she ran down the stairs, the Vodka bottle was thrown at her, breaking on the stairs. The police arrived at the scene within minutes and, after questioning, sent her to be examined by a doctor.

The next morning she was shown a number of photographs by the police and identified Reeves as the man who had attacked her. Reeves was then arrested at his sister’s home, without a warrant, placed in a lineup and again identified by the victim.

1.

In this appeal, it is first contended by Reeves that his rights were violated by the admission of testimony of the victim and the police relating to identifications made at the lineup and at •a subsequent confrontation with the victim during which Reeves was required to speak, it appearing that she had purposely engaged her attacker in conversation so that later she could identify him. It is contended that the failure of the police to advise the Appellant of his right to counsel and his right to remain silent made the pretrial identifications illegal; that subsequent identifications at trial were tainted; and that all testimony relating thereto was inadmissible.

In support of this contention, reliance is placed upon the holdings in Wade v. United States, 358 F. 2d 557 (5th Cir. 1966) and People v. Gilbert, 408 P. 2d 365 (Calif. 1965), the decisions of the Supreme Court of the United States in United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, not having been announced at the time Appellant’s Brief was filed. Appellant’s reliance on Wade and Gilbert is, however, misplaced.

It is true that the Supreme Court in Wade and Gilbert held that “a post indictment pre-trial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question tlie admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.” Gilbert, supra, p. 272. However, in Stovall v. Denno, 388 U. S. 293, the Court specifically held “that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date [June 12, 1967]”. Thus, the new standards governing the conduct by the police of an identification lineup are not available to Reeves. Tender v. State, 2 Md. App. 692. In this State, at the time of Reeves’ lineup, evidence of an extra-judicial lineup was admissible if conducted under conditions of fairness and reliability; and the absence of counsel at such lineup did not, per se, create a condition of unfairness or unreliability. Johnson v. State, 237 Md. 283, 289; Proctor v. State, 223 Md. 394. Nadolski v. State, 1 Md. App. 304; Crumb v. State, 1 Md. App. 98. There has been no showing by the Appellant that his lineup identification was otherwise conducted under conditions of unfairness or unreliability.

The Appellant’s assertion that his Fifth Amendment rights were violated when he was required to utter certain words as a part of the lineup procedure and the confrontation is without merit. In Wade, supra, the Supreme Court said:

“* * * compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature; he 'was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, at 761, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused’s ‘communications’ in whatever form, vocal or physical, and ‘compulsion which makes a suspect or accused the source of ‘ “real or physical evidence,” ’ Schmerber, supra, at 764. We recognized that ‘both federal and state courts have usually held that * * * [the privilege] offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ Id., at 764. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pre-trial lineup.”

2.

The Appellant next contends that certain statements made by him to the police officers regarding his whereabouts at the time of the commission of the crime and introduced in rebuttal were, per se, involuntary because the statements were obtained without advising him of his right to counsel and were elicited as fruits of an illegal arrest. He cites the holdings in Escobedo v. Illinois, 378 U. S. 478 and Miranda v. Arizona, 384 U. S. 436, in support of his contention that the statements were involuntary, per se. Escobedo, however, has no application since there is no showing that Reeves requested and was denied counsel prior to making the statements; nor is Reeves within the reach of Miranda since his trial was begun prior to June 13, 1966, its effective date. Carrington v. State, 1 Md. App. 353, 357. There is no showing that the statements were otherwise involuntary and, accordingly, there was no error in their admission.

Likewise, the statements were not rendered inadmissible even assuming the arrest was illegal, since they were not the fruits of an unreasonable search. Nadolski v. State, 1 Md. App. 304; Howard v. State, 1 Md. App. 379; Fisher v. State, 1 Md. App. 505. The Appellant’s reliance on Wong Sun v. United States, 371 U. S. 471 is misplaced since that case “does not control prosecutions in State courts * * Crowe and Williston v. State, 240 Md. 144.

3.

The Appellant also contends that the trial judge committed prejudicial error in advising the jury during the course of his instructions that it had “a certain prerogative not normally enjoyed by a criminal jury,” indicating that in the event of a guilty verdict it could prevent the imposition of the death sentence by accompanying its verdict with the words “without capital punishment.” He argues “that thinking it had control over punishment, the jury was more likely to bring in the compromise verdict of guilty, without capital punishment, and that the defendant’s chances for acquittal were gravely prejudiced.” We find this contention to be without merit. The trial judge included in his instructions a clear admonition that “the imposition of sentence is purely within the province of the trial judge.” In Shoemaker v. State, 228 Md. 462, cited by the Appellant, references by the State’s Attorney in closing argument were condemned by the Court of Appeals since “the jurors ‘were likely to have been * * * influenced to the prejudice of the accused.’ ” The facts and rationale of that case, in our opinion, are inapposite here.

Also we find no merit in the contention that the trial court’s instruction that “the jury is judge of the law [as well as of the facts] was in violation of the defendant’s rights under the United States Constitution.” The Court of Appeals of Maryland and this Court have ruled many times that this contention is without merit. See Giles v. Maryland, 229 Md. 370, appeal dism. 372 U. S. 767; Avey v. State, 1 Md. App. 178, 187; Lewis v. State, 2 Md. App. 678.

4.

The Appellant next complains that the trial judge committed prejudicial error in refusing to permit testimony offered by the Appellant which would have shown that clothes taken from the person of the Appellant and from his home were tested for semen stains and subjected to spectograpic analysis against paint and dirt scrapings taken from the fire escape leading to the prosecuting witness’ apartment with negative results. However,, there was no positive evidence offered by the State or by the Appellant that the clothes subjected to the test were clothes worn by the Appellant on the evening of the crime. Since negative evidence is admissible only to contradict positive evidence on the other side, the trial judge properly excluded the proffered testimony relating to the negative results of the test. Underhill, Criminal Evidence, Vol. 1, Sec. 9 (5th Ed.).

'5.

The Appellant filed a Motion for a Mistrial after a State’s-witness had made reference to “the other trial” and contends that its denial by the trial judge constituted reversible error. We do not agree. The trial judge immediately directed the jurors to “disregard that remark.” In Cook v. State, 225 Md. 603, the Court of Appeals of Maryland stated: “This Court has ’ stated that the trial court is in an advantageous position to judge the' question of prejudice and its decision with reference thereto should not be reversed unless it is clear that there was prejudice.” See also Avey v. State, 1 Md. App. 178, 188. We-are not persuaded that the remark constituted clear prejudice and, accordingly, the refusal to grant a mistrial was not reversible error.

6.

Finally, it is contended that the imposition of the maximum sentence authorized by the statute (Md. Code, 1967 Repl. Vol., Art. 27, Sec. 463), without allowing credit for the period of years the Appellant has served under the first sentence, is violative of his Constitutional rights and the mandate of the Legislature. This contention has substantial merit.

