author: Orth, J.,

text:
    MAURICE CLAYVONE STEVENSON AND ERNEST SPENCER BORUM v. STATE OF MARYLAND
    [No. 242,
    September Term, 1967.]

      Decided April 22, 1968.

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

      James R. Miller for appellants.

      Bernard J,. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and Barry H. Helfand, Assistant State’s Attorney for MontgomeryCotmiy, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellants were arrested in the District of Columbia in 1965, Stevenson on 3 July and Borum on 6 or 7 July. They were-incarcerated in the District of Columbia jail, tried and convicted of the offenses with which they were charged and sentenced to imprisonment. Both were transferred to the District of Columbia Reformatory at Lorton, Virginia in 1966, Stevenson on 3 March and Borum on 14 October and both are incarcerated there at this time.

On 14 September 1965 the appellants were jointly charged under four indictments returned by the grand jury of Montgomery County. Indictment No. 7172 charged rape, assault with intent to rape and assault and battery. Indictment No. 7173 charged robbery with a deadly weapon, attempted robbery with -a deadly weapon, robbery and assault with intent to rob. Indictment No. 7174 charged the breaking of a dwelling in the daytime with intent to steal, larceny and receiving stolen goods. Indictment No. 7175 charged another offense of breaking a dwelling house with intent to steal. The only other entry on the dockets states, in each case: that a motion to stet the indictment was granted on 28 October 1965, and although the docket entries do not show the reason therefor, it apparently was because of the ruling in Schowgurow v. State, 240 Md. 121. Indictments Nos. 7367, 7366, 7368, and 7365 charging the same offenses respectively as the prior indictments were thereafter returned on 15 November 1965 and are now pending. The docket entries as to each of the indictments returned on 15 November show under date of 19 September 1966: “Copy of Ind. mailed to deft. E. S. B.” As subsequent docket entries refer to the appellants by their initials, we take this to mean the appellant Borum. The entries on the docket for each pend:ing indictment further show in relevant part :

“March 14, 1967 — Deft. M.C.S. motion for withdrawal of detainers fd. in No. 7365 Crim.
May 17, 1967 — Order of Court appointing attorney for Deft. M.C.S. & E.S.B., fd.
June 14, 1967 — Deft.’s motion to dismiss, fd.
August 14, 1967 — Petitions and order of Court granting writ of Habeas Corpus Prosequendum and writ, fd. in No. 7365 Crim.
August 28, 1967- — -Hearing on Deft’s. M.S.C. and E.S.B.’s motion to dismiss before Judge Pugh, Miss Wissenbach rept. and motion continued.”

The dockets indicate that the hearing was resumed on 30 August and the motion was granted as to the second count of indictment No. 7366 and denied as to all other counts in all the indictments. The docket with respect to indictment No. 7365 contains one additional entry: “August 15, 1967 — Writ issued ret: Aug. 25,1967, 10:00 A. M.”

Each appellant testified in support of his motion to dismiss the indictments. Borum said that he “surrendered to the District of Columbia police July the 7th — July the 6th — ’65.” He was in the city jail in Washington until 14 October 1965 when he was transferred to Lorton and at the time of the hearing was incarcerated there under sentence. He never received notification of the charges lodged in Montgomery County but about a month after he was placed in the District of Columbia jail he “received a small piece of paper by a tier runner * * * That’s a guy that runs up and down and brings you soap and stuff.” The paper contained information that a “detainer had been placed against my record for the charge of rape. And that was all.” He denied receiving copies of the indictments pending against him or of the indictments which were stetted. The first time he saw any indictments was on 16 May 1967 when his counsel showed him the pending indictments. He had never seen any bench warrants that were issued for his arrest. He knew what a bench warrant looked like and the small piece of paper delivered by the tier runner was not a bench warrant. It was a “standard form” with the word “rape” typed in and a “Mr. Thrailkill’s name typed into it.” About September (the year is not specified but apparently it was 1965) a friend brought a newspaper article to him in his cell in which his name and that of Stevenson appeared as having been indicted for rape in Montgomery County. It gave “no specific dates or circumstances nor anything.” He knew nothing about being re-indicted. He never had an attorney to represent him in the Maryland proceedings until 8 February 1967 in the habeas corpus matter (the same attorney was appointed for him in the pending cases on 17 May 1967) and was not financially able to employ one. He had mailed a petition for a writ of habeas corpus in proper person in October 1966 and Stevenson mailed one in January 1967. With regard to the charges in Maryland he had never been arraigned, never had a preliminary hearing or any hearing other than on the petition for a writ of habeas corpus. He alleged that he was prejudiced by the fact of the detainers being lodged against him at Lorton as they resulted in his being placed in “maximum security. This stops any parole proceeding and work release proceeding or any outside activity that Norton sponsors in the jurisdiction there * * * It also hindered me from going on bond, making bond in that jurisdiction, because if you’ve got a detainer against you you can’t make a bond there because the detainer is outstanding against you.” 'On cross-examination he stated that when he had received the paper from the tier runner he wrote three or four letters. Two ■of them came back. “The first time I mailed it to the wrong person; somebody said I didn’t, they couldn’t have dealings with this and I would have to write the Sheriff’s department. I mailed it to the Sheriff’s department and then that letter came back stating, referring me to the Detective Thrailkill department. And I just, you know, stopped right there.” He did not file a paper in a court in Maryland until the petition for writ of habeas corpus. He was represented by an attorney regarding the charges in the District of Columbia and he told her about the detainer and asked her “what possibly could I do about it.” She replied that she could not have anything to do with that case as “she was confined to the case in the District of Columbia.” When he received the paper from the tier runner, he was faced with three trials in the District of Columbia. He did not consider the petition for a writ of habeas corpus to be a request for a speedy trial; he was seeking information about the charges against him in Montgomery County. “This is the first time that I had any opportunity to pursue anything in this jurisdiction * * * I had no time at that time (when he received the paper), at that particular time or way in ’66.” He urged that Maryland should have let him “at least know a date so I could inform my witnesses or try to get a witness or try to recollect in my own mind what happened on that date, try to reconstruct something for it * * * If you could serve a bench warrant against me stating rape you could have put the date, rape against whom, whom I am supposed to have assaulted and whose house I broke into * * * What do I do? I write to any Judge and say, ‘I’d like a speedy trial on rape ?’ ”

Stevenson testified that he was arrested 3 July 1965 and had been incarcerated since that time — in the District of Columbia jail until 3 March 1966 and thereafter at Lorton. He claimed that he first learned of the charges pending in Montgomery County in “the middle part of September 1965” when he was given “a piece of paper stating there was a detainer lodged against my record for rape in favor of Detective Thrailkill.” This was the only information he received until he was shown the indictments in May of 1967. Prior to 8 February 1967 he had no attorney to represent him or advise him regarding the charges in Maryland. The attorney representing him with regard to the charges in the District of Columbia told him he represented him only on those charges and suggested that he “hire a lawyer. At that time I didn’t have no money to hire a lawyer.” He was prejudiced by being denied parole “because of the detainers placed against my record, and work release was denied to me because of the detainer. I was told I could not receive work release to support my wife and children because I had detainers placed against my record.” tie found out that his brother-in-law (Borum) “had filed a habeas corpus” and “took the same motion and had someone type it up for me and filed it in January of — January the 16th or 19th, 1966” (the correct date was January 24, 1967). On cross-examination he stated that he had talked to Borum about the detainer when they “went to the District court to answer the indictment” charging them with offenses in the District of Columbia. He did not write to anyone about the rape charge and particularly not “Inspector Thrailkill” because that officer had threatened him the night he was arrested, telling him that unless he made certain statements against Borum he would be charged “with a rape and seven or eight unsolved housebreaking charges in Maryland.”

Copies of the docket entries pertaining to indictments Nos. 7172, 7173, 7174 and 7175 were admitted in evidence as the appellants’ exhibits. A deputy United States Marshal testified that he had transported federal prisoners into Maryland on a writ of habeas corpus prosequendum but on cross-examination stated that he did so on order of “a district court judge for the District of Maryland” and had no authority to do so on an order of a state judge.

Inspector Fred P.-Thrailkill of the Montgomery County Police testified for the State. He identified a copy of a letter of transmittal dated 19 November 1965 sent to Deputy Chief Hart-nett of the Metropolitan Police Department as a detainer to be placed on Ernest Spencer Borum. He also identified a copy of a letter of transmittal dated 6 July 1965 to the same person. He said that the original was attached to a state warrant and an affidavit charging Stevenson with rape. Its purpose was to have the warrant filed as a detainer. He identified a third document as a similar copy of a letter regarding Borum and said that the original contained a warrant and an affidavit. The documents were admitted in evidence. On cross-examination he stated that indictments are not sent “unless they are requested” and that there was “nothing in the file to indicate there was a request.” When the appellants were re-indicted, new bench warrants on each indictment were sent to the Metropolitan Police Department on 19 November 1965 with a request to file them as detainers and to return the previous rape warrants and officer’s affidavits. His files contained nothing to show that anything else had been sent in connection with the charges. The warrants did not contain the alleged date of the commission of the crime. He was unable to say what disposition was made of the warrants upon their receipt by the Metropolitan Police Department. He was permitted, however, to testify as to the procedure followed. The letters of transmittal with the attached warrants and affidavits go to the Fugitive Squad. “From the Fugitive Squad if the subject is later transferred to another institution then a letter goes to — a letter of transmittal — goes to that institution with a copy of the warrant as filed by Maryland; would accompany the subject to that institution and remain there until he is released. And he has to go back to the Fugitive Squad before being turned over to Maryland.” He did not know why the appellants were not brought to trial. The State’s Attorney is informed as to the action taken by the Maryland police authorities; “we leave it up to the State’s Attorney to get the case before the court or any further action at that time to be taken by the State’s Attorney’s office.”

