text:
    MAXIMILIANOE PAUL CHAVEZ v. DIRECTOR, PATUXENT INSTITUTION
    [No. 76,
    September Term, 1967.]

      Decided September 13, 1968.

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

This is an application for leave to appeal from an order of March 13, 1967 by Judge Joseph R. Byrnes, sitting in the Criminal Court of Baltimore, determining that applicant Maximilianoe Paul Chavez is still a defective delinquent as defined in Maryland Code, Article 31B, Section 5 (1967 Repl. Vol.).

Applicant was originally convicted in the Criminal Court ol Baltimore on April 17, 1962 of larceny and related crimes by Judge Shirley B. Jones and sentenced on that day to not more than three years in the Maryland State Reformatory For Males, the sentence to date from January 15, 1962. On February 10, 1964 an order was entered transferring the applicant to Patuxent Institution for examination as a possible defective delinquent. A medical report was filed on June 15, 1964 by the Director of Patuxent Institution recommending that the applicant be committed as a defective delinquent. On January 18, 1965 the applicant was found to be a defective delinquent by Judge Meyer M. Cardin and was then committed to Patuxent Institution. An application for leave to appeal was denied by the Court of Appeals on October 11, 1966. Chavez v. Director, 243 Md. 725.

An Interval Psychiatric Report, dated February 14, 1967, prepared by the institutional staff, recommended that the applicant continue to be classified as a defective delinquent. A psychiatric report of Philip F. Lerner, M.D., on March 3, 1967, concluded that the applicant was no longer classifiable as a defective delinquent. On March 13, 1967, petitioner was brought before Judge Joseph R. Byrnes, sitting without a jury, in a re-determination hearing and was found on that date to still be a defective delinquent.

In his application for leave to appeal the applicant contends that his recommitment to Patuxent Institution was against the weight and sufficiency of the evidence, and that the State did not prove by a preponderance of the evidence that the applicant was still a defective delinquent.

Defective delinquent proceedings, being civil in nature, require a fair preponderance of proof to sustain a finding, the burden of persuasion being upon the State to show that the party is or remains a defective delinquent. Dickerson v. Director, 235 Md. 668; Purks v. State, 226 Md. 43; Blizzard v. State, 218 Md. 384. The Court of Appeals has frequently indicated that the conclusions of the staff at Patuxent, including the opinion of the Institution’s director, constitute a sufficient basis to justify a finding that the applicant remains a defective delinquent. Alt v. Director, 240 Md. 262, 263. See also Murel v. Director, 240 Md. 258; Oppel v. Director, 237 Md. 611. It is also established that when the proceeding has been heard by the lower court judge without a jury, as is the instance here, unless clearly erroneous, the judgment of the lower court will not be set aside, due regard having been afforded the lower court to judge the credibility of the witnesses. Maryland Rule 1086; Brooks v. State, 3 Md. App. 485; Alt v. Director, supra, at 263, 264; Johns v. Director, 239 Md. 411.

In Duke v. Director, 232 Md. 651, the Court of Appeals said at pp. 652-653:

“The basis of the present application, which is supported by a brief of counsel submitted on his behalf, is that Judge Byrnes’ determination is alleged to be against the weight of the evidence. An examination of the record shows that the applicant has made substantial progress towards rehabilitation, but that there is a difference of opinion between the psychiatrist selected by him and the psychiatrist who is the Superintendent of the Patuxent Institution and other members of the Patuxent staff, including a psychiatrist who had very recently examined him, as to whether the applicant had so far recovered as to have ceased to be a defective delinquent. The Superintendent’s prognosis was ‘reasonably hopeful with continued supervision and treatment.’ * * *.
“After an extensive hearing Judge Byrnes concluded that the applicant was not yet ready for release and that he continued to be a defective delinquent. We find no sufficient basis in the record to warrant our holding that Judge Byrnes’ determination, which was primarily one of fact, was erroneous. * *

We find Duke completely apposite on the facts of the instant case and, accordingly, the application for leave to appeal is denied.