The Court of Appeals of Maryland has consistently held that the imposition of a sentence at the second trial which results in a greater period of confinement than called for in the sentence-imposed at the first trial is not unlawful. Hobbs v. State, 231 Md. 533; Moulden v. State, 217 Md. 351. More recently, this Court in Moon v. State, 1 Md. App. 569, followed the views expressed in Hobbs, supra, and approved a sentence of twenty-years for armed robbery which was imposed in a second trial where the first trial, which had resulted in a sentence of twelve years, had been set aside under Schowgurow v. State, 240 Md. 121. We recognized in Moon that the United States First Circuit Court of Appeals in Marano v. United States, 374 F. 2d 583 and the Fourth Circuit Court of Appeals in Patton v. North Carolina, 381 F. 2d 636, had held that a harsher sentence upon retrial was unconstitutional; although the Third Circuit in Starner v. Russell, 378 F. 2d 808, held to the contrary. We decided, however, to “continue to follow the rule as laid down in the Maryland cases, especially where, as here, the indictment has been declared void, as opposed to a new trial under the same indictment after reversal.”

In Moon, as here, the twenty year sentence imposed on retrial was the maximum allowed under the statute (Md. Code, 1967 Repl. Vol., Art. 27, Sec. 488). Credit, however, was given Moon for all the time he had served in jail following his arrest. Thus, the case at bar reaches us in a different factual posture than Moon, for, by giving no credit for the time Reeves had spent in jail under the first sentence, the lower court, by imposing the maximum sentence in the second case, in effect, sentenced him to serve twenty six years in the face of a statute which limits the sentence to twenty years.

It is true that the Court of Appeals and this Court have reasoned that the granting of a new trial, whether because of a defective indictment or because of error in the first trial results in a de novo proceeding, and the lower court, on retrial, “hears the case as if it were being tried for the first time, and considers the entire matters of verdict, judgment and sentence as if there had been no prior trial.” Hobbs, supra. But this theory or fiction does not obliterate the hard fact, present in this case, that if the sentence here imposed is allowed to stand, Reeves could be forced to serve twenty six years in prison for the commission of a crime which carries with it a maximum sentence of twenty years. It is no answer, in our opinion, to assert that corrective action may be taken by the State Department of Parole and Probation; or that he is fortunate, in any event, since he will not be compelled to serve the life sentence originally imposed. While it is true that this Court has in Moon, approved, in a sense, the philosophy expressed by the Court of Appeals in Hobbs, that “in asking for and receiving a new trial, Appellant must accept the hazards as well as the benefits resulting therefrom.” But such a philosophy does not countenance derogation of an accused’s rights under the Maryland Constitution or sanction non-compliance with a Legislative mandate. We think that the failure to give Reeves credit for the time served under his first sentence would be violative of Art. 25 of the Maryland Declaration of Rights, and contrary to Md. Code, 1967 Repl. Vol., Art. 27, Sec. 463.

In all the Maryland cases dealing with the imposition of harsher second sentences, whether by the trial courts in appeals from courts of limited jurisdiction or on retrial, there is a consistent thread of expressions that “the Court could have modified it or changed it, or enlarged it within the limits provided by the statute.” Hite v. State, 198 Md. 602; Moulden, supra. Likewise, it has been consistently held that the imposition of a sentence “within the statutory limit does not amount to a cruel and unusual punishment.” Fisher v. State, 1 Md. App. 505; Charles v. State, 1 Md. App. 222. Thus, the limiting factor is clear—a sentence must be imposed within the statutory limit and to say that because, as here, the second sentence, per se, did not exceed the maximum, is to take a myopic view of its results, which we cannot accept if fundamental fairness is to prevail. We hold, therefore, that Reeves is entitled to credit on his second sentence for the time he has served since the imposition of his original sentence. Accordingly, the case will be remanded for the purpose of amending the sentence in accordance with the views here expressed.

Case remanded for amendment of sentence in accordance with this opinion; judgment otherwise affirmed.

      . This conviction was affirmed on appeal. Reeves v. State, 224 Md. 436, Cert. Den., 368 U. S. 865. Post Conviction relief was denied on November 5, 1962, and Application for Leave to Appeal was denied on March 13, 1963. Reeves v. Warden, 231 Md. 613. His Petition for a Writ of Habeas Corpus was denied by Judge Thomsen on March 5, 1964, 226 F. Supp. 593. This decision was reversed on appeal to the U. S. Fourth Circuit Court of Appeals on the ground that a note found in Reeves’ bureau drawer partially describing his- whereabouts on the day of the crime was improperly admitted. 346 F. 2d 915.

      . Cert. Den. 390 U. S. 905, 19 E. Ed. 2d 871 (1968).

      . Cert. Den. 389 U. S. 889.

      . Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale E- J. 606 (1965):
      “Harsher sentences following reconviction of successful Appellants are permissible throughout the federal courts and in the vast majority of the states.”

      . This conclusion is to be distinguished from our holding in Williams v. State, 2 Md. App. 170, where, in the circumstances of that case, we held that the sentencing judge was not required to give credit for time spent in jail pending a trial and prior to sentencing.


text:
    ALFRED G. DAVIS v. DIRECTOR, PATUXENT INSTITUTION
    [No. 92,
    September Term, 1967.]

      Decided February 19, 1968.

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

This is an application for leave to appeal from an order filed ■on July 24, 1967, by Judge Joseph E. Carter, sitting in the •Criminal Court of Baltimore, denying relief sought under the ■Uniform Post Conviction Procedure Act.

In his petition, and at his evidentiary hearing, the applicant raised eleven contentions which were disposed of by the lower •court as affording the applicant no relief. We agree with the ■court’s disposition of all petitioner’s contentions except the tenth, viz., that a confession, which was introduced into ■evidence at his trial, was signed when he was intoxicated. This was disposed of by the lower court on the ground that while the issue of the voluntariness of a confession could be raised ■on appeal, it could not be attacked collaterally under the Act. .Although this was formerly the law, Whitley v. Warden, 222 Md. 608, in the later case of Ledbetter v. Warden, 234 Md. 643, it was held, in effect, that the voluntariness of a confession •could be raised under the Act. See also Strosnider v. Warden, 245 Md. 692; Dennis v. Warden, 243 Md. 104.

That petitioner has a right to raise such contention on post •conviction is, of course, subject to the provisions of the Act with regard to waiver. See Section 645A(c) of Article 27 of the Maryland Code (1967 Repl. Vol.). Appellant did not appeal from his original conviction, although he raised the voluntariness issue at his trial. In his petition under the Act, the applicant does not appear to set forth any special circumstances to excuse his failure to appeal, and it may be that he has waived his right to now raise the question on post conviction. See Bagley v. Warden, 1 Md. App. 154. Whether “special circumstances” exist, however, is initially a matter for the determination of the trial judge. We shall, therefore, remand the case for further consideration of appellant’s tenth contention concerning the voluntariness of his confession. Should the trial judge ■determine that the waiver provisions of the Act are not applicable, then, of course, he must conduct an evidentiary hearing to determine the voluntariness of applicant’s confession.