The Record Clerk at the Norton Reformatory was produced by the State. Pie testified that Norton is a federal penitentiary “under the District of Columbia government.” He had in his possession the records of the Reformatory with respect to each of the appellants. He identified as part of the records: (1) a memorandum dated 8 July 1965 to Borum “from the District of Columbia Jail Record Office.” It answered the description of the paper Borum said was delivered to him by a tier runner in that it was addressed to Borum and advised him that the District of Columbia Jail was in receipt of a detainer from the Metropolitan Police Department in favor of F. P. Thrailkill, Chief of Detectives, Rockville, Md., charging him with rape and that “this detainer will be placed against your record as of this date.” (2) a letter from the Acting Superintendent of the District of Columbia Jail dated 8 July 1965 acknowledging receipt of the detainer. (3) a letter from the Metropolitan Police Department dated 8 July 1965 to the Superintendent of the District of Columbia Jail requesting that a detainer be filed against Borum on a local charge of rape. It stated that Borum was wanted by F. P. Thrailkill, Chief of Detectives, Rockville, Md., that the Metropolitan Police Department held a warrant and further requested that the Department be notified prior to Borum’s release “in order that we may re-arrest him on a fugitive complaint.” Although the Record Clerk was not “quite familiar” with the procedures in the District of Columbia Jail, he testified that “I would say” that document (1) was “the type of memorandum that is given to someone who might be called a tier runner, and delivered to the inmate.” The three documents were admitted in evidence. The Record Clerk also had the file with respect to Stevenson and it was stipulated that as to three documents therein “the exhibits that are now in evidence, as directed to Mr. Borum, are identical and can be considered as additional exhibits for Mr. Stevenson.” On cross-examination he said that document (1) was “the only notification of any type of detainer that would have been delivered to the appellants. The files regarding the appellants did not contain copies of indictments or anything to show that they “were ever sent or furnished copies of any indictments or information” or that they “were ever notified of the existence of any detainer such as robbery, housebreaking, receiving stolen goods, or anything of that nature.” But the files would not contain a record of mail directed to the appellants personally.

The hearing court granted the motion to dismiss the second count of indictment No. 7366 (attempted robbery with a deadly weapon) and denied the motions as to all other counts in each indictment.

The appellants contend that they were denied both a speedy trial and due process of law on this appeal from the denial of the motion.

SPEEDY TRIAL

It is clear that an appeal will lie, prior to a trial on the merits, from a denial of a motion alleging a violation of the constitutional right to a speedy trial. Brown v. State, 2 Md. App. 388, 393; Allen v. State, 1 Md. App. 249, 252.

The right to a speedy trial is guaranteed by Article 21 of the Maryland Declaration of Rights and Amendment VI to the Constitution of the United States. Klopfer v. North Carolina, 386 U. S. 213; State v. Long and Nelson, 1 Md. App. 326. But the right is a relative one and the time within which trial must be had to satisfy the guaranty depends on the facts and circumstances of the particular case. Jones v. State, 241 Md. 599; Kelly v. State, 2 Md. App. 730. Four factors are relevant to a consideration of these facts and circumstances in determining whether a delay in trial assumes constitutional proportions: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the accused; and, (4) waiver by the accused.

(1)

As a general rule it is only after a prosecution has been initiated that the issue of a speedy trial can be raised by an accused ; until the grand jury acts there is no case to be tried. Price v. State, 235 Md. 295, 299; Reddick v. State, 219 Md. 95, 100, quoted in Keyes v. State, 236 Md. 74, 81. Cf. Petition of Provoo, 17 F.R.D. 183, aff’d, 350 U. S. 857. With respect to delay between arrest and indictment, there is no time limit, other than that fixed by the statute of limitations, upon action by the grand jury. O’Connor v. State, 234 Md. 459, 462, cited in Price v. State, supra, at 300.

In the instant case about 9 weeks elapsed between the appellants’ arrest in the District of Columbia and their initial indictments in Maryland. However, those indictments were not valid under the Schowgurow decision and they were re-indicted 2 months later, about one month after the date of that decision. We think it obvious that the State acted with diligence in obtaining valid indictments. In any event, the maximum time to be considered is that between the valid indictments and the hearing on the motions to dismiss — about 21 months and 13 days, noting that the appellants chose not to proceed to trial upon the denial of their motions pending a determination of the matter on appeal. We do not think that this passage of 21 months and 13 days itself demonstrates a violation of the right to a speedy trial. See United States v. Ewell, 383 U. S. 116.

(2)

Generally, delay caused by the accused is not to be computed in determining whether a defendant has been denied a speedy trial but only that delay which can be reasonably charged to the State. King v. United States, 105 U. S. App. D. C. 193, 265 F. 2d 567 (en banc), cert. denied, 359 U. S. 998, 79 S. Ct. 1124. The appellants urge that the State had a duty to seek their return from the penal institution in -which they were incarcerated so as to enable them to have a prompt trial. If the State had such duty and failed to perform it, the delay in the trial of the appellants would be chargeable to it.

In Kirby v. State, 222 Md. 421, cert. denied, 364 U. S. 850, the Court of Appeals said at page 424:

“It has been held many times that no constitutional right to a speedy trial is denied, when the delay in trial is because the accused is in a federal prison.” (citing authorities in other jurisdictions)

The Court assumed, without deciding, as it did in Kirby v. Warden, 214 Md. 600, 602, that there is an obligation upon the State prosecuting authorities to make application to the Federal Government for the return of a Federal prisoner to the State for trial under a state indictment and disposed of the case for other reasons. It found that there was no denial of a speedy trial because of waiver and because the question had not been raised below. The question was clearly left open in McCloskey v. Director, 230 Md. 635. The Court said, at page 637:

“Where the accused is serving a sentence in a Federal Prison in another State, the authorities are divided. Some courts hold that even where the Federal authorities agree, as a matter of comity but not as a matter of right, to release or procure a prisoner for trial in a State Court, the State authorities are not required to seek such release or production.” (cases cited)

However, the Court found it unnecessary to pass on the point as the constitutional rights to a speedy trial are limited to criminal prosecutions, and the case before it was not a “criminal prosecution” but a proceeding under Md. Code, Art. 31 B. The United States District Court for the District of Maryland also noted the division of authorities on the question in Maryland v. Kurek, 233 F. Supp. 431 (1964). In United States v. Banks, 370 F. 2d 141 (4th Cir. 1966) it was stated: “Imprisonment in a state institution has been held an acceptable reason for delay in bringing a defendant to trial on Federal charges.” But it found the rule subject to “very substantial qualifications,” distinguishing between a short period of confinement, which may justify delay in bringing a defendant to trial on other charges, and a long period of confinement, in which case no “substantial” delay in the initiation of efforts to obtain custody of him would be warranted. It said, “The dividing line is a variable, depending, in each case upon a number of factors,” at page 144. It felt that the prosecuting authorities were entitled to give consideration to the probable difficulty and the cost of obtaining custody of the defendant and of his return to his original place of detention. If the State makes a request that an accused incarcerated in a federal institution be returned for trial and punishment and it is rejected, we think that the ensuing delay in bringing him to trial would not be unreasonable. See People v. Winfrey, 281 N. Y. S. 2d 823.

In any event, in the instant case, we assume, without deciding, that the State of Maryland failed in a duty owed to the appellants to attempt to obtain their release for trial in Montgomery County and with this assumption proceed to a consideration of prejudice to the appellants.

(3)

In Fabian v. State, 3 Md. App. 270, we held that when an accused does not make a demand for a speedy trial, he must show that he has suffered actual prejudice caused by the undue delaying tactics of the State, stating that absent such a showing the right to a speedy trial had not been denied. We did not reach the question of prejudice to the defendant when demand for trial has been made. Fabian v. State, supra, note 7.