Application denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES M. CARTER v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 103,
    September Term, 1967.]

      Decided September 13, 1968.

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

Petitioner was convicted on nine indictments charging robbery (first count) and four indictments charging larceny (third count). He was sentenced by Judge Edwin Harlan, sitting in the Criminal Court of Baltimore, to a total term later determined to be nine years. No appeal was taken from his convictions.

Petitioner filed his petition under the Uniform Post Conviction Procedure Act on August 24, 1966. A hearing was held on March 10, 1967 before Judge James A. Perrott in the Criminal Court of Baltimore, and relief was denied in a memorandum and order filed on September 20, 1967. This application for leave to appeal was filed October 6, 1967.

Applicant raises the following contentions :

1. That the judgment, convictions and sentence aforesaid were imposed in violation of the Constitution and laws of the United States and of the Constitution and Laws of the State of Maryland ;
2. That the State of Maryland and State officials along with the Baltimore City Police Department denied the Petitioner his rights as guaranteed by due process of law;
3. That at the time of his arrest Petitioner was not represented by counsel nor was he given the opportunity of his rights to have counsel present at his interrogation.
4. That while under the influence of alcohol statements were forced from him which were later used to convict him;
5. That a confession was obtained from the Petitioner by the use of physical brutality, beatings, fear and pain and sustained and protracted questioning;
6. That Petitioner upon his arrest asked the desk sergeant to contact his mother at home, which was denied him;
7. That he was confronted with the statement of a co-defendant to induce him to confess and was not at anytime advised of his right to counsel, right to remain silent or that what he said could be used against him;
8. That there was an unreasonable search of Petitioner’s home “without showing owner a warrant to search home” which led to his conviction and violated his constitutional rights ;
9. “That the trial judge errored in using Petitioner’s illegal confession in evidence obtained by force from Central Police Department;”
10. That he was not brought before a judicial official until five days after his interrogation, thus denying him his constitutional rights;
11. That the Petitioner was denied a fair and impartial trial;
12. That Petitioner was “improperly (sic) prepare by counsel : Petitioner had no assistance in preparing an appeal or motion for a new trial. Counsel did not tell Petitioner of his rights to file a motion or appeal. Petitioner not having knowledge or a record of crime was awhere (sic) prepare by counsel, was taken advantage of. By his lack of education and ignorance of law.”;
14. That the illegal conviction, judgment and sentence he set aside and the Petitioner be released from illegal confinement.

The application is granted and the case is remanded as to contentions four, five, six, seven and nine; as to the remaining contentions, the application is denied for the reasons stated by Judge Perrott in his memorandum.

When answering contentions four, five, six, seven and nine, relating to the involuntariness of the confession, Judge Perrott relied on the transcript of the original trial as well as the testimony given by the petitioner at the hearing, without mentioning in his memorandum those facts which he found, and upon which he now relies in his finding, that the confession was given fully and voluntarily and without force or coercion.

While we agree with the basic standard used by the lower court, we do not feel that the lower court has sufficiently answered the allegations of involuntariness. Hargis v. Warden, 3 Md. App. 76, 80, 237 A. 2d 807. Moreover, the lower court treated contentions six and seven as waived because petitioner failed to raise these contentions at the trial. Under Md. Code (1967 Repl. Vol.), Art. 27. sec. 645A (c) * * * “an allegation of error shall be deemed to be waived, when a petitioner could have made, but intelligently and knowingly failed to make, such allegation * * *, at trial * * * unless the failure to make such allegation shall be excused because of special circumstances.” Here the lower court made no finding that the petitioner “intelligently and knowingly failed to make” such allegation at trial.

In view of Hargis v. Warden, supra, and the cases cited therein, we believe that the lower court should have made specific findings upon the contentions advanced.