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


text:
    JOHN R. DAVIS v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 93,
    September Term, 1967.]

      Decided February 19, 1968.

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

This is an application for leave to appeal from an order filed on April 27, 1967, by Judge George L. Russell, Jr., sitting in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act.

The record shows that although the order was filed on April 27, 1967, applicant did not apply for leave to prosecute an appeal until June 11, 1967, or more than 30 days after the entry of the order appealed from. This fails to comply with Md. Code (1967 Repl. Vol.), Art. 27, § 645 I and Md. Rule, BK 46 (a), thus the application must be denied. Bynum v. Warden, 230 Md. 631.

Application denied.


text:
    HENRY GEORGE SCARBOROUGH v. STATE OF MARYLAND
    [No. 113,
    September Term, 1967.]

      Decided February 19, 1968.

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

      Alan Iff. Murrell for appellant.

      William E. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Bernard J. Dis

      chinger, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was charged in indictment No. 1258 with the sale of a lottery ticket (1st count), the keeping of a room at 514 N. Patterson Park Avenue for the purpose of selling lottery tickets (2nd count), permitting the room, of which he was the owner, to be used as a place for selling lottery tickets (3rd count) and possession of lottery slips (4th count). There was an addendum to that indictment warning the appellant that the State had evidence that he had been convicted formerly of violation of the lottery laws and intended to prosecute him for the current offense as a subsequent offender. See Maryland Rules, 713. He was also charged jointly with Emma Elizabeth Scarborough, in indictment No. 1126, containing sixteen counts, with bookmaking and related offenses. The appellant went to trial without a jury in the Criminal Court of Baltimore on both indictments, and, by his election, the issue of whether or not he was a subsequent offender was tried concurrently with indictment No. 1258. He was found guilty under indictment No. 1126 on the 9th count (using the house at 514 N. Patterson Park Avenue for the purpose of betting on the result of a race), and on the 10th count (using the house for the purpose of making books and pools upon the result of a race) and guilty generally under indictment No. 1258. He was sentenced to imprisonment for a term of 3 years upon the convictions under indictment No. 1258 as being a second time convicted of an offense relating to lotteries, Md. Code, (1967 Repl. Vol.), Art. 27, § 366, and for a term of 1 year upon the convictions under indictment No. 1126, to run concurrently with the 3 year sentence.

On appeal he contends that:

I The search warrant was invalid ;
II The evidence was not sufficient to sustain the convictions.

The application for the search warrant, properly signed and sworn to by Lawrence A. Banks, a “Patrolman of Police of Baltimore City” before a judge of the Supreme Bench of Baltimore City contained alleged facts within the personal knowledge of the affiant from which it clearly appeared that there was probable cause for the issuance of the search warrant. See Md. Code, supra, Art. 27, § 551. The appellant urges, however, that the facts alleged were actually not facts but fiction, that the allegations of the affiant were false because he did not observe what he swore he observed and that since the basis of the probable cause was “false and fictitious statements” the warrant was invalid.

It has been firmly established in this State that “the court’s consideration of the showing of probable cause should be confined solely to the affidavit itself.” In Smith v. State, 191 Md. 329, 335, cert. den. 336 U. S. 925, the Court said:

“The better rule seems to be that the court’s consideration of the showing of probable cause should be confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted, as was done in the instant cases, by receiving the testimony of the accused and other witnesses. * * * We are of opinion that any inquiry as to whether the affidavit, on which the search warrant was based, showed probable cause is confined to the affidavit alone and testimony should not be taken to controvert the truth of the allegations therein.”

In Tucker v. State, 244 Md. 488, it was urged by the appellant, as in substance the appellant here urges, that however “legally sound, well intentioned and theoretically perfect” Smith, may be, it has become, “an instrument of oppression and a vehicle of perjury” and that the Court ought to “re-examine” the holding “in light of developments in the field of constitutional law” since it was decided in 1948. In answer, after examination of the cases cited by Tucker in support of his views, the Court quoted Tischler v. State, 206 Md. 386, 390-391:

“Appellant urged that we should abrogate this rule because it encourages police officers to make false statements under oath. But the rule which was adopted by this Court in 1948 was reaffirmed in 1951 in Goss v. State, 198 Md. 350, 354, 84 A. 2d 57; again in 1952 in Adams v. State, 200 Md. 133, 139, 88 A. 2d 556; and again in 1953 in Harris v. State, 203 Md. 165, 172, 99 A. 2d 725. Accordingly we again assert that the rule is so firmly established in Maryland that it should not be changed by a decision of this Court. We also take occasion to say that this rule has been generally followed in other States. [Citing cases.]”

The above language from Tischler was also quoted in Burrell v. State, 207 Md. 278, 280, the Court saying: “We are not persuaded that the earlier cases were wrongly decided.” The Court of Appeals was not so persuaded in Tucker and this Court is not now so persuaded. See Clayton v. State, 1 Md. App. 500.