Where the delay is substantial, there may be a prima facie showing of prejudice and the State in such case has the burden of proving that there was no more delay than is reasonably attributable to the ordinary processes of justice and that the accused suffered no serious prejudice thereby. Williams v. United States, 102 U. S. App. D. C. 51, 53, 250 F. 2d 19, 21 (1957) [7 years delay]. There is no precise rule as to when a delay is “substantial”. See Petition of Provoo, 17 F. R. D. 183 (D.C. Md.), affirmed per curiam, 350 U. S. 847 [10 years]; United States v. McWilliams, 82 U. S. App. D. C. 259, 163 F. 2d 695 (1947) [4½ years]. But when the delay is less than “substantial,” even if it is purposeful, oppressive or negligent, at least some showing by the defendant of “a strong possibility of prejudice is required,” although the right to a speedy trial ’has not been waived. Bond v. United States, 233 A. 2d 506 (D. C. App. 1967); United States v. Banks, supra. In Banks, there was no basis for a claim of waiver (note 4). Although the Court thought that the District Attorney should have taken steps to bring the defendant to trial during the ten-month interval after the indictment during which he was in the custody of the State •rand could not justify the prosecutor’s inactivity during that period, it found, “considering all of the circumstances, including the length of the delay and the possible prejudice to the defendant, that there had been no deprivation of his constitutional aright to a speedy trial.” The Court said, pages 144-145:

“* * * [I]n appraising the right to a speedy trial we are required to look at the possible prejudice the defendant has suffered as well as to the length of the delay and the reason for it. The delay was not so long as to make a prima facie showing of prejudice. During that interval Banks was not confined on the federal charge. There was no loss of witnesses. He suffered no detriment from it.”

In the instant case we do not think that, under the circumstances existent, the delay was “substantial” so as to make a prima facie showing of prejudice. Therefore there must be a showing by the appellants of “a strong possibility of prejudice.”

As heretofore set forth, each of the appellants testified that he was prejudiced by the fact of the detainer lodged against him with respect to parole, “work release” procedures and “making bond.” These allegations go to prejudice to the person of each appellant as distinguished from prejudice to his defense. We do not deem the allegations to be material to the consideration of a denial of a speedy trial in the instant case, although prejudice to the person may be, in particular cases, relevant to such consideration. Assuming that the appellants were denied “work release” because of the detainers, this is in no wise comparable to the deprivation of employment alleged by the accused in Klopfer v. North Carolina, supra, who was a professor of zoology at Duke University. Nor did the pendency of the indictments here wrongfully interfere with the appellants’ professional activities and with their travel “here and abroad” as was alleged in Klopfer. Nor did the appellants contend and, we see no reasonable possibility, that the pendency of the indictments against them forced “curtailment of their speech, associations and participation in unpopular causes” as was found in Klopfer. Of real significance is that each appellant was confined in prison, not because of the detainers or the indictments pending in Maryland, but because of charges against him in another jurisdiction and his subsequent convictions. As to the matter of parole, Borum testified that he would not be eligible for parole until 1972. The record is clear that the State offered to place him on trial promptly upon the denial of the motion to dismiss the indictments on 30 August 1967. Stevenson did not show that he was eligible for parole at the time of his testimony. The contention of prejudice by being precluded from making bond is without merit. Both claimed to have no funds. Counsel was appointed to represent them on the charges in the District of Columbia and in Maryland. After their convictions in the District of Columbia they could not have been released on bond in any event while serving the sentences imposed.

Neither appellant directly contended that the delay in trial prejudiced his defense. Borum urged that the State should have let him “at least know a date so I could inform my witnesses or try to get a witness or try to recollect in my own mind what happened on that date, to try to reconstruct something for it.” But neither contended that witnesses who could substantiate a valid defense of alibi or otherwise and who would have been available but for the delay, became unavailable as a result of the delay. Such unavailability of witnesses would be a most compelling showing of prejudice. Bond v. United States, supra, at 512. Nor did either show a plausible inability to recall or reconstruct the events of the days of the offenses when the alleged offenses and the dates of their commission became known to him. From the record before us we find no “strong possibility” that the defense was hampered by the delay in trial.

(4)

In view of our finding as to prejudice, we need not reach the question of waiver by the appellants of the right to a speedy trial, assuming, but not deciding, that there was no basis for waiver.

Considering all of the circumstances, including the length of the delay and the possible prejudice to the appellants, we think that the lower court properly concluded after the hearing on the motions to dismiss that there had been no deprivation of the appellants’ constitutional rights to a speedy trial. In so holding, however, we do not condone the failure of the State to attempt to obtain the appellants for trial. It appears from the appellants’ appearance in court in Maryland on two occasions that the federal authorities would have made the appellants available.

DUB PROCBSS

The appellants contend that the failure of the State promptly to notify them of their indictment and to serve copies of the indictments on them denied them due process of law. They allege that other than the information with regard to the detainers on the rape charge they had no knowledge of the charges against them until 16 May 1967 when the indictments were shown to them. There were entries in the dockets that copies of the indictments were mailed to Borum on 19 September 1966 but to what address is not indicated. Borum denied receiving them and the records oí Lorton do not reflect that they were received, although there was evidence that il they were mailed directly to Borum he could have received them without the records so showing. The dockets are silent as to mailing of the indictments to Stevenson. The appellants urge in support of their contention that the provisions of Article 21 of the Maryland Declaration of Rights and Maryland Rule 719 preclude their prosecution. Article 21 of the Maryland Declaration of Rights provides, in pertinent part:

“That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment or charge, in due time (if required) to prepare for his defense; * * *.”

Maryland Rule 719 a provides, in pertinent part, regarding the indictment :

“The accused shall be furnished a copy thereof as soon as practicable after it shall have been prepared and in any event within a reasonable time before he is called upon to plead * * *.”

Information as to the accusation need not be conveyed by any other means than a copy of the indictment or charge, Goeller v. State, 119 Md. 61, for the purpose of an indictment is to apprise the accused of the crime charged, Dortch v. State, 1 Md. App. 173. The appellants were apprised of the crimes charged by the indictments ultimately delivered to them and, in view of our holding that their defense was not prejudiced by the delay in trial and as they have not yet been tried (since 30 August 1967 by their specific request), they have received the indictments in due time to plead and to prepare for their defense. Although it may be that the appellants were not furnished copies of the indictments “as soon as practicable” after they were prepared, Rule 719 a provides no sanction for violation of this requirement and prosecution is not precluded thereby in the absence of a constitutional violation. See Schuette v. State, 228 Md. 340; Ballam v. Warden, 196 Md. 644. We cannot justify the failure of the State to furnish the appellants copies of the indictments promptly, but, under the circumstances of this case, we find no denial of their constitutional rights.

Order denying the motion to dismiss the indictments affirmed.

      . Borum testified that his sentence will expire in 1979 and that he will be eligible for parole in 1973. The record does not disclose -the length of Stevenson’s sentence.

        . Stevenson filed a petition for a writ of habeas corpus on 24 January 1967 and apparently Borum had filed such a petition about 3 months before. Counsel was appointed to represent the appellants with respect to the petitions on 8 February and a writ was issued out of the Circuit Court for Montgomery County on 17 April. A hearing on the writ was held 16 May and on 7 June the writ was dismissed. The court held that “the real relief sought by the petitioners is dismissal of the indictments pending against them in Montgomery County, on which detainers have been issued. The Court cannot grant such relief in a habeas corpus proceeding.” It granted opportunity to file motions to dismiss the indictments. Such motions were filed on 14 June as noted above.

      . In Harris v. State, 194 Md. 288, it was assumed that there was the right to a speedy trial where the accused was incarcerated in Maryland upon a prior conviction, although in that case the right was held to have been waived as not reasonably demanded.

      . The Court cited United States v. Simmons, 338 F. 2d 804 (2d. Cir. 1964); Stevenson v. United States, 107 U. S. App. D. C., 398, and referred to Bistram v. People of the State of Minnesota, 330 F. 2d 450 (8th Cir. 1964).

      . Title 18, § 4085 (a) U.S.C.A. provides that the executive authority of a state may request transfer of a federal prisoner for prosecution or punishment and that the Attorney General of the United States shall transfer the prisoner if he finds it in the public interest to do so. In the instant case no such request was made. The appearance of the appellants was obtained, however, for the hearing on the writ of habeas corpus and for the hearing on the motions to dismiss. We note that the District of Columbia is not a party to the Interstate Agreement on Detainers. Maryland is a party to the Agreement. Md. Code, (1967 Repl. Vol.), Art. 37,. sections 616A-616R.

      . This was the only period found by the Court to be attributable to the Government.


source: Caselaw Access Project

license: Public Domain

text:
    HARRY LaRUE McCLELLAND v. STATE OF MARYLAND
    [No. 259,
    September Term, 1967.]

      Decided April 22, 1968.

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

      Milton B. Allen for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and John H. Eewin, Jr., 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 the crime of riot at a court trial in the Criminal Court of Baltimore and sentenced to imprisonment for a term of 10 years “consecutive with any sentence now serving.”