It may be that the petitioner’s allegations will be shown to be completely without merit upon further inquiry. However, such must be shown since the issue has been raised below and must be passed on by this Court.

Application granted; case remanded for farther proceedings consistent with the views here expressed.


author: Ortii, J..

text:
    CHARLES J. BOUCHER v. WARDEN, MARYLAND PENITENTIARY
    [No. 120,
    September Term, 1967.]

      Decided September 13, 1968.

      Before Murphy, C.J., and Anmírson, Morton, Ortii, and Thompson, JJ.
   Ortii, J..

delivered the opinion of the Court.

On 29 March 1967 the applicant was found guilty of forgery and uttering by a jury in the Circuit Court for Montgomery County and sentenced to imprisonment for a term of 4 years on each offense, the sentences to run concurrently. On appeal this Court affirmed the judgments. Boucher v. State, No. 175, September Term, 1967, filed 29 February 1968, unreported. On 12 June 1967 the applicant, in proper person, filed a petition for relief under the Uniform Post Conviction Procedure Act. Counsel was appointed to represent him on 29 June. The State answered the petition on 10 July. On 11 July, by order of court, appearance of counsel was stricken and other counsel appointed. On 7 August another petition for relief under the Act was filed in proper person. By order of court of 21 September leave was granted upon motion made by the applicant to amend the petition of 12 June and withdraw the petition of 7 August. The amended petition was filed on 2 October and answered by the State on 20 October. The amended petition alleged that the applicant had been illegally tried, convicted and sentenced and deprived of his constitutional rights in that:

1) His “identity and whereabouts were revealed to the Montgomery County, Maryland Police Department by means of an unlawful arrest without a warrant by the Washington, D. C. Police Department”;
2) P'ruits of the illegal arrest were used to convict him;
3) filie identification of him at the trial by the manager of the food store where the forged check was uttered wras improper and prejudicial because the manager had been theretofore shown a single photograph of him taken by the Washington, D. C. Police Department. This was prejudicial: The manager was thereby informed that the applicant had been arrested on criminal charges in the District of Columbia; and the photographic procedure was impermissibly suggestive because only one and not several photographs had been shown. The applicant claimed that the perjudice was compounded “because the manager was told by one Montgomery County detective that the petitioner when arrested had in his possession some of the same type of checks that the Manager had cashed,” which was a “false statement.”

After an evidentiary hearing held 30 October in the Circuit Court for Montgomery County, Judge Plummer M. Shearin presiding, the relief prayed was denied. An order to that effect and accompanying memorandum was filed 1 December. The applicant, in proper person, filed a “Notice of Appeal” on 6 November, merely stating that he “appeals the decision of Judge Shearin in his post conviction hearing” but on 30 November an application for leave to appeal was filed on his behalf by his attorney containing allegations, the substance of which are summarized. The applicant “was not allowed to present evidence” concerning the allegations raised. He had summoned three witnesses. Two appeared. The third, a detective of the Washington, D. C. Police Department did not appear and a request for continuance to procure him was denied. The witnesses who appeared “were not permitted to testify as to the main points raised.” The manager who identified the applicant at the trial and a detective of the Montgomery County Police were not permitted to testify “concerning the circumstances” in which the manager had identified the applicant, objection thereto being-sustained on the ground that the question had been litigated at trial. “This was error because the question of prejudicial identification and the manner of identification had not been raised at trial and had not been waived.” A petition filed 11 October to employ a handwriting expert was denied. The reason for the request was to show that the applicant did not sign the check admitted against him. The applicant contends that the court erred in precluding the proffered testimony, in denying the continuance and in denying the petition for the employment of the handwriting expert. As a further reason wdiy the order should be reversed he alleges that “the State admitted that the cashier at the store who allegedly received the check in question from the defendant was unable to identify the defendant as the man who passed the check.” In a memorandum in support of the application for leave to appeal, counsel for the applicant asserts: “Neither the accused nor his trial attorney had known that fact at the time of trial and it only came out by accident at the post conviction hearing. The fact that the cashier could not identify the accused is exculpatory because, if offered in evidence, it reasonably might have cleared or tended to clear him of guilt in the eyes of the jury.” He claims that this was a suppression of material evidence exculpatory to him.