In any event, however, we do not agree that the evidence before the court in the instant case “clearly established the falsity of Bank’s sworn allegations in the application for the search warrant.” In the application for the search warrant, Banks, assigned to the Rackets Division of the Baltimore City Police Department, stated that on February 21, 1966 about 10:30 A. M. he went to the 500 block of North Patterson Park Avenue to watch for violations of the lottery and bookmaking laws, paying particular attention to Emma’s Cafe at 514 North Patterson Park Avenue. He saw two men enter the Cafe and leave after staying a short time. About 11:05 A. M. he entered the Cafe, immediately preceded by a man designated in the application as the First Man. The First Man engaged in a conversation with a woman and Banks heard him say, “Here’s the numbers I got,” and handed her some slips of white paper and money. The First Man said, “Where’s Hennie, I got some horse bets for him.” The woman called, “Hennie,” and a man designated in the application as the Second Man came “from what appeared to be a back room” and met the First Man at the end of the bar. Banks saw the First Man give the Second Man some small slips of white paper and money. Banks left the Cafe at 11:15 A. M. Banks was again in the vicinity of the Cafe on February 22, 1966 from 10:40 A. M. to 11:40 A. M. and although he did not enter the premises, observed activities by the First Man and others indicating that violations of the lottery and gambling laws were being conducted therein. Pie went back again on February 23, 1966 remaining from 11:05 A. M. to 11:20 A. M. Pie did not enter the Cafe but through a window of the Cafe saw the woman he had observed on P'ebruary 21st and the First Man talking to each other. The appellant’s allegation that the statements in the application were false is predicated on the testimony of Albert Sharpe, a plainclothes officer assigned to the Eastern District of the Baltimore City Police Department, called as a witness for the State. Sharpe was in the Cafe on February 24, 1966, at the time it was raided by the Rackets Division. He had been detailed to Emma’s Cafe for about two weeks to investigate gambling activities. Neither the Rackets Division nor the Eastern District knew that the other had the Cafe under surveillance. It developed on cross-examination that Sharpe had been in the Cafe on February 21st and February 23rd, two of the days covered in the application. Sharpe said he arrived at the Cafe on February 21st between 10:30 to 11:00 A. M. and was in the place “no more than a half hour, and no less than fifteen minutes.” On February 23rd he entered the Cafe around 11:00 A. M. and stayed “about a half hour.” On neither of these occasions did he observe any gambling activities on the premises and specifically did not see the appellant “at any time engage in any gambling activities of any sort.” The pay telephone rang while he was there and it was answered at times by the appellant and at times by the barmaid. He knew Officer Banks by sight but did not see him in the tavern or in its vicinity on February 21st. However, he sat in the back room because he could see “that phone from there” but “you can’t see out front.” We do not agree that this testimony, even if relevant for the purpose, “clearly established the falsity” of the statements in the application. It appeared from the evidence that the bar was located in the front room of the premises. There was a back room connected to the front room by a small hallway on a wall of which was a “public telephone.” Behind the back room was a storage room and rest rooms. Bank’s observations were made while he was outside the tavern and in the front room of the tavern, but Sharpe was in the back room unable to see into thé front roorh. The appellant also attacks the credibility of Banks because of the events during the raid on February 24th. Banks testified that when the police entered the Cafe he and another officer,- Marley, on orders of the sergeant, went to the back of the premises. Marley went directly through the back room toward the storage room. When Banks, following Marley, reached the back room he saw the appellant sitting at a table with a piece of paper in his hand. “He was putting it towards his mouth.” Banks yelled, “He is trying to get it in his mouth.” There was a struggle, during which Marley rendered assistance, but the appellant succeeded in swallowing the paper. On cross-examination Banks said that another man was seated at the table with the appellant when he entered the room. The other man seated at the table was Officer Sharpe. The appellant urges that the testimony of Banks was not credible because of the testimony of Marley, an Officer Zotos, who participated in the raid, and Sharpe, concluding, that if Bank’s testimony in court was not credible, the statements in the application were not credible. Marley testified that he went “straight through the back room” to check the rest rooms and heard the affiant “holler” that the appellant was trying to swallow a slip. He joined the struggle but “didn’t get anything.” On cross-examination he said that when he entered the back room he saw two people sitting at a table but he “was running through”, and did not pay any attention to them at that time. Zotos testified that when they entered the Cafe he remained in the front room with the sergeant. They “heard voices from the back” and the sergeant told him to go see what was wrong. When he arrived in the back room he saw Banks and Marley struggling with the appellant. Sharpe testified that he was in the back room seated at a table with the appellant when the raid occurred. He saw the officers come in the room, got up from the chair and turned to look out front. He heard someone say something like, “He is putting them in his mouth” and when he turned around again “both officers had” the appellant. On cross-examination in answer to a question, “Well, did you see anything at all to indicate he was putting something in his mouth, or near his mouth?”, he replied, “I could not look, I couldn’t get a look at him because both of them had their backs to me and Mr. Scarborough, I couldn’t even see him.” We see no material inconsistency in the testimony of the affiant and the other officers as to impugn the credibility of the affiant and cannot reach the conclusion of the appellant.

We point out that “It is, of course, beyond question that if an applicant for a search warrant wilfully makes a false statement in his affidavit, he can be prosecuted under the Perjury Act.” Tischler v. State, 206 Md. 386, 391-392. While, as the appellant here suggests, it may be of little solace to a defendant to share confinement with a person whose false statements resulted in the incarceration of both of them, we are not constrained to abrogate the rule confining the showing of probable cause solely to the affidavit itself by departing from the decisions of the Court of Appeals and this Court in which the rule is so clearly established and followed. The appellant attempts to distinguish his case from other decisions on the matter on the ground that the evidence he alleges controverted the truth of the statements in the application was not offered by him but was by the testimony of witnesses produced by the State, coming into the case without objection by the State on cross-examination of them. We think it clear under the rule that “any inquiry as to whether the affidavit, on which the search warrant was based, showed probable cause is confined to the affidavit alone,” and, therefore, evidence outside the affidavit, no matter by whom produced or how, is not relevant to the inquiry. We find no error in the denial of the motions “to quash the search and seizure warrant and the application” and “to strike and exclude all evidence.”

II

“For this Court to reverse a judgment entered in a case tried by the lower court without a jury, it must be shown that there was no legally sufficient evidence, or proper inferences therefrom, from which the court could find the accused guilty beyond a reasonable doubt.” Crum and Dunbar v. State, 1 Md. App. 132, 135, quoting McCray v. State, 236 Md. 9, 15. In the search made under the authority of the warrant the police found a “non-conventional lottery slip, containing 232 numbers, indicating $108 in play,” behind the bar in the front room of the Cafe “right opposite where Mrs. Emma Scarborough was seated.” From between the leaves of a Sears Roebuck catalogue under the bar, “about almost half way of the bar,” they recovered “two pay-off slips,” lottery and bookmaking pay-off slips containing “79 individual names, indicating $1,684.25 owed.” About five minutes after the police entered, the public telephone in the hallway between the front and back rooms rang and was answered by the sergeant. The caller, identified as a male by his voice, said he was Sonny (the name Sonny was one of those on the pay-off slip) and asked to speak to “Henny.” The sergeant said he was Henny and Sonny said, “I want three $4.00 doubles at Pimlico, three and five, five and five, four and two, $12, right.” The sergeant replied, “Okay.” Ten minutes later the telephone rang again. The sergeant answered it, identifying himself as Henny. The male voice said, “This is Gus from Maryland. I want 179 for $4 combination; and 314 for $4 combination.” The sergeant replied, “Okay.” The sergeant said there were several other calls requesting to speak to Henny but when he identified himself as Henny they hung up. Officer Marie}? also answered the telephone. The caller, who said he was Ed, asked for Hen. The officer indicated he was Hen and Ed gave the officer a “horse” bet, “Eight up in the first, to nothing certain the second, and two double.” Three or four other times the telephone rang and the callers asked for Hen but hung up when the officer said he was Hen. The beer and wine license for Emma’s Cafe was in the name of Emma Scarborough, 519 North Patterson Park Avenue. There was no evidence as to ownership of the building, whether or not the appellant lived on the premises, whether or not he had any proprietary interest in the business or was an employee of the licensee (it may be inferred from the record that Emma Scarborough and the appellant were man and wife and the appellant’s brief so states).