On appeal from this judgment the appellant first presents the question, accepted by the State, “Was the defendant, Harry LaRue McClelland, denied his constitutional right of the effective assistance of counsel guaranteed by Amendment VI of the Federal Constitution?” The question was raised below by three motions filed by the appellant prior to the trial on the merits. A motion to dismiss the indictments was filed on 28 March 1967. It was denied at a hearing thereon on 10 April 1967, without evidence being produced, for the reason that accepting the allegations set forth in the motion as true, they would not affect the validity of the indictment. Upon denial of the motion, a motion “for appropriate relief” was filed, setting forth the same allegations contained in the motion to dismiss. Evidence was received with regard to this motion. During the period 19 December to 30 December 1966 the appellant had written eight letters and during the period 19 January to 3 February 1967 at least five letters, each addressed to his counsel and submitted to the prison authorities to be mailed. Several of the letters were returned to him by the prison authorities because they were sealed contrary to prison regulations. On 16 January 1967 the appellant was placed in solitary confinement and he claimed that when he was returned to his cell on 19 January carbon copies of letters he had written to his attorney were missing. Upon his transfer to Patuxent Institution on 3 February three letters that had been returned to him unmailed and carbon copies of certain other letters to his attorney were taken. On 6 April the warden of the penitentiary gave the Assistant State’s Attorney of Baltimore City prosecuting the instant case certain documents from the institution’s records pertaining to the appellant. Included among those documents were two photocopies and three carbon copies of letters from the appellant to his attorney. Defense counsel’s personal secretary testified that she received and recorded all mail to counsel from the appellant and that her records showed that six letters had been received, two of which bore the same date as the two photocopies and two of which bore the same date as the carbon copies in the possession of the State. Prison records showed that defense counsel had private interviews with the appellant at the penitentiary on 19 December 1966 and 19 January 1967.® The appellant testified that he knew that his unsealed letters to his attorney would be censored by prison authorities. He stated that he wrote the letters because his atttorney was not able to come to the penitentiary as frequently as he would have liked and that he had too much material to memorize and tell his attorney at a personal interview. An inmate of the penitentiary testified that the assistant warden “threatened” him on 13 July 1966, a few days after the riot, telling him that if he testified at the appellant’s trial or told “anybody what has occurred in these cells,” he would not be released from the mental observation cell where he was confined. He further said that shortly after 10 February 1967 when he was awarded a new trial on a post conviction hearing both the warden and assistant warden told him that if he testified at the appellant’s trial “they would push for a re-trial” on his charges and “if I didn’t they wouldn’t retry me on those charges.” A proffer by the appellant of the testimony of five inmates was accepted by the court. The proffer was to the effect that the inmates were threatened by prison authorities with reprisals if they testified at the appellant’s trial. One would also testify that he was told his name had been in a letter written by the appellant and another would testify that he was shown a letter from the appellant to his attorney in which it was stated that the appellant had valuable information and wanted to see the attorney.

The lower court denied the motion, whereupon the appellant filed a second motion “for appropriate relief” containing the same allegations as in the prior motion and as an additional ground in support thereof stated that the prosecuting authorities had received copies of letters from the appellant to his attorney. By agreement all the evidence received with regard to the prior motion was accepted as to the second motion and in addition the testimony of the Assistant State’s Attorney was received. He testified that he received two photocopies of letters and three carbon copies of letters from the appellant to his attorney from the warden on 6 April 1967. He read the letters for the first time on 8 April and did so because, in his opinion, they would be relevant to the motion to dismiss which alleged that certain letters of the appellants had been censored and seized. He said that no information in the letters was utilized to prepare for the prosecution of the case and that, in fact, there was no information in the letters helpful to the prosecution. The letters, admitted in evidence, did not contain information about the crime for which the appellant was charged, but about irregularities in the conduct of the prison and the treatment of its inmates. The lower court denied the second motion “for appropriate relief.”

In disposing of the two motions the lower court, noting that the appellant had been indicted for certain offenses which occurred while he was an inmate in the penitentiary, said that “in an institution of a penal nature, a certain amount of security regulation is basic, that discipline is necessarily strict to insure security and the general welfare of the institution; that censorship of mail is a recognized part of these precautions, and that all of these security regulations, and types of activities are known to the inmates.” It found that there was no evidence to show that the appellant was “any exception to this rule,” or that he was not in a position to know of the regulations, and to be constrained to conform to them.” It found as a fact that arrangements had been made to give an unlimited number of visits-by attorneys to their clients and that the visits could be made, not only at the regular visiting hours, but at unusual hours and that privacy would be insured between attorney and client. “So-that the basic way of communicating confidential information from a client to attorney, in an atmosphere where the client knows that the letters are going to be censored, * * * would be by a face to face confrontation and disclosure of information.” It further found that no letters from the appellant to his attorney were improperly intercepted, confiscated or destroyed and no-showing that the mail handling was improper and that even if it had been improper, there was no showing that it had “any detrimental effect on the communication of information proper and necessary to the defendant’s defense.” Although there were allegations that since the appellant made statements in his letters that other inmates “were going to testify to certain events or transactions,” the censorship of the letters enabled the prison authorities to learn of this and “that they then intimidated these witnesses to the extent that they would not thereafter testify beneficially to the defendant,” the lower court found that “the evidence does not disclose that any testimony which McClelland thinks is beneficial to him, and which he thinks would come from these inmates, has been suppressed; or, he has been deprived of it, by virtue of these alleged threats and intimidations.” The lower court stated that “a communication between attorney and client lacks the element of confidentiality when it is made under such circumstances that its revelation is to be expected. So that if it is discussed in the presence of a third party, and particularly an adverse third party, then the law will assume that the attorney and the client intended to communicate something confidential in the presence of some party whose interests were adverse to theirs.” The court reasoned that both the appellant and his attorney “knew or had very good reason to believe” that what was put into a letter would be “subject to scrutiny of the penitentiary authorities” and therefore was no different than communicating something in the presence of a third person and therefore lacked “the neccessary element of confidentiality.” Correspondence between the appellant and his attorney was shown by the evidence to have been one method and “at best an imperfect method” of communicating information, particularly where the attorney and his client were separated only by “some fifteen or twenty city blocks, with an unlimited right of private visitation available.” The court found as a fact that the communications by letter between the appellant and his attorney lacked the element of confidentiality. The lower court further found the photocopying of the appellant’s letters was not done for the purpose of supplying the prosecuting authorities with information to be used in the prosecution of the case or in obtaining the indictments which were returned some months before the acts of which the appellant complained. The prosecuting authorities received the copies of the letters only a few days before trial “when presumably all of the prosecution’s witnesses had been interviewed and the case was ready for trial, apparently, for some time * * * It certainly would seem to have had little purpose in attempting to intercept these allegedly confidential communications, to transmit to the State’s Attorney many months after the case had already reached trial state.” We think that the evidence before the court was sufficient to support its factual findings and we find that it did not err in denying the motions. The relief sought by the appellant in all of his motions was included in his prayer for relief in the third motion filed by him. As stated in his brief he requested:

“(1) A continuance until the taint of unlawful interference with communication between client and attorney has been removed; or
(2) That the Court find, as a fact, that the confidential relationship between lawyer and client had been so severely impaired as to prevent a fair trial; or
(3) A dismissal of the indictments.”

The lower court found that there was “no sufficient showing to justify the relief prayed.” The second and third motions were again offered at the conclusion of all the evidence at the trial on the merits and denied.

The Sixth Amendment to the Constitution of the United States provides, in relevant part:

“In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.”

Gideon v. Wainwright, 372 U. S. 335 held that this right was made obligatory on the states through the Fourteenth Amendment and that an accused has a right to counsel at his trial. He is also entitled to the assistance of counsel at other critical stages of the proceedings against him, for example at his appearance in a line-up, during the conduct of a custodial interrogation and on direct appeal from his conviction. When he has the assistance of counsel, that counsel must afford him a genuine and effective representation going to the fundamental fairness of the trial, and if such representation is not afforded him, by reason of his counsel’s competency or conduct, his conviction cannot stand. In the instant case the appellant was represented by highly competent counsel, experienced in the defense of criminal cases, and, it is not alleged, nor does the record in any way show, that the representation by counsel himself was other than genuine and effective. But an essential ingredient of the Sixth Amendment’s right to counsel is the right of the defendant and his counsel to prepare for trial without intrusion upon their confidential relationship by an agent of the state, the defendant’s trial adversary. Such an intrusion may vitiate a conviction and afford the defendant a new trial, not because of the fact of the intrusion but because the effect of it was to deny the defendant a fair trial. Thus the question presented by the appellant must be related to his trial and the motions made by him are properly considered as of the time they were denied when re-offered at the conclusion of all the evidence at the trial on the merits. We think that the true issue before us is more clearly stated in the following form:

Did the conduct of the State and its agents render the trial at which the appellant was convicted unfair to him?