The hearing court found, “assuming, without deciding, that the arrest, search and seizure in the District of Columbia were unlawful, the petitioner has failed to sustain his claim that the fruits thereof were used to convict him in Montgomery County of the crime for which he is now incarcerated. It is apparently conceded that no physical evidence so obtained was used at the trial of the petitioner in this court.” Since no fruits of the arrest were received in evidence against the applicant, the question of the legality of the arrest was immaterial. Ervin v. State, 4 Md. App. 42; Hutchinson v. State, 1 Md. App. 362. An illegal arrest does not affect the jurisdiction of the court, is not a ground for dismissing an indictment or information, and does not preclude trial and conviction for the offense. Nadolski v. State, 1 Md. App. 304. The applicant’s “identity and whereabouts” were not revealed to the Montgomery authorities by a search within the concept of “unreasonable search and seizure” as it relates to physical evidence obtained. The identification of an accused is not “tangible” evidence which is the fruit of an unlawful search and the doctrine of Wong Sun v. United States, 371 U. S. 471, even if applicable in such circumstances as here presented, does not control prosecutions in this State. Veihmeyer v. State, 3 Md. App. 702; Tender v. State, 2 Md. App. 692. Therefore the hearing court did not err in precluding evidence as to the legality of the applicant’s arrest. And since it appears from the Application for Leave to Appeal that the testimony of the missing witness was desired on this issue, the court did not err in refusing a continuance to obtain his testimony.

We find no abuse of discretion in the denial by the lower court of the petition to employ a handwriting expert in an effort to prove that the check uttered was not signed by the applicant. The sufficiency and weight of the evidence is no ground for post conviction relief. Nixon v. Director, 1 Md. App. 14. And we found on direct appeal that the evidence adduced at the trial on the merits was sufficient to sustain the conviction so the matter has been finally litigated. Md. Code (1967 Repl. Vol.) Art. 27, § 645A (b).

The allegations with respect to the identification of the applicant present more difficulty. At the trial a manager of the store where the check was cashed testified that one of his duties was to approve checks above a certain limit, that the applicant came to him and inquired if he would accept a check, which the applicant exhibited, that the manager told him it would be accepted if proper identification were shown, that the applicant upon the purchase of merchandise presented to a cashier the check endorsed “John D. Webb” and an Encyclopedia Britannica identification card with the picture of the applicant on it and the name John D. Webb, purporting Webb to be an employee oí that company, that the cashier submitted the check to him and he approved it. Without objection being made, he identified the applicant as the one who presented the check and identification card. He also testified that he had previously identified a police picture as one of the applicant. The cashier wTas not called as a witness.