We think it a proper inference from the telephone calls that the appellant was at least one of those to whom the money was owed as shown by the lottery and bookmaking pay-off slips recovered. The callers asked for Henny or Hen and one of them identified himself as Sonny, a name appearing on the payoff slips. On the evidence of the telephone calls, the pay-off slips, the actions of the appellant in swallowing a white slip of paper despite the unsuccessful attempts of the police to dissuade him, his presence at the time of the raid, his presence during the times Officer Sharpe was in the back room of the Cafe on days preceding the raid (Sharpe testified, “The telephone rang on occasions that I have been in there [the Cafe] * * * Mr. Henry Scarborough has answered the phone [and] the barmaid has answered it”), and the time of day he was on the premises —on all this evidence and proper inferences therefrom-—we think that the trial court could find the appellant guilty beyond a reasonable doubt of using a portion of the building at 514 North Patterson Park Avenue for the purpose of betting and making book upon the result of a race (9th and 10th counts of indictment No. 1126), of selling a lottery ticket and of keeping a room at 514 North Patterson Park Avenue for the purpose of selling lottery tickets (1st and 2nd counts of indictment No. 1258). We feel, however, that the trial court did not have sufficient evidence from which it could fairly be convinced beyond a reasonable doubt that the appellant was guilty of knowingly permitting a room located at 514 North Patterson Park Avenue, of which he was the owner, to be used as a place for selling lottery tickets or of possession of lists, slips and records of money received or to have been received from the sale of lottery tickets (3rd and 4th counts of indictment No. 1258). The record is silent as to proof of ownership of the building, as to who were the lessees of the premises, and as to whether the appellant lived there, showing only that Emma Scarborough was the licensee under the beer and wine license. Both the lottery slip and the pay-off slips were found in the front room—the lottery slip behind the bar “right opposite where Mrs. Emma Scarborough was seated” and the payoff slips under the bar. Nothing was found on the person of the appellant or in his immediate presence. Although under proper circumstances such slips may be held to be in the joint possession of two or more persons (see Rucker v. State, 196 Md. 334), we do not think that the evidence here is sufficient to prove the appellant was in possession of them as charged. Corn-pare Salmon v. State, supra. We must reverse the judgments on the 3rd and 4th counts of indictment No. 1258.

The sentence as a subsequent offender on the general verdict of guilty on indictment No. 1258 was within the maximum prescribed by Md. Code, supra, Art. 27, § 366 and is not invalidated by our reversal of the judgments on the third and ■fourth counts of that indictment. See Tender, etc. v. State, 2 Md. App. 692.

As to Indictment No. 1126:

judgments on the ninth and tenth counts affirmed.

As to Indictment No. 1258:

judgments on the first and second counts affirmed; judgments on the third and fourth counts reversed.

Appellant to pay costs.

      . It appears from the briefs of the appellant and the appellee that each assumed there was a verdict of guilty on the third count of indictment No. 1126. The record indicates that the trial court at first so stated. This gave rise to a discussion participated in by the court, the Assistant State’s Attorney and counsel for the appellant, at the conclusion of which the court said, “Well, I suppose the State is pressing nine and ten.” Receiving an affirmative answer from the State, the court said, “All right, the verdict is guilty on the ninth and tenth counts.” Entries on the original indictment and the docket show the verdict as guilty on the 9th and 10th counts. We think it clear that the court found the appellant guilty only on the 9th and 10th counts.

      . As the appellee’s brief points out, the question presented on the sufficiency of the evidence in the appellant’s brief goes only to indictment No. 1258. However, the argument on the question includes the convictions under indictment No. 1126. The appellant does not contend that he had not been convicted formerly of a lottery offense. Indictment No. 3164 of the docket of 1964, showing that the appellant was found guilty of such an offense, was admitted in evidence without objection.

      . It has been recognized that flight from the police may be evidence of guilt under proper circumstances. Robinson v. State, 229 Md. 503; Salmon v. State, 2 Md. App. 513. By analogy, we think the swallowing of the paper by the appellant, under the circumstances, could reasonably be viewed as evidence of guilt of the crimes charged in the 9th and 10th counts of indictment No. 1126 and the 1st and 2nd counts of indictment No. 1258 even though there was no evidence as to what was on the slip.

        . The sergeant in charge of the raid, knowledgeable in the methods of operation of illegal lottery and gambling activities, testified in response to a question from defense counsel as to why he told Officers Banks and Marley to go into the back rooms: “I have been around so much I know what is going on in that I know Emma is in the business, and also Henry, and know Henry stays in that back room. I know that. So, I instructed those two to go immediately to that back room. I knew Henry would be back there before 1:00 o’clock. I even know, knew the time, that he had to hit it before 1:00, I even knew that when I went in there, and know Emma sits at the front, and sits at the front and watches the front and see who comes up and down the street, and knew where Emma would be, and she was right where I said she would be. And that is why I gave those instructions.”


text:
    JOHN ARTHUR JOHNSON v. STATE OF MARYLAND
    [No. 143,
    September Term, 1967.]

      Decided February 19, 1968.

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

      Joseph G. Koutz for appellant.

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

John Arthur Johnson, the appellant, was convicted of common law rape in the Criminal Court of Baltimore, Judge James K. Cullen presiding without a jury.

The evidence adduced at the trial showed that in the afternoon of November 7, 1966, Johnson, who had just been released from the Maryland Penitentiary, went to the home of his friend Eddie Smith. According to the testimony of Eddie’s mother, Johnson, upon learning that Eddie was not at home, forced his way into the Smith apartment. Johnson then pulled down the shade in the living room and grabbed Mrs. Smith. He hit her several times with a brick; and he raped her while holding a soda pop bottle over her head. A few minutes later Eddie Smith returned home. After Mrs. Smith let her son in, Johnson, according to the prosecutrix's testimony, threatened that if Eddie should call the police he would kill him. Mrs. Smith, nonetheless, called the police while her son stayed with Johnson.

Johnson contends that there was insufficient evidence of penetration to sustain the conviction as required by Craig v. State, 214 Md. 546, 136 A. 2d 243. He specifically says that Mrs. Smith’s testimony that “he intercoursed with me” was not enough to show penetration. In McEntire v. State, 2 Md. App. 449, 235 A. 2d 311, it was held that proof of penetration was shown by use of the term “sex relations.” The Court of Appeals in Robert v. State, 220 Md. 159, 151 A. 2d 737 held that sufficient proof was established by the term “sexual intercourse.” The Court of Appeals, further, stated that the jury was entitled to examine other pertinent facts in weighing the testimony of the prosecutrix to see if she understood the meaning and ramification of words—sexual intercourse.

Mrs. Smith, at the time of the trial was forty-four years old, a married woman and mother of three. She was nervous while on the stand and somewhat reluctant to go into the details of the penetration. She did testify that Johnson threatened to kill her after he had “finished busting his nut.” In answer to the meaning of this phrase, she testified that it meant “the intercourse, finish intercourse.” On cross-examination Mrs. Smith stated that she reported to her son that Johnson had raped her, not “attempted to rape her” as suggested by counsel. At the end of her testimony, the court asked her if Johnson had penetrated her and her answer was in the affirmative. When asked by the State’s Attorney to explain what “he intercoursed with me” meant, appellant’s counsel objected whereupon Mrs. Smith said “Do you want me to say that word?” Although counsel withdrew his objection, the court stated “I will sustain the objection, but I—intercourse—I suppose I know what that means.”