We are supported in our conclusion as to the proper posture of the issue before us by other cases involving the right of a defendant and his counsel to prepare for trial without intrusion upon their confidential relationship by the prosecuting authorities or their agents. Both Caldwell v. United States, 92 U. S. App. D. C. 355, 205 F. 2d 879 and Coplon v. United States, 89 U. S. App. D. C. 103, 191 F. 2d 749 dealt with government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel. “In Coplon, the defendant alleged that government agents deliberately intercepted telephone consultations between the defendant and her lawyer before and during trial.” Quote from Hoffa v. United States, supra, 385 U. S. at 306-307. In Caldwell, the agent, “[i]n his dual capacity as defense assistant and Government agent * * * gained free access to the planning of the defense. * * * Neither his dealings with the defense nor his reports to the prosecution were limited to the proposed unlawful acts of the defense: they covered many matters connected with the impending trial.” 92 U. S. App. D.C. at 356, 205 F. 2d at 880. In Coplon and Caldwell, the appellate court held that the government’s intrusion upon the defendant’s relationship with his lawyer “invalidates the trial at which it occurred.” 89 U. S. App. D. C. at 114, 191 F. 2d at 759; 92 U. S. App. D. C. at 357, 205 F. 2d 881. In both those cases the court directed a new trial. In Coplon the grant of a new trial was conditioned on the defendant’s proof of her wire tapping allegations and in Caldwell the second trial resulted in a conviction which the Supreme Court declined to review. 95 U. S. App. D. C. 35, 218 F. 2d 370; 349 U. S. 930, 75 S. Ct. 773. We note further that in Coplon the allegations of wire tapping were made in support of a motion for a new trial and in Caldwell it was implicit in the holding that the intrusion tainted the conviction. In Black v. United States, 385 U. S. 26, 87 S. Ct. 190, the Solicitor General informed the Supreme Court voluntarily, after a petition for certiorari had been denied but before an application for rehearing had been filed, that the F. B. I. in a matter unrelated to the case, had installed a listening device in Black’s hotel room and overheard conversations between him and the attorney representing him in the case. Reports and memoranda were subsequently transmitted to attorneys of the Tax Division responsible for the prosecution of the case who found nothing relevant to the case. But “neither the judge, the petitioner nor his counsel knew of the action of the federal agents” nor did the prosecuting attorneys “know at the time of the trial that conversations between Black and his attorney were included in the transcriptions.” 385 U. S. at 28, 87 S. Ct. at 191. The Supreme Court said:

“In view of these facts it appears that justice requires that a new trial be held so as to afford the petitioner an opportunity to protect himself from the use of evidence that might otherwise be inadmissible. * * * This will give the parties an opportunity to present the relevant evidence and permit the trial judge to decide the questions involved. It will also permit the removal of any doubt as to Black’s receiving a fair trial with full consideration being given to the new evidence reported to us by the Solicitor General.” 385 U. S. at 28-29; 87 S. Ct. at 191-192.

In Hoffa v. United States, 387 U. S. 231, 87 S. Ct. 1583, eavesdropping equipment had been installed by trespass in the office of a person not a party to the case. A conversation was overheard between that person and a defendant concerning the conduct of the defense to the prosecution in the case before the Court. The recording was available to government attorneys involved in the prosecution but was only “peripherally relevant to the charges underlying the conviction.” The case was remanded for hearing, findings and conclusions on the nature and relevance of recorded conversations to the convictions of all the defendants. In O’Brien v. United States, 386 U. S. 345, 87 S. Ct. 1158, a new trial was ordered but it was apparent that the overhearing of a conversation of the defendant concerning his forthcoming trial by means of an electronic eavesdropping device was not known to the court or the parties at the time of the trial. In Gradsky v. United States, 376 F. 2d 993 (5th cir. 1967) after oral argument was heard on remand from the Supreme Court, the defendant filed a motion to vacate the judgment and remand for a new trial on the ground that the F. B. I. had installed a microphone by trespass and overheard his conversations with counsel relating to the charges. The trial had taken place during the period of surveillance. A new trial was granted, but there also it was apparent that the fact of the overhearing of the conversations was not known at the trial at which the defendant was convicted. In Cox v. Crouse, 376 F. 2d 824 (10th cir. 1967) the warden opened, read and communicated to the prosecuting authorities letters of an inmate in the prison to his attorney. The inmate defendant alleged that those facts alone “effectively prevents adequate counselling of a client,” and that he need not show prejudice. The court held that it could not infer prejudice from those facts and affirmed the conviction. The Supreme Court denied certiorari. 389 U. S. 865. In United States v. Taglionetti, 274 F. Supp. 220 (D. C. R. I. 1967) the court felt that the Supreme Court had not held that if there had been an intrusion into any attorney-client conversation a new trial would be mandatory. It held that such conversation in the case before it was unrelated to the criminal case then pending against the defendant and affirmed the conviction.

We conclude that an intrusion into an attorney-defendant relationship, even if improper, does not, in itself, bar prosecution. Nor does it vitiate a conviction unless it so taints the trial at which the conviction was obtained as to render that trial unfair to the defendant.

We proceed, therefore, to the consideration of whether the conduct of the State and its agents in the instant case rendered the trial of the appellant unfair to him. In considering this question we shall assume, without deciding, that the conduct of the State and the prison officials was improper. We have carefully reviewed the transcript of the trial and have not the slightest difficulty in concluding that the trial of the appellant was in no way tainted by the conduct of prosecuting authorities and the prison officials of which the appellant complained. We think it significant that before trial, the court, the defense and the State were fully aware of the facts and circumstances relating to the allegations of the intrusion into the relationship of the appellant and his counsel. In disposing of the motions the lower court made clear that it could not tell at that stage of the proceedings whether the intercepted mail had “any real effect on the case or not. That can only be demonstrated during the trial of the case.” It observed that it was sure that the appellant’s attorney would make proper objections, “if there was any reason to believe that any of the testimony being offered is the result of any improper interception.” There was no evidence admitted, or even offered by the State, which was acquired by reason of such conduct, directly or indirectly. It was clear that the defense was not hampered by the challenged conduct. There was no contention that any witness whom the appellant desired to testify in his behalf would not testify because he had been intimidated. In fact a proffer by the appellant that some 22 witnesses would testify that “they were aware, prior to July the 8th, 1967, of various grievances existing among inmates of the Maryland State Penitentiary against the prison administration; that these grievances covered four; vocational training; guard brutality; graft and corruption, engaged in by prison guards, and administration personnel; poor food and favoritism,” and “that the purpose of the events or protests of July the 8th was to bring these grievances to the attention of the public,” was accepted as part of the record. All testimony and evidence received in the hearing on the motions which the appellant proffered were accepted at his suggestion as part of the record of the trial. We find no. denial of the constitutional rights of the appellant. We hold that the appellant received effective assistance of counsel, that his. trial was fair, that he was not entitled to the relief prayed in his-motions and that the lower court did not err in denying them.

The appellant also contends that the evidence was not sufficient to sustain the conviction. Not only did some fourteen witnesses produced by the State testify that the appellant participated in acts which were sufficient to prove the offense with which he was charged but the appellant himself admitted when he took the stand that he had set a fire to signal the start of the “protest,” that he obtained baseball bats, that he took one himself and made others available to other inmates and that he broke windows and destroyed penitentiary property with other inmates. He said that he had gotten the message the morning of the riot that they were going to “pull a protest.” In admitting the activities, he said, “I was joined by a few, and then as momentum, you knew, grew in the thing, and thus as a man, I guess we became a body.” We meant to bring the institution, to. shut down the institution, to bring all working in the institution, all normal every day functioning in the institution to a complete standstill * * * The purpose of it was to have something spectacular and dynamic that the Baltimore, the Maryland public couldn’t fail to see, and therefore investigate and do something about the corrupt conditions that had been there for years. * * * Non-violence means had all been stifled by the administration, effectively stifled.” This was his defense to the charges, against him. His counsel told the lower court, “It is the defendant’s contention that this outburst was an attempt to correct certain grievances of — the prisoners felt they had, and that is the only defense he has offered.”

The lower court found that “the evidence clearly stands beyond a reasonable doubt that a riot did occur. And, by the defendant’s own admission, that he was not only an integral part of it, but in some sense a leader of it, to what degree of leadership he fell heir, or took upon himself, is not important. But he did participate in the riot, and he was certainly in a position of leadership through the course of events.” The allegation of the appellant that the State did not “show any terror on the part of the populace or inmates of the institution" is of no merit. The evidence was ample to prove the appellant guilty of the crime charged beyond a reasonable doubt and therefore the judgment of the lower court on the evidence was not clearly erroneous. Md. Rules, 1086.

Judgment affirmed.

      . The motions were directed also to six other indictments not involved in this appeal.

      . Counsel was appointed to represent the appellant in the instant case on 1 December 1966. It appears that the appellant had been sentenced to a term of imprisonment of 30 years on prior convictions. He was confined in the Maryland State Penitentiary at the time of the riot and remained there until 3 February 1967 when he was transferred to Patuxent Institution.

      . Prison regulations require that all mail, with a few exceptions not here relevant, be unsealed so they may be censored before being mailed. A classification officer of the Penitentiary, responsible for censoring all of the appellant’s mail addressed to his attorney, testified that none of the letters were returned because of content.

      . There was evidence that there was a routine inspection of the appellant’s cell on 3 February. Four carbon copies of letters addressed to his attorney and contraband were confiscated.

      . There is no allegation that counsel was denied the opportunity to consult with the appellant. The warden testified that special arrangements had been made in November 1966 whereby an attorney representing an inmate charged with an offense relating to the riot could, on a notice of one hour, visit with his client in a special visiting area which would be under observation of correctional officers but not within hearing distance of them. Attorneys could so confer with their clients during existing visiting hours or after existing visiting hours. The warden said that no request by the appellant or his attorney to confer had been denied.