The applicant contends that the hearing judge precluded evidence as to the circumstances surrounding the in-court identification, sustaining objections thereto on the ground that the matter had been litigated at trial. In his memorandum opinion the hearing judge disposed of the allegations with respect thereto by stating “[I]t appears that this issue w^as raised at the trial and was fully litigated thereat. The petitioner may not use the Post Conviction Relief Act as a vehicle for relitigating that question.” We do not agree that the issue was finally litigated. An allegation of error is deemed to be finally litigated when the Court of Appeals or this Court has rendered a decision on the merits thereof either on direct appeal or upon consideration of an application for leave to appeal filed under the Post Conviction Act. As to a court of original jurisdiction it is only when such court, after a hall and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of coram nobis that an allegation of error is deemed finally litigated, and then only when such decision is not clearly erroneous. Md. Code (1967 Repl. Vol.) Art. 27, § 645A (b). The question here is whether the allegation of error as to the identification may be deemed to have been waived by the applicant’s failure to make it at trial or on direct appeal. If he could have so made it but “intelligently and knowingly” failed to do so, it is deemed to have been waived unless the failure shall be excused because of special circumstances. And there is a rebuttable presumption wdien he could have so made it and did not, that he “intelligently and knowingly” failed to make it. Code, Art. 27, § 645A (c). The Uniform Post Conviction Procedure Act thus incorporates the principles enunciated in Fay v. Noia, 372 U. S. 391, Henry v. Mississippi, 379 U. S. 443 and Townsend v. Sain, 372 U. S. 293. See Stros nider v. Warden, 245 Md. 692. In his petition under the Act the applicant asserted no special circumstances to excuse his failure to make the allegation of error as to the identification and presented no facts to overcome the presumption that he intelligently and knowingly failed to make it. But he now urges that for the first time at the post conviction hearing that by the admission of the State, he learned that the cashier, not called as a witness by the State at the trial on the merits, was unable to identify him. He claims that neither he nor his trial attorney “had known that fact at the time of trial and it only came out by accident at the post conviction hearing.” He urges also that the State withheld or suppressed this evidence. If there had been such withholding or suppression of evidence and the evidence was found to be significant and material, the applicant might be entitled to relief. State v. Tull, 240 Md. 49; Tucker v. Warden, 243 Md. 331. But the mere failure of the State to call a witness does not amount to suppression of evidence where the defendant had full opportunity to call the witness. See Howington v. Warden, 234 Md. 610. We are unable to determine these matters from the record before us. We think that the application for leave to appeal must be granted and the case remanded for further proceedings as follows:

1) The determination by the lower court of the question as to the suppression of evidence. If it finds that significant or material evidence was suppressed by the State, the applicant would be entitled to a new trial. If it finds that such evidence was not so suppressed, then and in that event-—
2) The lower court should determine whether the allegations of error in regard to the in-court identification of the applicant are deemed to have been waived by the intelligent and knowing failure of the applicant to make them at trial or on direct appeal. We note that the burden of proving the existence of special circumstances to excuse the failure to make the allegations and to rebut the presumption that he intelligently and knowingly failed to make them are upon the applicant. If it finds that the allegations of error were waived the applicant is not entitled to relief. If it finds that they were not waived, then and in that event-—
3) The lower court should determine whether the in-court identification of the applicant was proper or whether it was so tainted by an extra-judicial identification or other circumstances as to render it inadmissible. See Rath v. State, 3 Md. App. 721. If the in-court identification was proper the applicant is not entitled to relief. If such identification was improper, the applicant is entitled to a new trial.

Of course the applicant and the State should be afforded the opportunity to present such evidence as may be relevant and material to the issues before the lower court in the course of the proceedings.

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

      . At the hearing Judge Shearin denied five petitions for writ of habeas corpus previously filed by the applicant “since petitioner, through his counsel, concedes, in effect, that the petitions for Writs of Habeas Corpus state no grounds upon which this Court could grant relief.”

      . At the hearing the applicant moved to set aside his conviction on the ground the State had not answered his original petition within 15 days. The court denied the motion because the applicant failed to show any prejudice by the delay in answering and because the petition to file an amended petition, which was granted, waived any right to object to the failure to answer the original petition within the time prescribed. Although Md. Rule BK43a states that the State’s Attorney shall respond by answer or motion, within 15 days of the docketing of the petition, or within such further time as the court may order, it provides no sanction for failure to comply. And the applicant must show prejudice by the failure of the State to comply in proper time. Bonner v. Director, 237 Md. 445. In any event the applicant did not present this matter in his application for leave to appeal and thus is deemed to have abandoned it.

      . The provisions of Code, Art. 37, § 645A (d) are not applicable in the instant case.


author: Orth, J.,

text:
    LEONARD FELDMAN v. DIRECTOR, PATUXENT INSTITUTION
    [No. 131,
    September Term, 1967.]

      Decided September 13, 1968.

