author: Per Curiam.

text:
    CLARENCE BROWN, JR. and CLARENCE BROWN, SR. v. STATE OF MARYLAND
    [No. 254,
    September Term, 1967.]

      Decided June 7, 1968.

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

      Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for appellants.

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

Clarence Brown, Jr. and Clarence Brown, Sr., the appellants, complain of convictions for obtaining money by false pretenses in a trial before the court in the Criminal Court of Baltimore, Judges Charles D. Harris and Thomas J. Kenney presiding. They allege error in that there was an insufficiency of evidence to support the convictions and error in the failure of the trial court to sustain an objection to certain evidence.

The evidence shows that the Browns were partners in a professional bail bond business operating in the City of Baltimore, and that during the course of their business they filed five separate petitions for reductions in the amount of the forfeitures on certain bail bonds on which they were sureties. One petition was signed by Brown, Sr. and the other four by Brown, Jr. The evidence for the State’s case in chief was, by agreement, received on a statement of the State’s Attorney. As to Indictment No. 3980, the statement was as follows:

“On March 23, 1966, Clarence Brown, Jr., agent for United Bonding Insurance Company, 1506 Pennsylvania Avenue, did appear before Judge James A. Perrott of Criminal Court, Part 5, with a petition in a bail forfeiture hearing in Indictment Number 989 of 1958, State versus Roger Bryant. Incorporated in the petition was a false expense account in amount of $300.00 of the Monumental Detective Agency, showing work which was done by James Green and Lawrence Wheeler as agents of Monumental Detective Company who worked on the investigation.
“The investigation showed, however, that the Monumental Detective Insurance Company was not in business since April 30, 1965. At that time, at that date, on April 30, 1965, that particular Monumental Detective Insurance Company went out of business and was non-existent after that date. During the year 1965 it never at all operated the detective agency. James Green and Lawrence Wheeler, who were named in the petition, never were agents, nor did they work at any time for that particular detective agency.”

The petition referred to was offered into evidence showing that bond in the amount of $500.00 had been previously forfeited ; that the petitioners had gone to considerable expense in trying to locate the defendant, Roger Bryant, and offered in settlement the sum of $175.00, and that the petitioners agreed also to pay any expenses incurred if Roger Bryant should thereafter be apprehended. Attached to the petition was an expense account claiming expenses of $325.00, $300.00 of which was alleged to have been paid to the Monumental Detective Agents, James Green and Lawrence Wheeler and $25.00 of which was for miscellaneous expenses. Also attached to the petition was an order signed by a judge of the Supreme Bench of Baltimore directing the Sheriff of Baltimore City to accept the sum of $175.00 in full settlement of the forfeiture and releasing the bondsmen.

On Indictment No. 3981 the statement of facts was similar except (1) as to the name of the defendant (Dudley) and (2) the amount offered and accepted by the judge in settlement of a $500.00 bond was $250.00, based on alleged expenditures of $325.00', $300.00 of which was allegedly paid to James Green and Lawrence Wheeler, agents for Monumental Detective Agency and $25.00 of which was for miscellaneous expenses.

On Indictment No. 3982 the statement of facts was similar except as to (1) the name of the defendant, (Robinson) and (2) the amount claimed as expenses was $300.00, $250.00 of which was allegedly paid to James Green and Lawrence Wheeler, agents of Monumental Detective Agency, and $50.00 was claimed for miscellaneous expenses. Two hundred dollars was offered and accepted by the judge in settlement of a $500.00 bond. This was the only petition signed by Brown, Sr.

On Indictment No. 3983 the statement of facts was similar except (1) as to the name of the defendant, (Palmer) and (2) the amount claimed as expenses was $307.00, $210.00 of which was allegedly paid to James Johnson, Wilbert Hassell and Norman Carroll as agents of Monumental Detective Agency, $10.00 of which was for telephone calls, $52.00 of which was for a trip to Bethlehem, Pennsylvania, and $35.00 of which was for miscellaneous expenses. Two hundred dollars was offered and accepted in settlement of a $500.00 bond.

On Indictment No. 3984 the statement of facts was similar except as to (1) the name of the defendant, (Dorsey); and (2) the amount claimed as expenses was $350.00, $150.00 of which was allegedly paid to Wilbert Hassell and Lawrence Jackson, agents for Monumental Detective Agency, and $200.00 of which was for miscellaneous expenses. Two hundred dollars was offered and accepted in settlement of a $500.00 bond.

Both defendants testified, claiming that they had actually spent the money shown on the petitions even though it was not paid to Monumental Detective Agency. Brown, Jr. testified that their books of account would support the expenditures, but that he had not brought the records with him because he did not think they would be necessary; whereupon the court requested that the records be produced after a luncheon recess. The Browns examined the records and testified that they showed expenditures of $60.00 as to Indictment No. 3980 (Bryant), $25.00 as to Indictment No. 3981 (Dudley), $5.00 as to Indictment No. 3982 (Robinson), $85.00 as to Indictment No. 3983 (Palmer), $15.00 as to Indictment No. 3984 (Dorsey).

Wilbert Hassell testified for the defendants saying that he was employed by the Browns and never had worked for Monumental Detective Agency; that he had spent money going out with Palmer’s (Indictment No. 3983) girlfriend in an attempt to locate him. He testified further that the Browns had reimbursed him in cash for his expenditures, but that he did not know the total amount of the expenditures.

The Browns contend that the evidence was insufficient because of their testimony that they had spent all the money claimed in the expense sheets, and that it was immaterial whether the money was paid to Monumental Detective Agency which no longer existed, or whether it was paid to others. The contention has no importance in this case because there was more than sufficient evidence for the court to believe, as it did, that the Browns never paid the sums claimed to anyone. Not only did the Browns agree to the State’s Attorney’s statement of facts that the expense vouchers were false, but that their own records showed clearly that the claimed expenditures were false.

The Browns contend, also, that their bad or sloppy bookkeeping negatived their fraudulent intent. We are unable to see how the sloppy bookkeeping can negate fraudulent intent. In this connection it should be noted that when testifying, Brown, Jr. stated that only some of the money claimed as expenses in the petition was deducted from the income tax returns.

Brown, Sr. further contends that because he testified that the petition, signed by him, was prepared by his secretary instead of himself, that there was an insufficiency of evidence. We have repeatedly ruled that there is no obligation on the trial judge to accept the testimony of the accused. The important element is that Brown, Sr. presented it to the court as true when in fact he knew, or should have known, that it was false. Ford v. State, 3 Md. App. 175, 238 A. 2d 283, Trout v. State, 3 Md. App. 259, 238 A. 2d 281.

There is also a contention that the judges signing the various petitions did not rely on the false representations as required by Levy v. State, 225 Md. 201, 170 A. 2d 216, Lockard v. State, 3 Md. App. 580, 240 A. 2d 312. The petitions and orders of court thereon show on their face that the various false statements were relied on. In three cases the forfeiture was reduced by the exact amount of the expenses; in the other two the judge accepted the exact amount offered by the petitioners.

We have no problem in deciding that the decision of the trial court was not clearly erroneous within the meaning of Maryland Rule 1086.

The Browns allege error in the fact that the court overruled an objection to the following question:

“Q. Isn’t it a fact that you never really dealt with Monumental at all during the year 1965 and that each and every one of these petitions is fraudulent ?
(Mr. McAllister) Objection.
(Judge Harris) Overruled.”

In answer to the question Brown stated:

“A. I’ll say this, I’ve never dealt with Monumental personally, but the people that come to us say that they work for Monumental. I have never dealt with Miss Smith but once, and that was on a case that I did for her. It’s a lot of persons that come from different ones. They say, T am working for Monumental,’ or T am working for University.’ ”

We are unable to see how the answer given could have prejudiced the Browns in any way.

Judgments affirmed; appellants to pay costs.


source: Caselaw Access Project

author: Orth, J.,

license: Public Domain

text:
    RONALD BUTINA v. STATE OF MARYLAND
    [No. 309,
    September Term, 1967.]

      Decided June 7, 1968.

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

      Robert J. Flynn for appellant.

      Bernard L. SUbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Benjamin R. Wolman, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty of statutory arson by a jury in the Circuit Court for Prince George’s County and sentenced to imprisonment for a term of 10 years.

I

The appellant was convicted of the crime proscribed by Md. Code (1967 Repl. Vol.) Art. 27, § 6, which provides in relevant part:

“Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house * * * whether the property of himself, or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.”