      . The appellant was presented and indicted on 32 July 1966.

      . United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263.

      . Miranda v. Illinois, 384 U. S. 436.

      . Douglas v. California, 372 U. S. 353.

      . Miller v. State, 1 Md. App. 353.

      . Hoffa v. United States, 385 U. S. 293, 87 S. Ct. 408.

      . In Hoffa v. United States, 385 U. S. 293, 308, 87 S. Ct. 408, 416, the Court said, “It is possible to imagine a case in which the prosecution might so pervasively insinuate itself into the councils of the defense as to make a new trial on the same charges impermissible under the Sixth Amendment.” In Caldwell v. United States, 92 U. S. App. D.C. 355, 205 F. 2d 879, n. 11, the Court said, “Appellant’s motion was in the alternative — for acquittal or a new trial. It is the latter claim which is urged on this appeal, and which we sustain. But we think it well to add that the motion for judgment of acquittal appears to us to have been properly denied, in the absence of any showing of prejudice to the defense of such a nature as would necessarily render a subsequent trial unfair to the accused.” Whatever such pervasive insinuation and prejudice of such nature may be, we think it clear that neither was present in the instant case.

      . There is ample authority that prison censorship of the inmate’s mail is permissible. “Control of the mail to and from inmates is an essential adjunct of prison administration and the maintenance of order within the prison.” McCloskey v. Maryland, 337 F. 2d 72 (4th Cir. 1964) at page 74: See also Green v. Maine, 113 F. Supp. 253, 256 (D. C. Me. 1953); Haas v. United States, 344 F. 2d 56 (8th Cir. 1965). Also, we agree with the lower court as hereinbefore stated, that any confidential nature in the correspondence between the appellant and his counsel was waived by the appellant under the circumstances existent.


text:
    CHARLES FRANCIS THOMPSON v. STATE OF MARYLAND
    [No. 261,
    September Term, 1967.]

      Decided April 22, 1968.

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

      Charles L. Carter, Jr., for appellant.

      Alfred J. O’Perrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William B. Whiteford, Jr., Assistant Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Charles A. Herndon, Jr., 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 by a jury in the Criminal Court of Baltimore of the following offenses and punishment was imposed as designated: larceny of $265 of the money of Joseph G. White, 6th count of indictment No. 4048 — 15 years; larceny of the use of an automobile of Paul V. Forrest, the younger and his agents, 3rd count of indictment No. 4045 — 1 year consecutive with the sentence under indictment No. 4048; glue sniffing, indictment No. 4079 — a fine of $25.

SPBBDY TRIAL

The appellant contends that he was denied his constitutional right to a speedy trial. He was presented on August 18, 1966, indicted on August 30, 1966, his trial commenced on May 23, 1967 and was concluded on May 26, 1967. During the period between indictment and trial he was arraigned on 6 September and re-arraigned on 14 September. On 20 September he filed a motion to dismiss the indictments and a motion for discovery and inspection. On 26 September he filed a written plea of “not guilty, not guilty — insane then and now.” The next day an order of court directed that he be transferred to the Clifton T. Perkins State Hospital for examination and evaluation. On 29 November a medical report was filed. On February 8, 1967 the State answered the motion for discovery and inspection and the motion to dismiss the indictments. On 6 April the State filed supplemental answers to the motions. The motion to dismiss the indictment was not on the ground that a speedy trial had been denied him. The appellant claims that he filed a motion for dismissal on the ground of denial of a speedy trial “sometime after April 18, 1967.” The record does not disclose this motion, but in any event, the matter was considered by the court on 24 May at which time he alleged that the case had been set for trial on 8 February and 13 April but postponed by the court at the request of the State’s Attorney. On the first occasion, however, it appeared that one of the reasons for the postponement was that the appellant’s counsel was “going to the hospital on 13 February” and “acquiesced” in the postponement. He was in the hospital about 14 days — “I was operated on a Monday and came back to work the second Monday after that. I wasn’t in any shape of trying a case.” On 13 April the State requested the postponement because all its witnesses were not present. The appellant was consulted at that time and elected to have all the cases tried together rather than proceed with those cases in which the witnesses were present. We see no capricious or purposeful delay on the part of the State. Therefore such delay as existed was not unreasonable or unnecessary and was not a delay in the constitutional sense. Further, the accused waived his right to a speedy trial by failing to demand it. Assuming that he demanded it shortly after 18 April, the time between that demand and his trial was not an unreasonable delay. In any event, he has shown no actual prejudice caused by undue delaying tactics of the State. Rabian v. State, 3 Md. App. 270. We hold that the appellant was not denied a speedy trial.

TRIE CHARGE TO THE JURY

In its instruction to the jury the lower court said:

“In these cases, as in all other criminal cases, the burden of proof is upon the State to prove every element of a crime charged against the defendant. Therefore I say to you that the accused is presumed innocent until proven guilty beyond a reasonable doubt. This presumption of innocence attends him throughout the trial until overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty. The defendant is entitled to every inference in his favor which can reasonably be drawn from the evidence. Now while the burden is upon the State of establishing proof of every fact material to the guilt of the defendant, including every circumstance that enters into the crimes charged beyond a reasonable doubt and to a moral certainty, that does not mean, however, that the State must prove the defendant guilty to an absolute or mathematical certainty. It means such evidence as you would act upon in a matter involving important affairs in your own life or in your own business or with regard to your own property. Now if the evidence is such that you would act upon it in very important matters in your own life then it is sufficient to convict in a criminal case. Evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent man or woman of the truth of a proposition with such force that he or she would act upon that conviction without hesitation in his or her own important affairs. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable coincidence consistent with innocence be negatived.”

The appellant claims that this instruction was “tantamount to an instruction that the State only had to prove its case by the preponderance of the evidence.” We do not agree. We think that the challenged instruction correctly stated the law. We approved comparable language in Avey v. State, 1 Md. App. 178, 189, and the Court of Appeals approved practically identical language in Lambert v. State, 193 Md. 551, 558-561. We find no error in the instruction.

THE LINEUP

The appellant contends that because he did not consent to appear in a lineup, he was denied his constitutional right against self-incrimination. The testimony with respect to the identification of the appellant in a lineup to which the appellant refers in his brief was admitted in evidence without objection by him. The point is, therefore, not properly before us. Md. Rules, 1085. In any event, we think it clear that the placing of an accused in •a lineup without his consent is not constitutionally proscribed. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. The requirements as to the presence of counsel :at a lineup announced in Wade and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, do not apply to the appellant as the lineup in which he appeared was held prior to the decisions in those cases and they are not retroactively applied. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199; Tender v. State, 2 Md. App. 692, 695-696.

THE ARREST

The appellant contends that the evidence produced against him should have been suppressed and the indictments against him should have been dismissed because his arrest was illegal. Evidence adduced by the State on the issue of the arrest showed that a police officer saw an automobile containing three male persons parked beside a tavern. Two were in the front seat (the appellant was on the right side of the front seat) and one in the back. “All three of them had paper bags up to their faces.” When they saw the officer “they all three dropped the paper bags and jumped out of the automobile and started running.” 'The officer chased the appellant on foot and then in a cruising patrol car. The car caught up to the appellant and he stopped •on order of the officer. When the officer got out of the car the ^appellant again ran. “By that time he was pretty well tired. He cut up an alley. There were kids playing in the alley. I reached ■out and grabbed him by the shoulder * * * He seemed to be in an intoxicated condition.” He “had a strong odor of what appeared to be glue on his person. There were traces of white ■residue which appeared to be glue on his fingers and on his ;shirt * * * His face was flushed and the pupils in his eyes were real big * * * extra large * * * that indicates he was under some kind of a form of drug or narcotic or intoxicated * * * While I was chasing him, as he was running, it wasn’t the way a normal person would run. This was more of a lope, of a long stride of one foot coming down and a hop in the air. He would go like a gazelle or a gnu.” The officer placed the appellant under arrest. The officer had made other arrests involving the crime of glue sniffing and was familiar with the methods, of sniffing glue and its effect on the person inhaling it. We think it clear that the officer observed the appellant committing a misdemeanor in his presence. Md. Code (1967 Repl. Vol.), Art. 27, § 313A. We said in Salmon v. State, 2 Md. App. 513, 522:

“ ‘Presence’ is a word of art, denoting that the commission of a misdemeanor is perceptible to the officer’s senses, whether they be visual, auditory, or olfactory. * * * [A] crime is committed in the presence of an officer where his senses afford him knowledge that such is the fact; and that where some evidence of a commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the misdemeanor is then being committed, the officer may act upon such information as being tantamount to actual knowledge that the misdemeanor is being committed in his presence.”