It seems clear that Mrs. Smith, a forty-four year old mother knew what “he intercoursed with me” meant. It is further clear from the tone of the whole testimony that the court and counsel were aware of the full implications of that phrase—“he intercoursed with me.” We hold that on the facts of this case these words are sufficient to prove penetration, see McEntire v. State, supra. The testimony of the prosecutrix need not be corroborated, Lucas v. State, 2 Md. App. 590, 235 A. 2d 780.

Johnson, further, points out that the medical report, received into evidence on stipulation, stated that there was no injury to the thighs or external genitalia and spermatozoa were not found by a smear test. This would not be inconsistent with the prosecutrix’s testimony in that force does not have to be physical, Lucas v. State, supra, and it is not necessary for the sex act to be completed in order that penetration be proven, see Green v. State, 243 Md. 75, 220 A. 2d 131, 134.

Johnson contends that Mrs. Smith’s testimony was so contradictory as to be totally unreliable. The mere fact that Mrs. Smith’s testimony was inconsistent with Johnson’s does not bring it within Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683. Under this rule, the inconsistencies must occur within the witness’s own testimony and relate to pertinent issues, see Bell v. State, 2 Md. App. 471, 235 A. 2d 307. This did not happen here. The trier of facts is under no obligation to believe Johnson’s version, Logan v. State, 1 Md. App. 213, 228 A. 2d 837, Johnson v. State, 2 Md. App. 486, 236 A. 2d 41, and furthermore the “weight of the evidence and credibility of the witness are for the trier of facts to determine,” Dunlap v. State, 1 Md. App. 444, 230 A. 2d 690.

Judgment affirmed.


text:
    JOHN C. ROBINSON v. DIRECTOR, PATUXENT INSTITUTION
    [No. 39,
    Sepember Term, 1967.]

      Decided February 20, 1968.

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

This is an application for leave to appeal from an order of April 11, 1967, of Judge William J. O’Donnell, presiding in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act after an evidentiary hearing.

Applicant was sentenced on June 20, 1961, to a term of not more than eight years on each of four convictions of common law robbery, the sentences to run concurrently. On that date, he was ordered to be committed to Patuxent Institution for examination as a possible defective delinquent as defined by Md. Code (1957), Art. 31B, § 5. Applicant was found to be a defective delinquent at a hearing in the Criminal Court of Baltimore on September 14, 1962, and was committed to Patuxent Institution. On May 14, 1966, applicant prayed for the issuance of a writ of habeas corpus in the Baltimore City Court. The writ was denied by order filed on August 14, 1966.

The application is denied for the reasons set forth in the memorandum of Judge O’Donnell accompanying the order with one exception. At the hearing, applicant’s counsel alleged that the applicant was “not then taking treatment at Patuxent.” Judge O’Donnell correctly found that such an allegation cannot be raised under the U. P. C. P. A. He said, however, that since such an allegation is irrelevant to a re-determination hearing as to defective delinquency, it was analogously “irrelevant on stronger grounds in a post conviction proceeding.” We note that in Daniels v. Director, 238 Md. 80, Alt v. Director, 240 Md. 262 and Director v. Daniels, 243 Md. 16, the issue of whether appropriate treatment at Patuxent Institution was being given to the inmate was raised and considered on a re-determination hearing where the constitutionality of the Defective Delinquent Act was attacked. The lower court also stated that habeas corpus was not a proper remedy for a review as to complaints of medical treatment, citing Warfield v. Raymond, 195 Md. 711, State Ex Rel. Baldwin v. Supt. State Reformatory for Males, 192 Md. 712, and State Ex Rel. Jacobs v. Warden, Maryland Penitentiary, 190 Md. 755. We note that the cited cases dealt with inmates of prisons attempting to procure medical treatment, not with defective delinquents confined to Patuxent Institution. In any event, such an allegation may not be raised in a post conviction proceeding as it does not relate to the validity of the original judgment on the criminal offense, Knox v. Director, 1 Md. App. 678; Creswell v. Director, 2 Md. App. 142.

Application denied.


text:
    THOMAS EDWARD HICKS v. STATE OF MARYLAND
    [No. 30,
    September Term, 1967.]

      Decided February 23, 1968.

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

      Kathryn B. Diggs for appellant.

      Lewis A. Noonberg, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, and William A. Linthicum, Jr., State’s Attorney for Montgomery County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant, Thomas Edward Hicks, was found guilty of statutory rape by a jury in the Circuit Court for Montgomery County and sentenced by Judge Ralph G. Shure, the presiding judge, to serve twelve (12) years in the Maryland Penitentiary.

In this appeal, three questions are presented:

1. Did the trial Court commit error in admitting evidence of the Appellant’s activities with a third party ?

2. Were the advisory instructions of the lower Court relative to certain testimony concerning acts of the Appellant with a third party prejudicial to the Appellant?

3. Was the evidence sufficient to support the jury’s verdict?

The prosecutrix was a seven year old child in the second grade of elementary school who was visiting her aunt and uncle. According to her testimony, she and another young girl, who was six years old, went next door to a vacant house. There they encountered two men, the Appellant and his co-worker, Eric Anderson, sitting in the garage of the vacant home. The prosecutrix testified that she told the men that she and her friend were making a camp and were looking for some sticks. She stated that shortly after she and her young friend arrived at the vacant house the Appellant took her into the house, showed her through the rooms, and finally took her into an upstairs closet; that while they were in the closet, he pulled down the bottom part of her bathing suit and asked her if she wanted to see how real people, big people, kiss. She testified that there was a penetration and that he committed certain perverted sex acts. She said that she did not cry, did not scream, and that the Appellant asked her not to tell anybody about what had happened. On cross examination she stated that her brother, Neal, had come over to the garage at or about the same time that she and her friend had gone there.

Anderson testified that while he and the Appellant were in the garage the prosecutrix and her friend came in and asked if there were any sticks. He testified that the Appellant took the prosecutrix into the house after she had asked him to show her through and that he was gone approximately ten minutes; that when they came back to the garage the young child was not crying and that her appearance was the same as before she entered the house. After testifying as to the Appellant’s activities with the prosecutrix he was permitted to testify, over objection, that the Appellant then took the second litle girl upstairs ; that he went up looking for them; that he called to the Appellant in the master bedroom and said, “ T got to go’ and he said, ‘I’ll see you tomorrow * * ”

The physician who examined the prosecutrix several hours later indicated that there was trauma to the vaginal area and that the hymeneal membranes had been penetrated. However, he could not state with reasonable medical certainty what object or objects caused the trauma which he observed.