At common law the felony of arson is the malicious burning of the dwelling house of another. Clark and Marshall, Law of Crimes, 6th Ed., § 13.09, p. 893; Perkins, Criminal Law (1957), Ch. 3, § 2, p. 172. The statute enlarges the common law meaning of arson as by its provisions a person commits arson if he wilfully and maliciously either (1) sets fire to or burns or causes to be burned a dwelling house (and other property that is parcel thereto designated by the statute), or, (2) aids, counsels or procures the burning. Thus, although at common law a person not actually or constructively present who “aids, counsels or procures the burning” is an accessory before the fact, under the statute he is a principal to the arson. This was the conclusion reached by the Court of Appeals in Wimpling v. State, 171 Md. 362. The Court said that although it is consistent with the language of the statute that one may be guilty of arson if he has counseled the burning even though there has been no actual burning, page 370, it may be assumed that in the use of the word “counsel” the legislature meant to “counsel” the burning or setting fire to a dwelling house which in fact has been burned or which has been set on fire. Thus while at common law one who aids, counsels or procures another to wilfully and maliciously set fire to a dwelling house is an accessory, by the statute he is made a principal, his act in so counseling, aiding, or procuring is in itself a substantive offense, page 371, and he is subject to the same punishment as though he himself had actually perpetrated the burning, page 369. Since under the statute two separate substantive offenses of arson are defined, it follows that to be validly convicted a person must be properly charged with the offense of arson which the evidence shows he committed. So if he, in fact, set fire to or burned or caused to be burned a dwelling house, he cannot be convicted on a charge that he aided, counseled or procured the burning, and vice versa. But in considering the offense which he in fact committed, consideration must be given to the distinction at common law between principals and accessories, for even though the statute makes a person a principal who at common law would be an accessory before the fact to arson, we think that a person may be convicted of setting fire to or burning or causing to be burned a dwelling house only if he would have been a principal at common law and that he may be convicted of aiding, counseling or procuring the burning only if he would have been an accessory before the fact at common law. Under the common law, parties to a felony are classified as principals or accessories. Principals in the first degree are those who commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent. Persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it, are principals in the second degree. Accessories before the fact are those persons who abet, procure, counsel, or command the deed perpetrated, but who are not present, actually or constructively, at such perpetration. Agresti v. State, 2 Md. App. 278, 280. But in this State there is no practical distinction between principals, in the first and second degree. Vincent v. State, 220 Md. 232, 239, note 1. If the evidence shows that an accused was present, actually or constructively, aiding and abetting the setting of the fire or the burning or the causing to be burned, even though he did not commit the crime himself, thus being a principal in the second degree, he could properly be convicted on a charge that he wilfully and maliciously set fire to or burned or caused to' be burned the property. See Thornton v. State, 232 Md. 542, 544; Veney v. State, 225 Md. 237, 238. We do not find it to be the law of this State, that an accused must be specifically charged as a principal in the second degree.

The indictment returned against the appellant charged under the statute that he “* * * did feloniously, wilfully and maliciously set fire to and burn a certain dwelling house, the property of James Henry Thomas * * He was charged, therefore, with the first offense proscribed by the statute and the charge would be proper if the evidence showed that he was either a principal in the first or second degree at common law, that is to say if he himself perpetrated the crime or was present, actually or constructively, aiding or abetting its commission. The charge would not permit the conviction if the evidence showed that he was an accessory before the fact at common law (the second offense proscribed by the statute), that is to say if he aided, counseled or procured the burning without being actually or constructively present. The appellant alleges that by the evidence the acts he committed showed him to be an accessory before the fact at common law and he contends that, therefore, the indictment was “defective and should have been quashed.” Even if the evidence adduced at trial so showed, the appellant was not entitled to have the indictment dismissed. The indictment charged him with acts coming fully within the statutory description, in the substantial words of the statute, sufficient to apprise him with reasonable certainty that he was accused of committing arson. Dortch and Garnett v. State, 1 Md. App. 173, 176; Wimpling v. State, supra, 368. It was sufficient on its face. The contention as framed and argued goes to the sufficiency of the evidence before the grand jury but we held in Wilson v. State, 4 Md. App. 192, that an indictment may not be challenged on the ground that there was insufficient evidence before the grand jury. The proper question here is whether there was a variance between the allegata and the probata. If so, the appellant would have been entitled to the grant of his motion for judgment of acquittal made at the conclusion of all the evidence, but not to a dismissal of the indictment. So we must review the evidence before the jury.

About 1:00 A.M. on 10 July 1967 Norman M. Thomas was in bed in his frame dwelling house at 611 8th Street, Laurel, Md. when he heard the motor of a car racing. He got up and, looking out the window, saw “an old model black car maybe a Dodge or Plymouth” on the road alongside the house. He went back to bed. “Then I heard this fuming sound, like a whoosh, and when I looked out the back window, that is when the flames were all over the back of the house.” He ran downstairs through the kitchen and saw the flames coming through the kitchen window. “I knew then the house was on fire.” He ran out the front door and saw a “white man run across the road to the automobile.” The car drove away, proceeding west toward uptown Laurel. “I hollered back in the house to my young daughter and told her to try to get the kids out of the house and there was fire and they were all asleep.” He was able to put the fire out with the help of a neighbor.

Merle Cole, the night manager of a gasoline station in Laurel, testified that in the early morning hours of 10 July an old Plymouth car came into the station. “They came in * * * said they were out of gas, asked if I had a can and I told them yes, and I went to my car and got a can * * * and filled it with gas (two gallons) and gave it to them.” The can was put in the car; the gas was not poured into the car’s gasoline tank. He identified a can found by the police near the scene of the arson as similar to the can put in the car.

Richard Reedy was in the station when the car pulled in. He recognized the car as belonging to a Bill Neilson but when he went over to the car, he did not see Neilson. He saw two men in the car, and identified the appellant as the driver. They got two gallons of gas in a can and pulled out.

Officer Gerald Hall of the Laurel Police Department responded to a call in the morning hours of 10 July and went to the Thomas house. Thomas showed him the damage to the house and gave a description of the car “as early model 1949 or 1950 * * * Dodge or Plymouth, black in color.” The officer knew that Neilson owned a car answering that description. The officer went to a shopping center near the intersection of Fourth and Montrose Avenues where he had seen the car on other occasions. As he drove around the shopping center he saw a black 1952 Plymouth pull up at the intersection. He asked the appellant, who was driving, for his operator’s license and the registration card. The appellant showed him his operator’s license and at first said he did not have the registration card, but then he found it in the glove compartment. The appellant was not arrested.

Officer Wallace Mitchell of the Laurel Police Department also responded to the call and went to the Thomas house. He observed the damage and made a report. About 40 minutes after he left Thomas he responded to a call and went to the intersection of Fourth and Montrose Avenues. Hall, the appellant, and another man were standing by a 1952 Plymouth. The appellant showed the officer his operator’s license and a registration card in the name of Janice Neilson. The appellant was permitted to leave. He had made no statement regarding the fire.

Officer Juergen Ervin of the Laurel Police Department testified that the investigation of the fire was turned over to him by the Chief of Police on 14 July. He found that the husband of Janice Neilson had not been interviewed, went to his residence on 15 July and talked to him in the presence of Mrs. Neil-son. He went back later that day and requested Neilson to accompany him to the police station. At the station Neilson made a statement and thereafter was charged with arson. Warrants charging arson were obtain for the arrest of the appellant and two other men. The appellant was located about 7:30 P.M. on 15 July near his home. Ervin read the warrant to him and the appellant read it himself. Thereupon Ervin “advised him he had a right to remain silent. Anything you say can be used against you in a court of law. You have a right to talk to a lawyer and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before a statement is taken if you wish. If you decide to give a statement you still have the right to stop at any time so you may talk to a lawyer.” Ervin asked him if he understood his rights and what had just been explained and he replied that he did. He was asked if he was willing to make a statement without the presence of a lawyer and replied, “Yes.” He was asked, “Have any promises, threats or inducements been made to pressure or coerce you into making this statement” and he replied, “No.” Ervin took the appellant to the police station. On the way Ervin said nothing to the appellant and the appellant said nothing to Ervin. At the station a document was read to the appellant again stating the rights set forth in Miranda v. Arizona, 384 U. S. 436. It concluded:

“Waiver of rights. I have read the statement of my rights and understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me. No pressure or coercion of any kind has been used against me.”

The appellant signed this document and then gave the police a statement which was reduced to writing and signed by him. At the trial, counsel for the appellant cross-examined Ervin as to the voluntariness of the statement but offered no evidence with regard thereto. The trial court found that the statement was given by the appellant “voluntarily, knowingly and intelligently” and admitted it in evidence. The statement showed that the appellant was asked by the police to tell what happened on 10 July with reference to the burning of Thomas’ dwelling. He said:

“A. On early Monday morning about 1:00 A.M. 7-10-67, I met Paul White, Neilson, Don Kemper, and Pressley, who were in a 1952 Black Plymouth, owned by Neilson, at the Laurel Swimming Pool, at the end of Main St. At that time Neil-son asked me to go to a party, at which time I mounted Neilson’s vehicle, and took control of same, as Neilson asked me to Drive his vehicle. We left the Pool, as we arrived at Main and 9th St, Paul White said, make a right here at 9th St, and go down to the Grove area, When we arrived at the Laurel Grove Ave 8th St and Rt 198 (Talbott Ave.) White said pull over, we are going to Set the House on Fire, meaning 611 8th St, Laurel Md. I told him no, dont set the House on Fire, because I knew Mr. Thomas. Paul then said pull over I and Kemper, we have to go to the Bath room I stopped the vehicle on Rt 198 (Talbott) and 8th St, Laurel Md. When I had stopped, Paul White and Don Kemper left the vehicle, and Pressley was standing out side of the vehicle, Several minutes later I observed a big flash on the house of 611 Eight St., same started to burn, and I then observed Paul White and Don Kemper come running across the street from the Burning House towards the vehicle. After Paul White and Don Kemper jumped into the car, Paul White said lets get out of here. We drove down Rt 198 towards Harding Pontiac, down Sandy Spring Rd. and stopped by the Laurel Police Station. We left Montgomery St, and then later drove past 611 8th St, which is the House Don Kemper and Paul White set on Fire. After we drove past the Fire we went to 1008 8th St, Laurel Md, the Residence of Mr. Patterson. I wanted to stop at the-Fire, however the other guys in the vehicle, Paul. White, Don Kemper, Pressley and Neilson said' not to stop, they told me to continue on. After we arrived at 1008 8th St, Pressley and myself left in Neilsons Car to get some more Beer, and to see if some other guys would come to the party, As I drove by 4th St and Montrose Ave, Laurel Md, I was stopped by a Laurel Police Officer, after the Officer had talked to me and Pressley they then-, let us go. I then walked home, and Pressley walked home. I left Neilson vehicle the 1952 Plymouth, parked on Rt 198 (Talbott Ave).
Q. When you left the Fire at 611 8th St, Laurel did' Paul White or Don Kemper say, who set the-Fire?
A. Don Kemper said he poured the Gasoline all over-the House (611 8th St) and got it real good, Paul White then said good. I remember Kemper saying that he had gasoline on His boots’, and he tried to wash it off When we were at 1008 8th St, Laurel Md.
Q. Do you know what happened to the gas can?
A. No. I don’t, I didn’t even know they had the gas when they pickt me up earlier.”