Flight, under the circumstances here, could reasonably be viewed as evidence of guilt of a particular crime, namely glue sniffing proscribed by Md. Code, (1967 Repl. Vol.), Art. 27, § 313A. See Salmon v. State, supra. Accordingly the appellant’s arrest was grounded upon the reasonable belief that he was committing a misdemeanor in the presence of the officer. Therefore the arrest was legal. Crosby v. State, 2 Md. App. 578; Crumb v. State, 1 Md. App. 98. In any event, even an illegal arrest would not affect the jurisdiction of the court, would not be a ground for dismissing the indictment and would not preclude trial and conviction for the offenses. Nadolski v. State, 1 Md. App. 304; Powell v. State, 1 Md. App. 495. And where evidence is not seized as a result of an illegal search, it is not rendered inadmissible by an illegal arrest. Fisher v. State, 1 Md. App. 505. We find no error in denying the motions to dismiss the indictments and to suppress the evidence on the ground that the arrest was illegal.

THE OFFENSE OF GLUE SNIFFING

The appellant attacks his conviction of the offense of glue sniffing on two grounds. First he alleges that the indictment was stetted, and, second, he contends that the evidence was not sufficient to sustain the conviction.

The Stet

At the conclusion of the evidence offered by the State a motion for judgment of acquittal as to indictment No. 4079 charging the crime of glue sniffing was denied by the lower court. After a “luncheon recess” at a bench conference the Assistant State’s Attorney said, “We will enter a stet in 4079.” The transcript shows the following colloquy:

“The Court: You are not pressing the addendum in indictment 4079 ?
Mr. Herndon: We are not pressing the addendum in 4079.
The Court: So that the issue of the addendum will not be given to the jury and is withdrawn, is that correct?
Mr. Herndon: Yes.”

It is obvious that the reference to the stet by the State concerned only the addendum to indictment No. 4079 which warned the appellant that the State intended to prosecute him for the current offense as a second offender. See Md. Rules, 718. That defense counsel understood this is clear. At a conference at the close of all the evidence the State said it was pressing only the current offense of glue sniffing, not the addendum, the court remarking, “Yes, I took the addendum off as per your request.” Defense made no objection either at that time or when the court referred to indictment No. 4079 in its instructions to the jury, and, in fact, had renewed its motion for judgment of acquittal as to that indictment at the close of all the evidence. The record shows that a nolle prosequi was entered to the addendum. There is no merit to this contention.

The Evidence

Md. Code, supra, Art. 27, § 313A makes it a crime to deliberately smell or inhale such excessive quantities of any noxious substance “containing solvents releasing toxic vapors, as to cause conditions of intoxication, inebriation, excitement, stupefaction or dulling of the brain or nervous system.” The section provides that it “applies with particularity to fingernail polish, model airplane glue, or any other substance or chemical which has the aforementioned effect upon the brain or nervous system when smelled or inhaled.”

At the guilt stage of the proceedings there was evidence adduced by the State which was in substance the same as that herein summarized with regard to the arrest of the appellant, except that more detail was elicited as to the methods involved in glue sniffing. The evidence was corroborated by another officer who also testified that the three brown paper bags containing a substance which smelled like glue were recovered from the car in which the appellant was seated, two bags from the front seat and one bag from the rear seat. In the glove compartment of the car were four unused tubes of “Pastor Glue.” There was further evidence that the appellant when apprehended was “more or less incoherent” in speech and had an odor which in the opinion of the officer was glue. The bags were admitted in evidence and there was testimony that the tubes contained glue or cement used for plastic models. It was indicated that it was the type “normally employed by people who wish to intoxicate themselves from glue sniffing” and the inhaling of it would cause “intoxication or a numbing effect.”

We hold that there was legally sufficient evidence on which the jury could find the appellant guilty beyond a reasonable doubt and that there was not error in the denial of the motion for judgment of acquittal as to indictment No. 4079. Agresti v. State, 2 Md. App. 278. Compare Palacorolla v. State, 232 Md. 435.

THE LARCENY

The appellant attacks his conviction under the 6th count in indictment No. 4048 on the ground that the evidence was not sufficient to sustain a conviction. There was evidence showing that a “young fellow” entered a tavern about 11:30 P.M. on July 30, 1966, pointed a gun at the bartender and said it was a holdup, “don’t nobody move.” A few seconds later two more “young fellows” came in and went to the cash register. They “hit it open, started going through the cash register, sticking bills in their pockets.” They also searched a drawer next to the cash register. The appellant was identified in court by four witnesses as one of the persons who went to the cash register and took money out of it. The one with the gun robbed a customer of his wallet and then started to “rifle through” a woman’s purse on a table at which a male customer was sitting. The customer grabbed the gun and knocked the gunman to the floor and “straddled him.” He was forced to break his hold when he was hit on the head by a glass ash tray. “We fought through the bar, out the front door, up the sidewalk and the gun went off.” The gunman broke away and started running. The customer chased him and “he spun around and fired two shots.” He then ran to a car and drove away. The customer “took the the tag number,” went back in the bar, told someone to write the number down and called the police, reporting the license number to them. The owner of the tavern, who was in his residence above the tavern when the robbery occurred, and an employee testified that $265 was taken from the register. The amount was ascertained by checking out the register. No bills were left in the register after the robbery, only $4.90 in change.

We find that there was evidence legally sufficient for the case to go to the jury and for the jury to find the appellant guilty beyond a reasonable doubt. Agresti v. State, supra. The allegations of the appellant go primarily to the weight of the evidence but this Court does not inquire into and measure the weight of the evidence, which is a matter for the jury. Graef v. State, 1 Md. App. 161; Culver v. State, 1 Md. App. 406.

THE LARCENY OE THE USE OE THE AUTOMOBILE

The appellant contends with respect to indictment No. 4045 under which he was convicted of the unauthorized use of the automobile of Paul V. Forrest that the court erred in refusing to grant his motion to dismiss the indictment, and his motion for judgment of acquittal.

The Indictment

The third count, under which the appellant was convicted, described the automobile as “one Ford convertible automobile, 1965 model, Serial 5N-66C112345.” The appellant moved to dismiss the indictment on the ground that the automobile was in fact a hardtop and not a convertible. Prior to trial the court permitted the State to amend the indictment to state that the automobile was a hardtop. See Md. Rules, 714 a; Corbin v. State, 237 Md. 486. There was no error in the denial of the motion to dismiss the indictment.

The Judgment of Acquittal

There was entered in evidence by agreement, the following stipulation:

“Miss Irene Forest, a nurse at Children’s Hospital parked her father’s 1965 Ford bearing Maryland Fícense BZ 9262 at the Trving Cross Fot which is 401 N. Calvert Street at 7:15 A.M. on August 2nd, 1966. Fipon her return in the afternoon the car was missing and was reported by her to the police as stolen. The car belonged to Mr. Paul Forest, her father, and was given to Miss Forest with his permission and was in her care and custody at the time of the alleged theft. It’s value was in excess of $2,000. The car was returned to her by the Police Department. No permission was given by Miss Forest or her father to anyone else to drive the car.”

The police officer who arrested the appellant testified that he saw the appellant in “a 1965 Ford, Maryland license BZ 9262.” It was the automobile from which the appellant ran shortly before his arrest, and from which the brown bags and tubes of glue were recovered. The officer also testified without objection that the owner of the automobile was Paul Forrest and that Miss Forrest had custody of it when it was taken from the lot where it had been parked by her. In answer to an inquiry by the court, he gave, without objection, the serial number as 5N66C112345.

In view of this evidence the contention of the appellant that the State did not prove that the automobile owned by Paul V. Forrest was the automobile in which the appellant was seen is without merit.

Equally without merit is the contention that the evidence was not sufficient to convict the appellant of the larceny of the use of the automobile. The evidence showed that the automobile was taken without permission and the appellant was seated in it when it was observed in a location removed from where the rightful possessor had parked it. The evidence and inferences drawable therefrom were legally sufficient for the issue to go to the jury and for it to find the appellant guilty beyond a reasonable doubt. Agresti v. State, supra. We find no error in the denial of the motion for judgment of acquittal.

Judgments affirmed.

      . The appellant withdrew his pleas of not guilty by reason of insanity immediately prior to trial.


author: Per Curiam.

text:
    JOHN R. ERVIN v. STATE OF MARYLAND
    [No. 160,
    September Term, 1967.]

      Decided April 26, 1968.

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

      Morris Lee Kaplan for appellant.

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

Appellant, John R. Ervin, was convicted in the Criminal Court of Baltimore by Judge Albert E. Sklar, sitting without a jury, of storehouse breaking and sentenced to not more than two years in the Maryland Correctional Institution, consecutive with the sentence he is now serving in that institution. He appeals from the judgment of the court.

On or about November 6, 1966, the place of business owned by Frederick W. Cox, Sr., located at 1101 James Street, in Baltimore, and operated under the name of Fritz Auto, was broken into and among the items missing were a portable T.V. set, valued at $100.00; a checkwriter, valued at $75.00; a portable radio, valued at $10.00; and the balance of a check-book, valued at $7.50. A number of checks remained in the check-book at the time it was stolen.