The second child was called to the stand but her testimony was limited to what the Appellant had said to the prosecutrix in her presence. She did not testify as to any activities that had taken place between her and the Appellant.

The brother of the prosecutrix testified that the two little girls had been looking for sticks and that the Appellant took the prosecutrix upstairs and showed her the house. He stated that they were away from the garage approximately ten minutes. Over objection by the defense, he was permitted to testify that the Appellant also went upstairs with the second little girl; that shortly thereafter he followed them upstairs; and that he heard the Appellant say to the little girl, on the inside of a locked bathroom door, “take off your bathing suit.” He further stated that after the Appellant brought the little girl back down to the garage the Appellant drove away and that as the Appellant did so, he copied down the license number of the car. He also stated that he reported the incident to his aunt and uncle and they notified the police.

The Appellant took the stand and testified that he and Anderson were finishing a beer in the garage when the prosecutrix and her young friend came in and asked for sticks. He further stated that they had some conversation with the two little girls, telling them that there were some sticks that they could have. He stated that the prosecutrix asked if she could go into the house and he told her that he would prefer that she not do so because it was vacant and up for sale, but when she persisted in this request he agreed to show her through the house. He stated that he took her through the house, answered her questions and brought her back to the garage. He denied committing any assault on the prosecutrix and denied taking her into any closet upstairs.

I

The Appellant vigorously argues that the admission of testimony relating to the Appellant’s activities with the second little girl constitutes prejudicial error. It is contended that such testimony is violative of the principle that “in a criminal prosecution proof which shows or tends to show that the accused is guilty of commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment or information, is incompetent and inadmissible for the purposes of showing the commission of the particular crime charged * * It is further contended that the prejudicial error in this case was compounded because the admitted evidence related to a subsequent, rather than a prior, crime. The Appellant concedes that there are exceptions to the general rule stated above but urges that none of them are applicable or should be invoked in the case at bar.

There can be no question that the principle advanced by the Appellant is a well established rule not only in this State but generally accepted throughout the courts of our Country. This Court recognized and applied the rule in Gorski v. State, 1 Md. App. 200, where we stated:

“In Wentz v. State, 159 Md. 161, 163-166, the Court of Appeals (p. 164) stated the general rule to be that ‘ “Offenses against other persons than the one against whom the offense with which the defendant is charged was committed are inadmissible.” ’ (citing Wharton on Criminal Evidence (10th Ed.), p. 170). ‘ “The theory on which evidence of other offenses is excluded is that the jury may be misled into a conviction for an offense for which the defendant is not indicted, or that he may be prejudiced by the accumulation of offenses which he is not prepared to defend.” ’ (p. 165). Quoting from Cothron v. State, 138 Md. 101, 110, the Court of Appeals further stated that the exceptions to the general rule are ‘ “to prove the specific crime charged when it (the proffered evidence) tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of a crime or trial.” ’ ”

The Appellant argues that none of the five exceptions set forth above are applicable in the case at bar and therefore our decision here must be controlled by our decision in Gorski, supra. Under the factual situation in which this case reaches us, it is unnecessary to determine whether the exceptions enumerated in Gorski, supra, are applicable since we are of the opinion that the testimony was admissible under another, and well established principle, namely, the doctrine of res gestae. This doctrine, as applied in sex offenses, was succinctly stated in 1 Wharton’s Criminal Evidence (12th Ed.) Sec. 242:

“When the similar offense as to which proof was offered took place on the same occasion as the sexual offense for which conviction was sought and was so connected therewith as to constitute a part of the transaction, or as commonly said by the Courts, to be a part of the res gestae, evidence of the other offense is admissible upon the trial as a connected crime.”

While Professor Wharton uses the expression “res gestae” in stating the rule, he criticizes the use of the term (Sec. 234) :

“When the other crime was committed at the same or substantially the same time as the crime for which the defendant was charged, it is frequently said that the proof of the other crime is admissible as part of the res gestae. Although this is not a technically correct use of the term ‘res gestae’, the matter is academic, for the result is that the evidence of the concurrent crime, by whatever name it is called, is held admissible.”

Although we do not quarrel with Professor Wharton’s assertion as to the technical misuse of the term, it is a fact that a substantial number of courts have adopted the term to describe the rule and it has been so adopted in our State (See Van v. State, 1 Md. App. 347, 352.). Until a more accurate term can be conjured, we feel compelled to treat the rule as a segment of the doctrine of res gestae.

The principle we are here considering was the subject of an Annotation, 167 A.E.R. 565, entitled, Admissibility in prosecution for sexual offenses, of evidence of other similar crimes. After an extensive review of the cases on the subject, and based on the language used by the courts throughout the country in these cases, the author of the Annotation states the rule in language almost identical with that used by Professor Wharton. We are persuaded that the rule is bottomed upon a sound principle of law.

Accordingly, we are of the opinion that in the factual posture of the case at bar, the testimony concerning the Appellant’s activities with the second child was admissible under the res gestae rule enumerated above. The record shows that after the Appellant brought the prosecutrix down stairs he then took the second girl by the hand and led her upstairs and engaged in substantially the same licentious conduct. Thus, his activities with respect to the second child were so closely related to those with the prosecutrix, both in time and place, as to constitute a part of one transaction. In other words, they were a part of the res gestae and, therefore, testimony with respect thereto was admissible.

In reaching this conclusion we should allude to the well established rule set forth in Wharton, supra, Sec. 280, that “whether evidence comes within the res gestae rule is a matter which is left to the discretion of the trial judge. An Appellate Court will reverse his judgment only upon clear proof that he has abused that discretion and committed clear error.” Here, we cannot find any abuse of the trial judge’s discretion and we think the testimony was plainly admissible.

II

The Appellant next contends that the trial judge’s comments during the course of his instructions concerning the testimony of the Appellant’s activities with the second child were prejudicial because such testimony was inadmissible. This contention is not properly before us inasmuch as no exceptions to the instructions were taken at the trial below. Md. Rule 756 g. In any event, his comments in this regard were not improper in view of our conclusion that such testimony was admissible.

III

The Appellant finally contends that if the evidence concerning his activities with the second child were excluded, as he argues it should have been, the remaining evidence was legally insufficient to support the jury’s verdict. In view of our holding that such evidence was admissible this contention is without merit.

Judgment affirmed.

      . The cases analysed in the Annotation are fully set forth therein and need not be restated here. The Annotation has been supplemented and brought forward in 77 A.L.R. 2d 841.


text:
    JOHN HENRY AUSTIN v. STATE OF MARYLAND
    [No. 111,
    September Term, 1967.]

      Decided February 23, 1968.

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

      Edward J. Angelletti for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Atotrney for Balitmore City, and Jannes F. Garrity, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

At a trial held on February 20-21, 1967, the appellant, John Henry Austin, was convicted of robbery with a deadly weapon by a jury in the Criminal Court of Baltimore. He was thereafter sentenced to a term of twenty years in the Maryland Penitentiary. The questions presented on this appeal relate to the propriety of certain of the trial judge’s rulings on discovery matters and evidentiary points.