No evidence was proffered in behalf of the appellant.

It is firmly established that the test in reviewing the sufficiency of the evidence in a jury case is whether any relevant evidence was given to the jury which could have sustained the conviction. Tillery v. State, 3 Md. App. 142. Applying this test, we have no difficulty in determining that the evidence was ample for the jury to find that the appellant was guilty of arson. There is no question as to the proof of the corpus delicti. See Gamble v. State, 2 Md. App. 271. The fire did occur and it is a clear inference from evidence independent of the confession that it was wilfully and maliciously set. See Whitmer v. State, 1 Md. App. 127; Howard v. State, 1 Md. App. 379. We think it clear also that the evidence was sufficient to establish the criminal agency of the appellant. He was driving the car when a two gallon can of gasoline was purchased immediately before the crime and placed in the car. By his own statement he drove the actual perpetrators to the scene of the crime, was actually present in “close proximity or contiguity” in a position to assist if necessary or to watch or prevent interference or detection or to encourage the commission of the crime at the moment of its commission and drove the car in which the actual perpetrators departed from the scene of the crime. The evidence was sufficient for the jury to find that he was a principal in the second degree and to find him guilty of the offense the actual perpetrators committed. Thomas v. State, 2 Md. App. 502; McEn tire v. State, 2 Md. App. 449, 453. Therefore, since he was, by the evidence, a principal and not an accessory before the fact, the allegation in the indictment was proper and there was no variance between the charge and the proof. We find that the motion for judgment of acquittal was properly denied and that the evidence was sufficient to sustain the conviction.

II

The appellant complains that his statement was improperly admitted in evidence. He does not allege on appeal that his statement was obtained without compliance with the Miranda safeguards or that it was the result of promises, inducements, threats or physical violence. He urges, however, that the attention of the police was focused on him and Neilson as the result of an illegal arrest of him. He alleges that when the police stopped the car he was driving and asked for his operator’s license and the registration card, he was illegally arrested. The police obtained his name thereby and the registration card disclosed that the car belonged to Janice Neilson. This led the police to her husband, William Neilson, who gave a statement to the police, and it was the confrontation of him with Neil-son’s statement that caused him to give a statement. He concludes therefrom both that the indictment was found on the basis of evidence illegally obtained and that his statement was inadmissible as “fruits of the poisonous tree.”

With regard to the indictment, it is the well settled rule that the competency of testimony before the grand jury will not be inquired into by the courts and is no ground to dismiss the indictment. Costello v. United States, 350 U. S. 359, 363; Pick v. State, 143 Md. 192, 196; Wilson v. State, supra.

With regard to the statement given by the appellant, it is not necessary for us to determine whether the initial encounter of the appellant and the police was an accosting or an arrest or, if it were an arrest, whether there was probable cause therefor. The question of the legality of the arrest is immaterial as no “fruits” seized thereby were received into evidence. Crosby v. State, 2 Md. App. 578, Hutchinson v. State, 1 Md. App. 362. The “fruits” of an illegal arrest refer to tangible evidence seized. Walker v. State, 237 Md. 516. A statement or confession is not a “fruit” of the arrest in this context. Howard v. State, 1 Md. App. 379; Stackhouse v. State, 1 Md. App. 399. Wong Sun v. United States, 371 U. S. 471, stating the federal exclusionary rule that any evidence obtained as a result of an illegal arrest is tainted as the fruit of a poisonous tree, does not control prosecutions in the State courts. Dailey v. State, 239 Md. 596; Prescoe v. State, 231 Md. 486; State v. Hill, 2 Md. App. 594. In any event, although the registration card of the car driven by the appellant and displayed to the officer showed that the car was registered in the name of Janice Neilson, Officer Hall was aware prior to that time that Neilson had a car answering the description of the one seen by Thomas at the time of the fire and had gone to look for it. Also the name of the registered owner could have been readily traced by the police from the license tags. There is no merit in the contention that the appellant’s statement was rendered inadmissible because he was identified by the police at the time of his initial encounter with them or because the registration card linked Neilson to the appellant. Nor do we find merit in the allegation that the appellant’s statement “was coerced and illegally obtained otherwise through the medium of Neilson’s statement, which was obtained contrary to the requirements of Miranda.” Before he made his statement the appellant was confronted with Neilson’s ■statement. As to what effect confrontation with illegally seized ■evidence has on the admissibility of a confession is one of fact and not a matter of law. The Court of Appeals said in McChan v. State, 238 Md. 149, 159, cert. den. 384 U. S. 1021 (vacated as to one defendant on another point, 384 U. S. 893) :

“In Fahy v. Connecticut, 375 U. S. 85 (1963), where illegally obtained evidence was held to be prejudicial, the Supreme Court found that the accused should have had an opportunity to show that his admissions were induced by being confronted with illegally obtained evidence. Pahy, does not, however, compel the exclusion of a confession unless it appears that the accused was shown illegally seized evidence and that such confrontation did in fact induce the confession. Voluntariness, therefore, is still the crucial test for determining the admissibility of a confession.”

See Dailey v. State, supra, 600. Even on the assumption that Neilson’s statement was illegally obtained, there was no sufficient showing here that the confrontation did in fact induce the appellant’s statement, or that it was, in fact, not voluntarily made. We do not think that the trial court’s finding on the evidence as to the factual question of the effect of the confrontation of the appellant with Neilson’s statement was clearly erroneous. Md. Rule, 1086.

Ill

The appellant complains that he was denied the assistance of counsel. As we understand his first contention in this regard, he urges, on the premise that the stopping of the car driven by the appellant was an arrest, that he was then entitled to counsel. Accepting the premise, arguendo, that the appellant was then arrested, we know of no authority holding that the constitutional rights of a person are violated by the absence of counsel at his arrest. Cherrix v. Warden, 1 Md. App. 65. The appellant made no statement at that time offered in evidence against him and Miranda v. Arizona, supra, cited by the appellant, is not applicable. Crosby v. State, 2 Md. App. 578; Dixon v. State, 1 Md. App. 623. Nor is Escobedo v. Illinois, 378 U. S. 478, applicable. Reeves v. State, 3 Md. App. 195.

His second contention with respect to the assistance of counsel is that there was a failure “to timely appoint counsel at the preliminary hearing.” The contention is based upon the allegation that the preliminary hearing “inherently” was a critical stage of the proceedings against him. The contention was fully answered in Hannah v. State, 3 Md. App. 325 and in prior opinions of this Court. See Timbers v. State, 2 Md. App. 672; Crosby v. State, supra; Crumb v. State, 1 Md. App. 98. It appears that the appellant did not enter a plea at the preliminary hearing nor was anything that transpired there entered in evidence against him at his trial. Neither Pointer v. Texas, 380 U. S. 400, relied on by the appellant, nor White v. Maryland, 373 U. S. 59 is apposite.

The contentions as to the assistance of counsel are without merit.

Judgment affirmed.

      . The arson statute is thus distinguished from the statutes pertaining to robbery and robbery with a deadly weapon, Md. Code (1967 Repl. Vol.) Art. 27, §§ 486 and 488. Sections 486 and 488 do not define the crime of robbery but merely provide a statutory penalty for common law robbery and accessory before the fact to that crime and a statutory penalty more severe when the robbery or attempted robbery or accessory to robbery is committed with a dangerous or deadly weapon. Darby v. State, 3 Md. App. 407, 413. An accessory before the fact to robbery is not made a prinicpaí thereby nor is a person who attempts to rob with a deadly weapon or who is an accessory thereto. Agresti v. State, 2 Md. App. 278, 282. In Agresti, at 281-282, we said that at common law, an indictment must charge a person correctly as principal or accessory according to the facts and on an indictment charging a person as a principal there could be no conviction on evidence showing that he was merely an accessory and vice versa. And we noted that even if a statute makes an accessory before the fact a principal' and subject to punishment accordingly, unless the statute provides that an accessory before the fact may be charged or indicted as a principal, one who is an accessory cannot be convicted on an indictment charging him as a principal. Code, Art. 27, § 6 contains no reference to the manner of charging the offense.

      . It appears that 8th Street is also known as Laurel Grove Avenue. The dwelling was situated on a corner lot at the intersection of 8th Street and Route 198, also known as Talbott Avenue, the road alongside the house.

      . At an evidentiary hearing prior to trial the hearing judge also found that the statement had been voluntarily made.

      . William Neilson, Marcus Pressley and Paul David White were jointly indicted with the appellant. However the appellant was tried alone.

      . Although in his statement he denied knowing that his companions had “any gas,” discrepancies between a confession and testimony as to the circumstances of the crime go only to the weight of the evidence. Whitmer v. State, 1 Md. App. 127. The jury was under no obligation to believe the denial. See Sanders v. State, 2 Md. App. 484; Dunlap v. State, 1 Md. App. 444.

      . However during his testimony at the perliminary hearing he said that no charges were placed against him at that time, that the officers said nothing about placing him under arrest, and that he was, in fact, not placed under arrest.

      . Prior to the appellant’s trial there was an evidentiary hearing on a motion filed by Neilson to suppress the statement made by him. The hearing judge found that the Miranda safeguards had been observed and that the statement was freely and voluntarily made. The issue was also raised at the appellant’s trial and the trial court found that Neilson’s statement “complied with the provisions of the law.”