On November 7, 1966, Officer Howard Saukitis, in company with Officer Fred Entz, was cruising the area of Poppleton and Booth Streets when he observed appellant and a companion standing in an alley, approximately fifty feet away. When appellant saw the police car, he threw several papers to the ground and fled with his companion. Officer Saukitis recovered the papers, which were found to be checks stamped with the firm name of Fritz Auto. The police officers, having received information prior thereto, that a burglary had taken place at Fritz Auto, pursued appellant and his companion and arrested them.

Following his arrest, appellant was taken to police headquarters where he gave a statement to the police. In the statement,, he admitted taking the items previously mentioned as missing from Fritz Auto and stated that he had them stored in the basement of an abandoned house where he was staying. He took the police to that location where the goods were recovered.

I

Appellant’s first contention is that his arrest was illegal since the police officers had no knowledge or suspicion of any felony committed by him, nor did they observe any misdemeanor committed in their presence.

There is no merit to this contention. When first observed by the two police officers, appellant and another man were acting in a suspicious manner. Upon observing the police, appellant was seen to throw some papers on the ground and he and his. companion fled. The officers picked up the papers which were checks stamped with the name of Fritz Auto, a place of business previously burglarized, and of which the police officers had prior information. With this information in hand, the officers pursued appellant and his companion and arrested them.

It is well established that a police officer may arrest without a warrant if the arresting officer has reasonable cause to believe that a felony has been committed and that the person arrested committed the crime. Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Gaudio and Bucci v. State, 1 Md. App. 455, 463, 230 A. 2d 700 (1967); Boone v. State, 2 Md. App. 479, 481, 235 A. 2d 567 (1967). Here there was probable cause for the arrest.

Moreover, the legality of the arrest is immaterial since no fruits of the arrest were received in evidence against appellant at the trial; the checks offered in evidence having been thrown away prior to his arrest. Hutchinson v. State, 1 Md. App. 362, 369, 230 A. 2d 352 (1967); Stackhouse v. State, 1 Md. App. 399, 405, 230 A. 2d 358 (1967).

Also, assuming the appellant had been illegally arrested, that fact alone would not render inadmissible a statement given by the appellant after his arrest, if shown to have been freely and voluntarily given. Boone v. State, 2 Md. App. 80, 93, 233 A. 2d 476 (1967).

II

Appellant next contends that the statement given by him to the police was not freely and voluntarily given.

Appellant does not deny that the Miranda warnings were given him prior to questioning by the police, and the record transcript discloses that the four safeguards therein required were complied with by the police officer before appellant was questioned. Robinson v. State, 1 Md. App. 522, 526, 231 A. 2d 920 (1967). Appellant claims his statement was not voluntary because the officers advised him that no charges would be placed against him if the goods were recovered. Both officers denied making any promises to appellant before he gave a statement, and specifically denied advising him that no charges would be placed against him if the goods were recovered. The court was under no obligation to believe appellant’s version as to what was said and reject the officers’ version. David v. State, 1 Md. App. 666, 669, 232 A. 2d 553 (1967). Appellant further complains that the officers failed to explain to him that anything he said might be used for him as well as against him. (Emphasis supplied.) There was no duty on the part of the police officers to advise appellant that anything he said might be used for him, and Miranda requires no such duty. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Appellant’s second contention has no merit.

III

Thirdly, appellant contends that the court erred in allowing appellant’s record into evidence when testifying on the issue of voluntariness of his statement.

There is no merit to this contention. In Boone v. State, 2 Md. App. 80, 103, 106, 233 A. 2d 476 (1967), this Court held that where a defendant is a witness in his own behalf in a criminal case, he thereby puts his character in evidence and he may be asked on cross-examination if he has been convicted of a crime, and such cross-examination is equally pertinent and allowable when the appellant testifies on the limited issue of the voluntariness of his statement.

IV and V

Appellant’s fourth and fifth contentions relate to the denial of appellant’s motion for a judgment of acquittal and the sufficiency of the evidence. These may be considered together.

In reviewing the sufficiency of the evidence in a non-jury trial, it is the function of this Court to determine 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. McFadden v. State, 1 Md. App. 511, 517, 231 A. 2d 910 (1967).

The recent possession of the stolen checks, together with appellant’s statement and the recovery of the stolen articles, were sufficient evidence to sustain the lower court’s findings. The weight of the evidence and the credibility of the witnesses are matters for the trier of facts to determine. Dunlap v. State, 1 Md. App. 444, 447, 230 A. 2d 690 (1967).

Judgment affirmed.


author: PER Curiam.

text:
    DOROTHY WATKINS v. STATE OF MARYLAND
    [No. 171,
    September Term, 1967.]

      Decided April 26, 1968.

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

      Michael Dee Kaplan, with whom was Morris Dee Kaplan on the brief, for appellant.

      William B. W'hiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles JR. Moylan, Jr., State’s Attorney for Baltimore City, and Howard D. Cardin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   PER Curiam.

Appellant, Dorothy Watkins, complains of her conviction in the Criminal Court of Baltimore by Judge Charles D. Harris, sitting without a jury, of the crime of robbery. Upon her conviction, she was sentenced to not more than eight years in the Correctional Institution for Women. She appeals from the judgment.

The testimony as set forth in the record discloses that the prosecuting witness, Henry Fagan, spent the evening of February 24, 1967, and the early hours of February 25th, at Buddy Brooks’ Bar, dancing and drinking with the appellant, Dorothy Watkins. After the band stopped playing around 1:00 a.m., appellant invited Fagan to her home for some drinks. He agreed and as they started for his car, she asked him to wait while she got some soda for her kids. When she returned, she was accompanied by a man she introduced as her “brother.” She asked if she could bring him along, to which Fagan consented. When the three arrived at appellant’s house, Fagan went upstairs to the bathroom, while appellant prepared the drinks. On his return to the living room, he was assaulted by both appellant’s “brother” and appellant. The “brother,” who was armed with a metal pipe, struck him repeatedly about the head, while appellant moved a Hi-Fi by the door to block his escape and assisted her “brother” by grabbing Fagan and taking his wallet containing $119.00 from his pocket. Bleeding profusely, Fagan finally made his escape and returned to the bar where he told his story to the police. Officers Barrick and Eckert accompanied by Fagan returned to appellant’s apartment. There they found blood on the floor and appellant attempting to clean up the blood spots with a bucket of water and a broom. Fagan’s empty wallet was found on the floor and a brown paper bag, containing Fagan’s identification card, license and other papers, was found on the television set. The “brother” had disappeared and could not be found. Fagan suffered a broken left arm and severe head injuries and was taken to the hospital. His money was never recovered.

I

Appellant’s first contention on appeal is that the court erred in allowing the State to amend the indictment.

Prior to the taking of testimony, the assistant State’s attorney made an oral request to the court to be permitted to amend the date of the crime set forth in the indictment from February 2, 1967, to February 25, 1967, the correct date of the alleged offense. He told the court that the offense report carried the date of February 25, 1967, and that the February 2, 1967 date must have been a clerical error. Appellant’s counsel objected to the amendment, although he admitted that he had access to the State’s information and was not deceived as to the correct date. He did not request a continuance and the court, being satisfied that the appellant knew the correct date, permitted the amendment.

Rule 714 a., Maryland Rules of Procedure provides that, “The court may permit an indictment or information to be amended at any time before verdict as to matter of form, but not as to matter of substance.” In Corbin v. State, 237 Md. 486, 489, 206 A. 2d 809 (1965), the Court of Appeals laid down the rule as to what is substance when it said: “As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else— including the order of arraignment and precise words, unless they alone will convey the proper meaning — is formal.”

Under the circumstances as presented here changing the date of the commission of the offense charged was a change in form and not in substance, since none of the essential elements of the offense were changed, and, under the circumstances, resulted in no prejudice to the rights of the appellant. We find that the amendment was properly allowed.

II and III

Appellant’s second and third contentions which relate to error on the part of the trial court to grant appellant’s motions for judgment of acquittal at the end of the State’s case and at the end of the entire case; and that the evidence was not sufficient to convict, may be treated together since both contentions are the same and relate to the same facts. McGlothlin v. State, 1 Md. App. 256, 261, 229 A. 2d 428 (1967).

In a non-jury trial this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside unless clearly erroneous. Jason v. State, 1 Md. App. 136, 138, 228 A. 2d 485 (1967); Stewart v. State, 1 Md. App. 309, 229 A. 2d 727 (1967); Michael v. State, 1 Md. App. 243, 229 A. 2d 145 (1967); Maryland Rule 1086.

In reviewing the sufficiency of the evidence in a non-jury trial, it is the function of this Court to determine 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. McFadden v. State, 1 Md. App. 511, 517, 231 A. 2d 910 (1967); Chittum v. State, 1 Md. App. 205, 209, 228 A. 2d 628 (1967).

Here there was ample evidence, if believed by the trier of the facts, to find the appellant guilty of robbery. The testimony of the prosecuting witness, Fagan, supported by the testimony of the two police officers who accompanied him to the home of the appellant after the robbery, was clearly sufficient to support the trial court’s finding that appellant, together with her “brother,” had robbed Fagan.

Judgment affirmed.