The evidence adduced at the trial established that on the morning of February 16, 1965, Mrs. Mae Duda was robbed of some $788.00 by two Negro men who had entered her living quarters above the funeral home which she operated in Baltimore City. The faces of both men, one of whom carried a revolver, were covered with blue handkerchiefs, but during a struggle the mask fell from the face of one of them. On March 8, 1965 Mrs. Duda identified a police photograph of the appellant as the man who had become unmasked in the course of the crime. On March 12, 1965 Mrs. Duda again identified the appellant from a police line-up as one of her assailants.

Prior to the trial, appellant filed a motion for discovery requesting, inter alia, the names of witnesses whom the State intended to call to prove its case and the substance of any written or oral statements made by the appellant. The State’s answer to this motion disclosed a list of forty-three prospective State’s -witnesses and further stated that the appellant had made no statements of any kind. Subsequently, on February 17, 1967, three days before trial, the State filed a supplemental answer to appellant’s motion for discovery in which it set forth the substance of certain statements made by the appellant to the victim during the crime. Appellant’s motion to suppress the supplemental answer was denied by the court below.

At the trial Officer Raymond Kraft testified that State’s Exhibit 4, a picture of the appellant, which he recognized by its police identification number, was the same picture as that pointed out by Mrs. Duda on March 8, 1965. On cross-examination, however, defense counsel demonstrated that the picture had, in fact, been taken on March 10, 1965, thus precluding the possibility that Mrs. Duda had ever identified State’s Exhibit 4. In an attempt to clarify the matter, the State called Sergeant Henry Becker of the Police Identification Bureau as a witness, although he had not been included in the list of witnesses furnished to the appellant in the State’s answer to appellant’s motion for discovery. On this ground, appellant objected to his testimony. The objection was overruled. Sergeant Becker then testified that an identification number on a police photograph is keyed to the subject of the photograph, not the picture itself. He produced two prior photographs of the appellant from police files, each of which bore the same identification number as State’s Exhibit 4. One of these pictures, dated September 9, 1955, was admitted into evidence as State’s Exhibit 6 over appellant’s objection.

In presenting his defense to the charges against him, appellant read into the record the former testimony of John W. Ketcham, since deceased, taken from appellant’s prior trial which had been invalidated as a result of Schowgurow v. State, 240 Md. 121. At that trial, Ketcham had testified that about the time of the robbery he observed two colored men wearing dark overcoats enter Mrs. Duda’s premises and then depart about twenty minutes later. Ketcham was not, according to his testimony, able to identify either of the men. Appellant then called Sergeant James Gorsuch as a witness. He testified that immediately after the crime he had interviewed Ketcham and had written a departmental report following the interview. The appellant offered the report as evidence for the purpose of showing that Sergeant Gorsuch had received from Ketcham a description of the two men substantially different from that given the police by Mrs. Duda—a description also different from that of the appellant himself. The trial judge, however, sustained the State’s objection to the proffer, ruling that the report was irrelevant and that appellant could in no way add to or detract from Ketcham’s testimony as given at the prior trial.

Appellant’s first contention is that the trial court committed reversible error by denying his motion to suppress the State’s supplemental answer to his motion for discovery, setting forth the substance of an oral statement made by appellant to the victim. We cannot agree. Appellant’s statement having been made to a victim was not within the purview of Maryland Rule 728 requiring the State to furnish the defendant with “the substance of any oral statement made by him which the State proposes to produce as evidence to prove its case-in-chief.” Barton v. State, 2 Md. App. 52; Boone v. State, 3 Md. App. 11.

Appellant’s second assertion of error is that the court below improperly allowed Sergeant Becker to testify when he had not been listed as a witness in the State’s answer to appellant’s motion for discovery. This contention likewise lacks merit. While Becker was called to testify as a witness during presentation of the State’s case-in-chief, his purpose was not to testify with respect to any facts of the crime or of the appellant’s connection with it, but rather to provide the jury with some expertise concerning the identification procedures used by the police department in the matter of marking police photographs. Sergeant Becker’s testimony established that the police were in possession of more than one photograph of the appellant bearing the same serial number. Under these circumstances, and bearing in mind that the State could not anticipate prior to trial that Becker’s testimony would be needed, we see no error in permitting him to testify even though his name was not listed by the State as a potential witness.

Appellant next contends that the court erred in excluding from evidence the police report written by Sergeant Gorsuch containing the descriptions given to him by Mr. Ketcham of the men he had seen entering the Duda funeral home just prior to the crime. At the trial, appellant urged that the report was admissible as part of the res gestae. The trial court declined to admit the report on that ground and ultimately ruled that it was inadmissible as not relevant to any issue in the case. Appellant contends on appeal that the report was admissible to show that Ketcham’s description of the men was different from that given by Mrs. Duda to the police. Appellant does not state upon which rule of evidence he places reliance to support the admissibility of the police report. We do not know, therefore, whether appellant urges the report’s admissibility as a business record under Section 59 of Article 35 of the Maryland Code (1965 Repl. Vol.), or whether his purpose was to show that Ketcham’s testimony at the trial to the effect that he could not identify either of the men was inconsistent with his prior statement to Sergeant Gorsuch by which he provided descriptions of the two men. In the absence of some clear showing by the appellant of a proper basis supporting the report’s admissibility under the rules of evidence, we agree with the trial judge that the substance of the report was not relevant to the issues in the case since, at most, it established that Ketcham’s description of the men who entered the victim’s home was different than that given by the victim of her assailants and, additionally, different from that of the appellant. We note that Ketcham’s description of the men, as related in the police report, was most general and actually was consistent with the victim’s description of the clothing worn by the two men. In any event, we see no error in the court’s refusal to admit the police report into evidence.

Appellant's final contention is that State’s Exhibit 6, a police photograph of the appellant dated September 9, 1955, was improperly admitted below, as its introduction tended to reveal appellant’s prior criminal record to the jury. While we agree with the appellant’s statement that his character cannot be attacked by showing prior convictions before he has put the same in issue, we cannot agree that the admission of the photograph in question was prejudicial for that reason. Testimony by Mrs. Duda and Officer Kraft to the effect that the appellant had been identified from his picture in the police file had already been introduced before the State proffered its Exhibit 6. In fact, State’s Exhibit 4, a police photograph of the appellant believed at the time of its introduction to be that identified by Mrs. Duda, had been received into evidence without objection. Testimony that a victim was able to identify his assailant from a police photograph is admissible, Judy v. State, 218 Md. 168; Basoff v. State, 208 Md. 643, and we think that evidence of the photograph so identified was properly admissible. Under the circumstances of this case, we conclude, therefore, that the trial court committed no error in admitting the police photograph of the appellant.

Judgment affirmed.