      . At a preliminary hearing at which the hearing judge found the appellant’s statement to have been voluntarily made, the appellant testified that the police asked him “ * * * would you like to make a statement, said Mr. Neilson had done made statements against me saying that I was involved in one arson charge.” He said the police showed him some papers, saying they were Neilson’s statement but he did not ask to read it. The appellant did not testify on the matter at the trial.


text:
    JOSEPH LEON MORRIS v. STATE OF MARYLAND
    [No. 312,
    September Term, 1967.]

      Decided June 7, 1968.

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

      Joel L. Levin for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylcm, Jr., State’s Attorney for Baltimore City, and Joseph C. Howard, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

On June 22, 1967, the appellant, Joseph Eeon Morris, was tried in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury, and convicted of assault upon William Marshall and of manslaughter for the killing of James William Johnson. On July 17, 1967, after denying a Motion for a New Trial, the appellant was sentenced to eight years imprisonment for the manslaughter conviction and four years imprisonment for the assault conviction, sentences to run concurrently.

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

From the evidence adduced below, the trial court could properly find that on September 10, 1966, at approximately 2:15 o’clock a.m., the appellant was involved with William Marshall in an altercation in the middle of the street, near Riggs and Calhoun Streets, in Baltimore, which, after some arguing and scuffling, culminated in the appellant striking Mr. Marshall on the side of his head with a gun which discharged killing a bystander, James William Johnson.

Two Baltimore City policemen, cruising in the area, heard the report of the gun and immediately responded to the scene. They observed the appellant, while walking from where the deceased lay, take a handkerchief from his pocket placing a black object therein, and deposit same in the gutter. The officers immediately retrieved the object and found it to be a .38 colt revolver.

Appellant testified that he struck Marshall in self-defense, was not aware that the gun was loaded, and that the gun was in a paper bag when he struck Marshall, he having never withdrawn the gun.

Marshall and witness Leroy Wilson testified that they did not observe a paper bag but saw the naked gun in the appellant’s hand.

The applicable test in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Speaks v. State, 3 Md. App. 371, 379, 239 A. 2d 600, 605 (1968); Anderson and Washington, Jr. v. State, 3 Md. App. 362, 369, 239 A. 2d 579, 583 (1968); Montague v. State, 3 Md. App. 66, 72, 237 A. 2d 816, 820 (1968). In non-jury trials the weight of the evidence and the credibility of the witnesses rests within the determination of the trial judge. McRae v. State, 3 Md. App. 388, 393, 239 A. 2d 607, 610 (1968). Anderson and Washington, Jr. v. State, supra, 369; Lucas v. State, 2 Md. App. 590, 593, 235 A. 2d 780, 782 (1968). Furthermore, in non-jury trials, the trial court in performing its duty of judging the credibility of witnesses may disbelieve the exculpatory statements made by the defendant. Anderson and Washington, Jr. v. State, supra, 369.

The thrust of the appellant’s argument is that since he was acting in self-defense with respect to Marshall, he could not, therefore, be held culpable for the killing of Johnson, since if Marshall had been killed instead, the resultant homicide would have been justified by application of the doctrine of self-defense. However, it is clear that the burden of proving self-defense rested upon the appellant. Davis v. State, 237 Md. 97, 103, 205 A. 2d 254 (1964). An assault predicated upon the doctrine of self-defense is justified only where the accused had reasonable grounds to believe, and did believe, that he was in apparent imminent peril of death or serious bodily harm from his actual or potential assailant. It is the task of the trier of facts to determine whether the accused was justified in meeting force with force. Upon finding such justification, the force used against the assailant must not have been unreasonable or excessive, that is, the defender must not have used more force than the exigency reasonably demanded. Tipton v. State, 1 Md. App. 556, 560, 232 A. 2d 289 (1967). While under a particular set of facts and circumstances a person may defend himself even to the extent of taking an aggressor’s life, it is patently clear that he cannot use more force than is necessary without leaving the sanctuary of self-defense. See Ware v. State, 3 Md. App. 62, 65, 237 A. 2d 526 (1968).

Appellant’s introduction of a loaded gun into this affray and the use of same to bludgeon into submission his victim, William Marshall, clearly constitutes an exercise of greater force than was justified under the circumstances. The lower court found no merit to his urging that his conduct constituted a proper exercise of self-defense, nor do we. Therefore, upon the instant record, it cannot be said that the lower court was clearly erroneous in finding the appellant guilty of assault upon Marshall. Maryland Rule 1086.

We now direct our attention to appellant’s manslaughter conviction. In McFadden v. State, 1 Md. App. 511, 517, 231 A. 2d 910 (1967), we quoted with approval from Neusbaum v. State, 156 Md. 149, 155, 143 Atl. 872, 875 (1928):

“Manslaughter has been defined to be ‘the unlawful and felonious killing of another, without malice aforethought, either express or implied, and is either voluntary or involuntary homicide, depending upon the fact whether there was an intention to kill or not.’ (1 Wharton Cr. Law, par. 421.)”

As was further stated by Judge Offutt in Neusbaum v. State, supra, 155:

“A felonious homicide is where one takes the life of another human being ‘purposely and without legal excuse, or without such excuse takes it unintentionally while needlessly doing anything in its nature dangerous to life, or who causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong.’ * *

Then in Allison v. State, 203 Md. 1, 5, 98 A. 2d 273 (1953), it was further observed that:

“Malice is, of course, an essential ingredient of murder, but even an unintentional killing may constitute the crime of manslaughter if it is due to a wanton and reckless disregard of human life. Cf. Hughes v. State, 198 Md. 424, 432, 84 A. 2d 419, 422, and Neusbaum v. State, 156 Md. 149, 155, 143 A. 872. See also Barbeau v. United States, 9 Cir., 193 F. 2d 945.”

The evidence adduced at the trial clearly established that the deceased was killed as a direct result of the appellant’s wanton and reckless use of a loaded gun in assaulting Marshall, thereby negligently causing the said gun to discharge with the bullet striking the deceased. Appellant’s responsibility for this criminal negligence can be readily evidenced and succinctly stated as:

“With few exceptions, an unintentional killing of a human being arising from a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty, is manslaughter. As the responsibility of the defendant is predicated upon negligence, the manslaughter should be classified as involuntary.” 1 Wharton’s Criminal haw (12th Ed.) § 292.

The death of the innocent bystander, James William Johnson, was in no way lessened by appellant’s protestation that the gun was unloaded and the act unintentional. These factors merely mitigate his degree of culpability in the eyes of the law relegating his wanton and recklessly negligent conduct, evidenced by the use of the loaded gun in the assault upon Marshall, to the-crime of involuntary manslaughter.

This Court cannot reverse a judgment of the lower court unless it is shown that there was no legally sufficient evidence, or proper inferences therefrom, from which that court could find the accused guilty beyond a reasonable doubt. Anderson and Washington, Jr. v. State, supra, 371. Such prerequisite showing was not established in this case and we cannot say that the judgment of the lower court was clearly erroneous. Maryland Rule 1086; Speaks v. State, supra, 379; Anderson and Washington, Jr. v. State, supra, 371; Lucas v. State, supra, 593.

Judgments affirmed.


author: Morton, J.,

text:
    CONNIE WILKINS, JR. v. STATE OF MARYLAND
    [No. 97,
    September Term, 1967.]

      Decided June 10, 1968.

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

      Sherman W. West for appellant.

      Alfred J. O’Perrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Howard S. Chasanow, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant, Connie Wilkins, Jr., was convicted of grand larceny by a jury in the Circuit Court for Prince George’s County and sentenced by Judge Perry G. Bowen, the presiding judge, to a term of ten years in the Maryland Penitentiary.

In this appeal, he raises five issues:

I. Did the lower court lack jurisdiction to try the Appellant since he was brought into the State for trial without the benefit of extradition proceedings ?

II. Was he denied his right to a speedy trial ?

III. Was it reversible error to permit amendment of the indictment, prior to trial, in order to show the true owner of the stolen goods ?

IV. Did the State fail to prove the value of the goods stolen ?

V. Did the State fail to prove that the Appellant was in possession of the stolen goods and, for this reason, was the verdict against the weight of the evidence and not supported by the evidence ?

The record indicates that on June 6, 1965, shortly after 11:00 P.M., William Dobbins, a checker for the Interstate Systems Company, Inc. observed three men in a panel truck parked in the company’s storage yard. Realizing that their presence was unauthorized, he drove out of the yard to report their presence to a police officer, and in doing so noticed that they drove out behind him. Almost immediately he encountered Officer Gross, a Prince George’s County Police Officer, and requested him to stop the panel truck. He then returned to the storage yard and found that the back of a trailer-truck, “had been cut off and whiskey had been taken from it.”

Officer Gross testified that he was in a cruise car when requested by Mr. Dobbins to stop the panel truck; that he observed it proceeding without lights and as he endeavored to overtake it, the right hand door opened and three shots were fired at him. He advised his dispatcher by radio what was happening and continued to pursue the truck which attained speeds varying between fifty and seventy-five miles per hour. As he got closer to the truck, again he was fired at from the passenger side of the truck. Shortly thereafter, the truck hit several road construction barriers, the engine hood flew up, the truck jumped the center strip and proceeded southbound in the northbound lane, struck a car and went over an embankment. The driver jumped out and ran. He was pursued and apprehended by Officer Gross. During the course of the chase, according to the officer, he was fired at some fifteen times.

Officer Fox testified that he heard over his cruise car radio Officer Gross’ call to the dispatcher; that he was in the area of the chase; that he saw the truck and heard the shots; that he immediately started pursuit and when the truck went over the embankment, he observed a heavy set male, whom he identified as the Appellant, jump from the right hand side and run. He gave chase, apprehended him and observed that he was injured about the head. The Appellant told the officer “he got hit by the truck.”

Another Officer who was driving a patrol wagon in the area arrived on the scene as the panel truck came to rest at the bottom of the embankment; saw three men “bail out of the truck”; watched them being chased by the other officers on the scene; and after they were apprehended he placed “all three,” including the Appellant, in the patrol wagon. The Officer identified photographs of the panel truck showing cases of whiskey and a sledge hammer in the rear interior, the windshield which was broken out, and several bullet holes in the rear door and fender.

The terminal manager took the stand and identified the five cartons of brand name whiskey found in the panel truck as the cartons which had been taken from the company’s trailer-truck and, over objection, was permitted to give the total value of the whiskey taken as being in excess of $200.

I.

The Appellant was brought into Maryland for the trial below from the District of Columbia Reformatory at Lorton, Virginia (where he was serving a five to fifteen year sentence) under a Writ of Habeas Corpus Ad Prosequendum. He contends that both Maryland and the District of Columbia had enacted the Uniform Criminal Extradition Act (Md. Code, Art. 40, Secs. 16-43) and under that Act “No one found in another State may be tried for a crime in Maryland unless he has been properly brought into the State by, or after waiver of, extradition.” This argument, however, overlooks Section 41 of the Act, which provides: '

“Nothing in this subtitle contained shall be deemed to constitute a waiver by this State of its right, power or privilege to try such demanded person for crime committed within this State, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose oí trial, sentence or punishment for any crime committed within this State, nor shall any proceedings had under this subtitle which result in, or fail to result in, extradition be deemed a waiver by this .State of any of its rights, privileges or jurisdiction in any way whatsoever.”

Moreover, under Section 4085 of Title 18, U. S. C. A., a federal prisoner may be transferred with the consent of the Attorney General of the United .States to a State court for trial of an offense against the laws of that state, which, apparently, was the procedure followed in this case. Even in the absence of statute, the Attorney General has the authority to transfer a federal prisoner, over his objection, to a State court for trial on a State indictment as a matter of comity between sovereigns. Ponzi v. Fessenden, 258 U. S. 254, 261. Thus, we find no merit in the Appellant’s contention that the lower court lacked jurisdiction to try him because he was not extradicted in accordance with the Uniform Criminal Extradition Act.

II.

Likewise, we find no merit in the Appellant’s contention that he was denied his right to a speedy trial. The record indicates that he was indicted on June 7, 1966. He was arraigned on January 9, 1967, and his trial took place on March 9, 1967. At his arraignment, the Appellant, pro se, orally raised the question of lack of a speedy trial for the first time. When the court denied his Motion to Dismiss the Indictment, without prejudice to his raising the issue of lack of a speedy trial after the appointment of counsel, the Appellant immediately requested the court to delay the trial of his case until his pending appeal of a criminal conviction in the District of Columbia had been decided by the appellate court. The lower court denied this request. After the appointment of counsel, lack of a speedy trial was never mentioned until the contention was raised in this appeal.

In Lawless v. State, 3 Md. App. 652, this Court held that even where the right to a speedy trial has accrued to an accused, he may waive it by failing to demand it, or, having demanded it, he may waive it by his conduct thereafter. Here, the Appellant waited until his arraignment on January 9, 1967, to raise the issue and when the issue was decided against him, he promptly requested that his trial be postponed. If it be assumed, arguendo, that the right to a speedy trial had accrued to the Appellant, it is clear that his conduct subsequent thereto constituted an effective waiver.

III.

We find no error by the lower court in permitting the State to amend the indictment, prior to trial, to show that the true owner of the goods stolen was Interstate Systems Co., Inc., rather than Robert J. Booth (its terminal manager) as originally alleged. In Corbin v. State, 237 Md. 486, the Court of Appeals approved a similar amendment in a case involving, as here, grand larceny, since “changing the name of the owner of the property constituting the subject matter of the crime charged was a change in form and not substance” and, therefore, it was authorized by Maryland Rule 714.

IV.

The Appellant properly asserts that to sustain a conviction of grand larceny, the State has the burden of showing that the goods which were the subject of the larceny had a market value of $100 or more. Mercer v. State, 237 Md. 479. He contends that the State failed to meet this burden because there was introduced no competent evidence to show the value of the stolen cartons of whiskey. We disagree.

Robert Booth, the terminal manager, testified that he had purchased whiskey “a good many times”;.that he was “familiar with the value of liquor”; and that he was “familiar with the prices” of the brand of whiskey which was the subject of the larceny. On the basis of this testimony, which was elicited both on direct examination and cross-examination by the defense, the lower court was of the opinion that he was qualified to testify that the total value of the stolen whiskey was $234.02. “Questions in regard to the qualifications of an alleged expert witness are largely in the discretion of the trial court, and the court’s determination of whether the witness is qualified will only be disturbed on appeal if there has been a clear showing of abuse of the trial court’s discretion.” M. A. Realty Co. v. State Roads Comm’n, 247 Md. 522; Sherrod v. State, 1 Md. App. 433, 438; 2 Wharton’s Criminal Evidence, Sec. 506 (12th ed.). We find no such showing of abuse of the lower court’s discretion and, accordingly, we find no merit in the Appellant’s contention that the value of the stolen goods was not established.

V.

The Appellant finally contends that the State failed to prove that he was in possession of the stolen goods and, accordingly, the verdict of the jury was against the weight of the evidence and not supported by the evidence. In a case tried by the lower court before a jury, this Court does not inquire into and measure the weight of the evidence. Our function in reviewing the evidence in a jury case is only to determine whether there is any relevant evidence which could properly sustain the conviction. In order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence, or inferences drawable therefrom, upon which the jury could find an accused guilty beyond a reasonable doubt. Hott v. State, 3 Md. App. 298, 304 and 308; Tillery v. State, 3 Md. App. 142; Willis v. State, 2 Md. App. 662, 664, 665.

It is apparent from the summary of facts set forth earlier in this opinion that the Appellant was positively identified as the individual who fled from the right hand side of the panel truck which was involved in the high speed chase from the scene of the larceny. There was evidence that fifteen shots were fired at one of the officers from the right hand side of the truck; and photographs were introduced showing the cartons of whiskey and a sledge hammer in the rear of the truck. Under the circumstances, we find no merit in the contention that the State failed to prove that the Appellant was in possession of stolen goods. Under the rule that exclusive possession of recently stolen goods, unexplained, gives rise to an inference that the possessor is the thief, the term “possession” does not necessarily require actual manual possession by the accused as long as he had a measure of control and dominion over the stolen goods. Gamble v. State, 2 Md. App. 271, 275. Nor does it mean that the possession cannot be shared with others. Bury v. State, 2 Md. App. 674, 677-678. We are of the opinion that there was ample evidence to sustain the jury’s verdict.

Judgment affirmed.

      . In Kelly v. State, 2 Md. App. 730, we held that Kelly, who was indicted at the same time as the Appellant for the same crime, was not denied a speedy trial, although his demand therefor was made in July 1966, (six months before the Appellant made his demand) and his trial did not take place until March 9, 1967.


text:
    JOHN FRANK WILLIAMS v. STATE OF MARYLAND
    [No. 317,
    September Term, 1967.]

      Decided June 10, 1968.

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

      Irving B. Klitzner for appellant.

      Bernard L. SUbert, 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.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty of breaking a warehouse with intent to steal goods of the value of $100 and upwards and peddling without a license at a court trial in the Criminal Court of Baltimore. He was sentenced to imprisonment for a term of 3 years on the warehouse breaking conviction. A fine of $25 imposed on the offense of peddling without a license was suspended.

There was evidence adduced at the trial that the warehouse of The Perfect Garment Co., Inc., a Maryland Corporation, was protected by “an ADT service” system whereby when the building was secured for the night an “all clear signal” was received if all doors and windows were securely locked and “the relay switch to the central office (of the protective service) * * * cleared.” The building was so secured and the switch cleared about 7:30 P.M. on 12 September 1967 when the general manager, charged with locking up the building, left the premises. About 12:30 A.M. the next morning he received a call from the protection service that a “disconnect signal” had been received. He went to the building and entered it with a police officer. A window in the shipping department on the third floor, which had been closed and locked when he left the building, had been forcibly opened. 'Skirts and women’s slacks, belonging to the corporation, of the value of approximately $400, were missing.

About 1:40 P.M. on 13 September two police officers, in uniform, saw the appellant and another youth, Darrell W. Fedd, standing on a sidewalk in the 1500 block of Ashland Avenue in Baltimore City. Fedd had two shopping bags and the appellant had one. The appellant was engaged in conversation with a woman “who was handling” a skirt. The officers accosted them and the woman said that she was going to buy the skirt. One of the officers, Frank Grunder, asked the appellant if he had a “Trader’s license” and the appellant said that he did not have one and did not know that he had to have one. He was arrested for selling on the street without a license. The shopping bag he was carrying was examined and found to contain a number of skirts. Fedd was also arrested and the bags he was carrying also contained skirts. The officers advised the appellant and Fedd of their “rights as to counsel, the right to remain silent, anything that they said could be used against them, the whole routine.” The appellant would not say where he got the skirts but Fedd said they had obtained them from a group of boys who were taking the garments out of a big brown packing box. The police went to the place where Fedd said they had obtained the garments but neither the boys nor the box was there. The skirts which had been in the possession of the appellant and Fedd were identified as the property of The Perfect Garment Co., Inc. and as a part of the goods taken from its warehouse. Fedd told the officers where the rest of the goods was located and it was seized under the authority of a search warrant. No evidence was proffered in behalf of the appellant.

The appellant contends that his arrest was illegal and that the goods seized from him incident to the arrest were improperly admitted in evidence. It is settled law that an officer may arrest without a warrant for any misdemeanor committed or being committed in his presence by the arrestee. Shelton v. State, 3 Md. App. 394, 398; Scott v. State, 1 Md. App. 481, 492. The question is whether, in the circumstances of the instant case, a misdemeanor was committed or was being committed in the officer’s presence. Md. Code (1968 Replacement Volume), Art. 56, §21, title “Licenses,” sub-title “Hawkers and Peddlers,” provides in relevant part:

“No hawker or peddler shall * * * offer to trade, barter or sell within the State any goods * * * until he shall have first taken out a license for that purpose.”

A foot peddler shall have the license in his possession at all times “and display the same upon demand of any uniformed officer of the law,” § 23. Any hawker or peddler found “buying, trading, bartering or selling, or offering to buy, trade, barter or sell any goods, wares or merchandise without having his license with him at the time, or who shall refuse on the request of any sheriff or constable to show his license, shall be considered as selling without a license,” § 27. The penalty for committing the offense is a fine not exceeding $100 nor less than $25, to be recovered as other fines are recovered, § 26. Md. Code (1965 Repl. Vol.), Art. 38, § 1, provides inter alia: See also Md. Code (1968 Repl. Vol.), Art. 52, § 13a. Peddling without a license is, therefore, a criminal offense. Not being a felony at common law and not so declared by statute, the offense is a misdemeanor. Fabian v. State, 3 Md. App. 270, 282. We think the misdemeanor was committed in the presence of the arresting officer. When the officer first approached, the appellant was engaged in conversation with a woman who had a skirt in her hands. “She gave it back to Mr. Williams, and Mr. Williams gave it back to her.” The officer asked them what was going on and the woman said that she was going to buy the garment from the appellant. Upon being asked if he had a license, the appellant said that he did not. See Morgan v. State, 2 Md. App. 440; David v. State, 1 Md. App. 666. We feel that it is clear that the officer had reason to believe that the appellant was a “foot peddler,” that he was offering to barter or sell goods and that he did not have a license with him at the time. Thus, within the senses of the officer, a misdemeanor was committed in his presence and the arrest of the appellant was lawful. The arrest being lawful, the officer had the right to conduct a contemporaneous search incident thereto, both of the person of the arrestee, and of the property under his immediate control. Shelton v. State, supra, at 398. The search being valid, the articles seized were properly admitted in evidence. Dixon v. State, 1 Md. App. 623, 626.

“When any fine or penalty is imposed by any act of Assembly of this State * * * for the doing of any act forbidden to be done by such act * * * or for omitting to do any act required to be done by such act * * *, the doing of such act or the omission to do such act shall be deemed a criminal offense; such offense in the City of Baltimore shall be prosecuted by the arrest of the offender for such offense and by holding him to appear in or committing him for trial in the Criminal Court of Baltimore, which said court shall have jurisdiction in the said cases and shall proceed to try or dispose of the same in the same manner as other criminal cases may be tried or proceeded with or disposed of, or such offenses may be prosecuted by indictment in such court; * *

The appellant also contends that the evidence was not sufficient to sustain the convictions. With regard to the offense of breaking the warehouse with intent to steal goods of the value of $100 and upwards, the corpus delicti was proved. The criminal agency of the appellant was shown by his unexplained possession of the recently stolen goods. Chittum v. State, 1 Md. App. 205, 209. The trial judge was under no obligation to believe the explanations Fedd made to the officer. With regard to the offense of peddling without a license, the appellant admitted to the officer that he had no license. We cannot say that the trial judge was clearly erroneous in finding that the appellant was offering to barter or sell goods without a license on the evidence before him. Md. Rule, 1086; Trout v. State, 3 Md. App. 259, 262.

Judgments affirmed.

      . However by Md. Code (1966 Repl. Vol.), Art. 36, § 113 in all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the judges of the Municipal Court may, in lieu of the minimum penalty so prescribed, impose a lesser penalty of the same character.

      . The Municipal Court of Baltimore City, by Chapter 644, Acts 1965, codified as Md. Code (1966 Repl. Vol.), Art. 26, § 109 (a) (75) has original and exclusive jurisdiction over offenses under Art. 56, sections 21, 22 and 23 (hawkers and peddlers) except as set forth in § 109 (c) (l)-(5). In the instant case the Municipal Court of Baltimore City waived jurisdiction to the Criminal Court of Baltimore pursuant to § 109 (c) (4).

      . By Code, supra, Art. 56, § 33, as hereinbefore noted, a “foot peddler” must have the license in his possession at all times and display it “upon demand of any uniformed officer of the law.”

      . Hawkers and peddlers are those “who go about seeking sales and deliveries of articles to possible customers. Moving or itinerant trading, sales negotiated along the way, with simultaneous deliveries, are essentials. The mode of travel is not important.” Brown v. State, 177 Md. 321, 325-326. It is clearly stated in Brown that the statute makes it unlawful and punishable to trade, barter or sell, or to offer to trade, barter or sell without a license.

      . We think it clear that the officer had the power to arrest for this offense committed in his presence. In addition to the general power to arrest, Code, supra, Art. 38, § 1 provides that such an offense in the City of Baltimore shall be prosecuted by the arrest of the offender. Code, supra, Art. 56, § 35, provides that a hawker or peddler committing the offense may be apprehended by any sheriff or constable within their respective bailiwicks, and it shall be their duty to apprehend him. See also Md. Code (1966 Repl. Vol.), Art. 20, § 22. Laws of The State of Maryland, 1966, Chapter 303, § 538a provides that all police officers of the Police Department of Baltimore City shall be peace officers and shall have the same powers, with respect to criminal matters, and the enforce-merit of laws related thereto, as sheriffs, constables, police and peace officers possessed at common law and have in their respective jurisdictions.

      . The appellant complains that the testimony with respect to the woman saying she was going to buy the skirt was hearsay. We think it was part of the transaction and admissible as res gestae. “The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character.” Van v. State, 1 Md. App. 347, 352, quoting from Wilson v. State, 181 Md. 1, 3-4. See Frey v. State, 3 Md. App. 38. The appellant also urges that he did not have to say anything when the woman made the statement and no inferences against him can be drawn therefrom. If a statement is made by another person in the presence of the defendant, then not in custody, containing assertions of fact which, if true, the defendant would under all circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believed the statement to be true, and his conduct is thus receivable against him as an admission of such belief. Barnes and Burgess v. State, 1 Md. App. 123, 125. The appellant was not in custody when the statement was made.


text:
    WILLIE JORDAN v. STATE OF MARYLAND
    [No. 341,
    September Term, 1967.]

      Decided June 10, 1968.

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

      Gerald A. Smith, with whom was John R. Hargrove on the brief, for appellant.

      Alfred J. O’P err all, III, Assistant Attorney General, with whom were Prancis B. Burch, Attorney General, Charles p. Moylan, Jr., State’s Attorney for Baltimore City, and Joseph

      Raymond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Appellant was convicted by the court sitting without a jury of robbery with a deadly weapon and sentenced to ten years under the jurisdiction of the Department of Correction. He contends on this appeal that the trial court committed reversible error when it admitted certain money into evidence without it having been properly identified as the property of the victim.

There was evidence showing that appellant and a confederate robbed Albert Wright, a cab driver, of $50.00, consisting of three five dollar bills, five one’s, two ten’s, and $10.00 in silver ; that the robbers fled when the police suddenly arrived on the scene; that the officers, armed with the description of the robbers, searched the area in which they had fled; that they found the appellant approximately thirty minutes after the robbery, four blocks from the crime scene, hiding beneath a truck; that a search of his person uncovered $21.75, consisting of three five dollar bills, five one dollar bills, $1.75 in coin; and that the three five’s and five one’s had been secreted in appellant’s left sock at the time of his arrest.

Appellant’s contention is that there was no evidence to show that the money found on appellant at the time of his arrest, and introduced in evidence at the trial, was the same money as that taken from the robbery victim. We see no merit in this argument. It is elementary that evidence need not be positively connected with the accused or the crime committed in order to render it admissible; it is admissible where there is a probability of its connection with the accused or the crime, the lack of positive identification affecting the weight of the evidence, rather than its admissibility. Daniels v. State, 213 Md. 90; Woodell v. State, 2 Md. App. 433. We think that the evidence in this case is such as to indicate a probability that the money in question taken from appellant at the time of his arrest was part of the same money taken from the robbery victim. As indicated, appellant was identified as the robber by the victim, he was found hiding in close proximity to the scene of the crime shortly after its commission, and the money, secreted in his sock, was similar in denomination to that taken from the victim. In 1 Wharton’s Criminal Evidence, 12th Ed., § 204, it is stated:

“When money is found in the possession of the defendant, it is generally held that it is unnecessary to identify the bills of money as having been the bills which had formerly been in the possession of the victim of the crime, or to trace the source of such money.
“It has also been held that the corpus delicti must be first established before it can be shown that the defendant has money or property in his possession which it is claimed was obtained from the commission of the crime.
“It is relevant to show the manner in which the defendant kept or spent the money or property, as the inference of guilt may increase with proof that the money or property was secretively kept.”

In light of the above, we find no error in the court’s admission of the money into evidence.

Judgment affirmed.


text:
    WILBERT MORGAN, JR. v. STATE OF MARYLAND
    [No. 342,
    September Term, 1967.]

      Decided June 10, 1968.

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

      Gilbert A. Hoffman 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 Barry Frame, Assistant State’s Attorney for Baltimore City, on the brief, for ■appellee.
   Per Curiam.

Appellant was convicted by the court sitting without a jury of committing an assault with intent to murder Walter Dry and with assault upon Helen Dry, and sentenced to' consecutive terms of ten years and four years on the respective charges. He •contends on this appeal that the evidence was insufficient to support the conviction of assault with intent to murder, and that the fourteen-year sentence imposed upon him was cruel and unusual in the constitutional sense.

There was evidence showing that on May 1, 1967, appellant approached Walter Dry on the steps of the Dry home; that appellant was in a belligerent mood and brandished a pistol at Dry; that Mrs. Dry grabbed the gun away from appellant, after which Walter Dry chased appellant down the street; that appellant returned shortly thereafter with a pipe or stick in his hand, and told Walter Dry that he was going to hit him with it, but was again chased away; that appellant again returned to the Dry home with two companions and when Walter Dry opened the door, appellant fired three or four times at him; that although Walter Dry was only six or seven feet away from the appellant, he was not struck by any of the bullets; that appellant then left after the shooting, but returned with his companions after Walter Dry had left the house, at which time he struck Helen Dry, causing her to be hospitalized.

Appellant’s contention that the evidence was insufficient to support his conviction of assault with intent to murder is based on the premise that in firing the bullets at Walter Dry, he was only trying to scare him; and that proof thereof is readily found in the fact that the prosecuting witness was not struck by any of the bullets. We see no merit in this contention. The essence of the offense of assault with intent to murder is intent, so that if the intent is carried out, the resulting crime would be either first or second degree murder, had the victim died. Tate v. State, 236 Md. 312. A specific intent to murder is not, however, necessary to sustain a conviction, it being sufficient if there was an intention to commit grievous bodily harm. McFadden v. State, 2 Md. App. 725; Lawrence v. State, 2 Md. App. 736. As the trier of fact was under no obligation to believe appellant’s explanation of the incident, and as there was evidence from which the fact-finder could properly conclude that there was an intent to murder or to commit grievous bodily harm, we cannot say that the trier of fact was clearly in error under Maryland Rule 1086 in finding appellant guilty of the offense.

Nor do we find that the fourteen-year sentence imposed upon appellant was cruel and unusual. See Washington v. State, 2 Md. App. 633, and Fisher v. State, 1 Md. App. 505.

Judgments affirmed.


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    FRANCISCO OTERO QUILES v. STATE OF MARYLAND
    [No. 348,
    September Term, 1967.]

      Decided June 10, 1968.

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

      Martin Moncars for appellant.

      Edward E. Borgerding, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald Needle, Assistant Attorney General, and /. Thomas Clark, State’s Attorney for Queen Anne’s County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty of assault by a jury in the ‘Circuit Court for Queen Anne’s County and sentenced to im;prisonment for a term of 8 years.

It appeared that the appellant, who was indigent, spoke Spanish but did not speak or understand English and his re- • quest, made through an interpreter, that an attorney fluent in Spanish be appointed to represent him was granted. Prior to 'trial, his counsel, who maintained a law office in Baltimore City and did not reside or usually practice in Queen Anne’s County, asked the State’s Attorney to bring to the attention of the 'trial court that the appellant desired that a “local” attorney be appointed to assist in the selection of a jury. Counsel was informed the request was denied and subsequently made a motion in open court requesting the appointment of additional counsel to assist in the selection of a jury which was denied. In denying the request the court stated that it was willing to appoint additional counsel but would allow only one fee to be paid by the State for the total representation. The court felt, considering that defense counsel spoke .Spanish, that he would be able to examine prospective jurors on the voir dire and that an interpreter had been appointed for the trial, that counsel could provide the appellant with effective representation without the appointment of additional counsel. The appellant contends on appeal from the judgment that the denial of the motion denied him due process of law and the effective assistance of counsel. The crux of the contention is that his constitutional rights were violated by the circumstance, per se, that his trial, being held in a community where the prospective jurors were unknown to him and his counsel, placed him at a disadvantage in the selection of a jury, especially when the prosecuting attorney may have knowledge of the prospective jurors. We do not agree. The appellant had competent counsel appointed to represent him. The purpose of the voir dire examination is to ascertain whether prospective jurors are free from bias and prejudice and capable of making impartial and objective determinations. Baker v. State, 3 Md. App. 251; McIntyre and Davis v. State, 1 Md. App. 586; Borman v. State, 1 Md. App. 276. Thus the appellant, represented as he was by competent counsel, had the means to assure compliance with his right, guaranteed by the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights, that he be tried by an impartial jury. The burden is on a defendant to show that a jury hearing his cause was not impartial. Jones v. State, 2 Md. App. 429. We do not think that this burden was carried by the appellant merely by the circumstance that the State’s Attorney may have been more familiar with the prospective jurors than the appellant and his counsel. On the reason advanced by the appellant, he was not constitutionally entitled to the appointment of additional counsel to assist in the selection of the jury and we find no error in the denial of the motion. Further, we find no denial of his constitutional rights in the selection of the jury. The record does not disclose any showing that the jury which tried the cause was other than impartial and the appellant made no allegation below that it was not impartial nor does he make such an allegation on appeal, merely asserting baldly that local counsel to assist him in their selection “would surely have made a difference in the outcome of the litigation.” Counsel for the appellant engaged extensively in the examination of prospective jurors on the voir dire and made no objection to the jury as finally selected and empanelled. We feel that the jury which tried the appellant was composed of competent jurors who exercised their judgment with perfect freedom from improper influences. See Wilson v. State, 4 Md. App. 192. Therefore, we cannot conclude that the appellant was not afforded effective representation in its selection, that he was prejudiced thereby, or that his constitutional rights with respect thereto were in any way denied.

After his arrest the appellant gave the police a statement, through an interpreter, which was reduced to writing. A photostatic copy of the statement was given to defense counsel in advance of trial. The .State did not offer the statement at the trial but as part of his case the appellant elicited testimony that a statement had been made to the police and offered it in evidence. Objection to its admission was sustained. The appellant contends that the refusal of the lower court to admit the statement was prejudicial error.

Hearsay evidence is defined as “testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Frey v. State, 3 Md. App. 38, 48, quoting McCormick, Evidence (1 Ed. 1954) § 225, p. 460. The statement given by the appellant clearly constituted hearsay evidence, and, unless it was admissible under one of the exceptions to the hearsay rule, it was properly excluded by the trial court, The appellant urges that the statement comes under the res gestae exception to the hearsay rule. The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Wilson v. State, 181 Md. 1; Van v. State, 1 Md. App. 347. We said in Reckard v. State, 2 Md. App. 312, 317:

“The point is not so much the lapse of time or change of place as the continuance of a situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an independent, preconceived action of the speaker’s will.”

In the instant case the appellant hid in the brush for some two hours after the commission of the crime and after he was arrested the statement was not given until a police officer with knowledge of Spanish was brought from Baltimore. We feel that the statement was not a “spontaneous reaction” to the occurrence of the crime and was not part of the res gestae.

The appellant next alleges that the statement contained exculpatory as well as inculpatory admissions and therefore was an admission as distinguished from a confession or at least in part a confession and in part an admission. He cites Gray v. State, 181 Md. 439 as authority that a written confession is in fact the best evidence of what it contained and Williams v. State, 205 Md. 470 as authority that all of a statement, a part of which constitutes an admission, is admissible in evidence, the exculpatory as well as the inculpatory. But we think it immaterial here whether the statement of the appellant be considered a confession or an admission for the question is not whether the statement was admissible against the appellant on proffer by the State but whether it was admissible for the appellant on proffer by him. In both Gray and Williams the admissibility of the statement was within the frame of reference of a proffer by the State. We think it clear that a statement of an accused, be it a confession or admission, inculpatory or exculpatory, freely and voluntarily made under the procedural safeguards of Miranda v. Arizona, 384 U. S. 436, when that case is applicable, is proper evidence on introduction by the prosecution and is not rendered inadmissible by reason of the hearsay rule. It was said in Maurice v. Worden, 54 Md. 233, 257:

“The admissions of a party, freely and voluntarily made, are always evidence, which may be introduced by the opposite party.” (emphasis added).

In IV Wigmore, Evidence (3rd Ed.), § 1048, the rule is stated: “The statements made out of court by a party-opponent are universally deemed admissible when offered against him.” And in McCormick, Handbook of the Law of Evidence (1954), § 239, p. 502, it is said, “Admissions are the words or acts of a party-opponent * * * offered as evidence against him.” See Hochheimer, Criminal Law (1st Ed.), §§ 281-283. Wigmore states the justification for the rule in § 1048:

“But if it is Smith himself who said out of court, T borrowed this fifty dollars’, certainly .Smith cannot complain of lack of opportunity to cross-examine himself before his assertion is admitted against him. Such a request would be absurd. Hence the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz. the need and prudence of affording an opportunity of cross-examination * * * The Hearsay rule, therefore, is not a ground of objection when an apponent’s assertions are offered against him; in such case, his assertions are termed Admissions. But the Hearsay rule is a ground of objections by the first party when the opponent’s assertions are offered in his favor; and such statements are then not termed ‘admissions’ (emphasis added).

It is this reasoning as to the opportunity of cross-examination that answers the appellant’s argument that if the statement were admissible when offered by the prosecution it should be admissible when offered by him. While a defendant cannot be compelled to testify he cannot preclude the State from its right to cross-examine him with respect to statements made by him not offered by the State by offering the statements by the testimony of a third party or by the written document. Nor does the allegation, as made by the appellant, that the State may not complain that it did not have the opportunity to cross-examine the appellant because the police could have done so when it obtained the statement, justify its admission. We think it inherent in the right of cross-examination, in this context, that it be conducted at a judicial proceeding with the one examined under oath. It may have been better for the lower court to have admitted the written statement once it had admitted oral testimony, as part of the appellant’s case, as to “any conversation” with the appellant, which testimony gave the substance of the statement. But it does not appear that the appellant at that time again proffered the written statement. We note also that the appellant testified, through an interpreter, in his own behalf. He identified the signature on the written statement as his signature. His testimony with regard to the crime was substantially the same as appeared in the written statement — that he did not have the money to pay the cab fare, that the driver accused him of taking $32, an argument ensued, the driver hit him on the head with a bottle and “I went for my knife and I cut him” — and, on further examination by his counsel, went into much greater detail concerning the incident than appeared in the written statement. We find no error in the refusal of the lower court to admit the written statement when it was proffered and no prejudice to the appellant, requiring reversal, in its exclusion.

Judgment affirmed.

      . We think it clear from the record that counsel capably and vigorously represented the appellant’s interests throughout the trial.

      . It appears that counsel for the appellant examined at length approximately 30 prospective jurors on the voir dire and challenged about 17.

      . However, the lower court permitted, over objection by the State, testimony as to the substance of the statement.

      . The police asked the appellant to tell in his own words what happened. The account of the appellant, as it appeared in the statement was:
      “Yes, I have been lost for seven days and I asked the taxi driver in Baltimore to take me to Chestertown. He said it would cost $40.00. We left Baltimore and I had only $5.77 in my pockets. I paid the dollar at the Chesapeake Bay Bridge Toll gate. When we got somewhere nearby, the driver asked me for the money. I told him I did not have the money, however, if he would take me to my brothers, he would be paid. The taxi driver then wanted to put me out of the taxi. I did not want to be left there, because I would be lost again. We became involved in an altercation and the driver struck me on the head with a bottle. I then stabbed him in his side and he took the knife from me and then ran away.”
      He denied taking any money from the cab driver. When the driver was brought to the Kent-Queen Anne County General Hospital shortly after the incident he was bleeding from wounds in his right chest and right arm. The chest wound was about 4 inches from the heart. He was in shock when admitted to the hospital and the treating physician testified that “if he had continued active, I believe this would have aggravated the bleeding within the chest cavity and this again would have contributed to the shock and potential death of the patient.”

      . The exception to the requirement that a defendant has the right to be confronted by the witnesses against him is in accord with this rationale. The exception arises when a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. Barber v. Page, 389 U. S. 910; Lindsay v. State, 2 Md. App. 330; Britton v. State, 2 Md. App. 285.

      . The testimony of the witness as to what the appellant said with regard to the altercation and stabbing was verbatim with the statement. The appellant was allowed to examine the witness as an adverse witness.


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    JAMES VERLIE ROGERS a/k/a VERLIE J. RODGERS v. STATE OF MARYLAND
    [No. 300,
    September Term, 1967.]

      Decided June 11, 1968.

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

      Richard K. Jacobsen, with whom was A. Parks Rasin, Jr., on the brief, for appellant.

      H. Rdgar Lents, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William Parsons Fennell, State’s Attorney for Kent County, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty at a court trial in the Circuit Court for Kent County of assault and battery and sentenced to imprisonment for a term of three years. His only contention on appeal is that the sentence imposed was cruel and unusual in the constitutional sense. The contention was fully answered in Washington v. State, 2 Md. App. 633, where we said, at 634-635:

“It is well settled that imposition of sentence in a criminal case in this State is a matter peculiarly within the province of the trial judge, Reid v. State, 200 Md. 89, Gee v. State, 2 Md. App. 61; and that a sentence will be reviewed on appeal only where grossly and inordinately disproportionate to the offense to such an extent that the sentence was evidently dictated not by a sense of public duty, but by passion, prejudice, ill will, or other unworthy motive. James v. State, 242 Md. 424, Fisher v. State, 1 Md. App. 505. Assault and battery is a common law crime, for which no statutory limit governing punishment is prescribed, Miller v. State, 1 Md. App. 653. A twenty-year sentence has been held not cruel and unusual in Roberts v. Warden, 242 Md. 459 and Adair v. State, 231 Md. 255. Similarly, a ten-year sentence was held not violative of constitutional protections against cruel and unusual punishment in Austin v. Director, 237 Md. 314 and Gleaton v. State, 235 Md. 271.”

The appellant argues that all he did was engage a young lady in conversation on a main street in Chestertown about 6:15 P.M. on a summer evening, walk her home with her dog, and kiss her on the cheek. But the evidence was clear that an assault and battery was committed by the appellant and was sufficient for the trial court to find that his actions were not as harmless as he would now have them appear. The young lady, 20 years of age and married, was walking her dog about 6:15 P.M. when the appellant stopped her. “At first I didn’t think anything about it, but as he got closer to me I could tell he was quite intoxicated, and he kept telling about his work experiences and everything, and he kept petting the dog and rolling him down on the pavement, and he just wouldn’t let me go, kept talking to me and things like that, and finally he got the dog away from me and said he wanted to walk home. * * * He was asking questions about where I worked and where my husband worked and what time he got home, and things like that and, well, he was wanting to take the dog down to the river too because he said he had three Labradors of his own and they needed a lot of water, and he kept wanting to know what time my husband got home from work. Well, at that time my husband was working the night shift. He works out at Eastern Business Forms, and he wanted to know where I lived, and I. wouldn’t say where, so when he got the dog away from me he walked me home. * * * He took him by the leash and I tried to get him a couple of times but he just wouldn’t let me have him, and when we got home he insisted that I chain him up to the dog house, and when we got half way to the house, he asked for a dollar and, as I said before, I would have given him a thousand dollars if I had had it. * * * Because I was. petrified. 1 was just scared to death, and then just as we were standing on the back porch of my house he grabbed hold of me and said, “Now how about giving me a big kiss,” and he grabbed me and kissed me on the cheek.” She said that even with people on the street she was scared. “[H]ow was I supposed to know what he was going to do? He was very intoxicated and 1 am an epileptic so I couldn’t let myself go too far.” She had never seen him before. The appellant testified that he had come into town that morning. “I had looked around, messed around and done a little shopping and also I done a little drinking too.” Pie remembered seeing the young lady with the dog, talking to her and walking with her but did not recall kissing her. After finding the appellant guilty the court reviewed a presentence investigation of the appellant. It said in imposing sentence, “[T]he Court has had the opportunity to review the pre-sentence investigation submitted to it through the State’s Attorney by the parole officer, and notes the total of nineteen incidents of one type or another wherein you have been involved with the law. Having duly considered the evidence in the case, the nature of the assault, your previous record as submitted, it is the judgment and sentence of the Court that you be committed to the custody of the Commissioner of Correction for the period of three years from this date.”

We cannot find in the record before us that the sentence was grossly and inordinately disproportionate to the offense to such an extent that it was dictated, not by a sense of public duty, ■but by passion, prejudice, ill will or unworthy motive. We hold that the sentence does not violate either the State or Federal Constitutions.

Judgment affirmed.

      . The appellant first tendered a plea of nolo contendere. After hearing evidence the court refused to accept the plea and the appellant entered a plea of not guilty. The judge who heard the evidence on the plea of nolo contendere and refused to accept that plea entered a notice of disqualification and trial on the merits was had before another judge.


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    ROBERT R. KARES v. STATE OF MARYLAND
    [No. 368,
    September Term, 1967.]

      Decided June 11, 1968.

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

      Gordon H. Levy for appellant.

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

The appellant Kares was convicted by Judge William J. O’Donnell, sitting without a jury, of daytime housebreaking and larceny of goods of the value of $100.00 or more. He contends on this appeal that his motion for a continuance was improperly denied and that the State did not meet its burden of proving the value of the goods stolen.

Kares broke into the locked apartment of Gerhardt Gibbons and stole a Polaroid camera, model 104, its case, flash attachment and timer, a Sony transister TV and an AM and FM Delmonico clock radio. Gibbons put a value on each item, the total being $223.35, and gave the dates of purchase, which were fairly recent. His testimony came in without objection. King, the manager of the apartment house, after hearing strange noises upstairs, had seen Kares come down the steps of the building, carrying the stolen articles in a box and, knowing he was not a tenant or regular visitor, intercepted him and, after a struggle, held him. Kares put down the box and broke away. King caught him and again held him until the police arrived on the scene.

The State did not list King’s name on the information as Maryland Rule 717 requires and, on the morning of trial, Kare’s counsel moved for a continuance. Under questioning by the court, counsel said he had not availed himself of Rule 728 a 3 to require the furnishing of “a list of the names and addresses of the witnesses whom the State intends to call to prove its case in chief.” Further, it was revealed that the State had told him the name of King (who was no stranger to Kares) and the substance of his testimony several days earlier. We find no abuse of discretion in the refusal of a continuance.

At the trial the only points made or decided were the matter of the continuance and the question of whether the arrest was illegal. The defendant argued it was illegal in an effort to keep out the stolen articles he claimed were the fruits of that arrest. Judge O’Donnell held that the arrest was legal and that the box of stolen articles had been abandoned. No challenge is made here to the correctness of these findings. The only challenge on the merits is as to the implicit finding below that the goods stolen were worth $100.00 or more. As we have noted, there was no objection to their owner testifying, after refreshing his recollection of their purchase prices, that their value was what they had cost. The owner’s appraisal had probative force, Cofflin v. State, 230 Md. 139, and the trier of fact could, aided by the relatively recent purchase prices, estimate the value of these ordinary articles, each of which had been precisely described without the help of expert testimony. Shipley v. State, 220 Md. 463.

Judgments affirmed.