    Before Murpiiy, C.J., and Anderson, Morton, Ortii, and Thompson, JJ.
   Orth, J.,

delivered the opinion of the Court.

On 18 December 1964 the applicant pleaded guilty to a charge of assault in the Circuit Court for Baltimore County, the case was submitted on a statement of facts, and the court rendered a verdict of guilty. A sentence of imprisonment for a term of 2 years was imposed. On 21 April 1965 upon petition and order pursuant to Md. Code (1967 Repl. Vol.), Art. 31B, § 6, he was transferred to the custody of the Director of Patuxent Institution for examination for possible defective delinquency. He “steadfastly denied any kind of medical, psychiatric or psychological evaluations be done on him” until 6 October 1965. Upon examination at that time it was the opinion of the staff of the Institution that he was a defective delinquent, and the staff expressed the same opinion after further examination in an interval note under date of 27 September 1966. Hearing was set for October 1966 and postponed at request of the applicant’s counsel for the reason that a report from a psychiatrist was not completed. Hearing was set and postponed several times thereafter. Although the reasons for the postponements are not clear from the record, it appears that the applicant preferred other counsel to represent him, new counsel was appointed and the applicant was examined by two privately employed psychiatrists. The case came on for hearing on 8 November 1967 in the Circuit Court for Baltimore County before a jury which rendered a verdict on 9 November that the applicant was a defective delinquent. Application for leave to appeal was filed in which the following allegations were made:

I. The lower court erred in refusing the applicant’s request for instructions that:
1) “Mere criminal activity will not support a commitment to Patuxent Institution.”
2) The jury “must find that he is not a defective delinquent if the evidence shows that Leonard Feldman has the ability to live in reasonable computability with his fellow men.”
3) “The burden is on the State to prove the convictions enumerated in Article 3IB Section 6 of the Annotated Code of the Public General Laws of Maryland were valid.”
II. The applicant was denied the right to a fair and impartial jury by the presence of a guard during the hearing.
III. Psychiatric and psychological reports prepared by persons who were not called as witnesess were improperly admitted in evidence.
IV. “The defective delinquency law as applied to this Defendant is unconstitutional.”

I

The court in its discretion “may instruct the jury upon the law, either by granting written instructions or by giving instructions of its own on particular issues or on the action as a whole, or by several or all of these methods, but need not grant any requested instructions if the matter is fairly covered by instructions actually given.” Md. Rules, 554b. The court in its charge to the jury gave them the statutory definition of defective delinquency (Md. Code, supra, Art. 3IB, § 5) and provided them with a written copy thereof for use in their deliberation. We have carefully reviewed the charge and feel that it fairly covered the matters in requested instructions 1) and 2).

With regard to requested instruction 3), “* * * under § 6 of Art. 31B there can be no referral to Patuxent for a diagnosis of possible defective delinquency until one or more of the five prerequisites of conviction for a specified crime therein set out exists * * *.” Director v. Daniels, 243 Md. 16, 24. Therefore, if none did exist when the applicant was referred, the lower court would have been without jurisdiction to entertain the determination of his defective delinquency. The applicant was referred to Patuxent for examination by order of the court upon petition of the Department of Correction. There was in evidence through the testimony of a member of the staff of Patuxent that the applicant had been convicted of assault arising from hitting an attendant with a hard object while attempting to escape from the Baltimore County jail, for which offense he was sentenced to imprisonment for a term of two years, that he had been convicted of burglary and given a sentence of 5 years, which sentence was suspended with probation, the terms of which he broke, and that he had been convicted in the Circuit Court for Baltimore County of tampering with an automobile and petty larceny, sentenced to two years and granted probation. At the close of the evidence offered by the State and at the close of all the evidence the applicant’s counsel moved for a directed verdict, one of the grounds for which was “that the State has offered no evidence showing the past criminal record of Leonard Feldman, and that the only information on this report has been gleaned from statements prepared by the Patuxent Institution professional staff which do not accurately reflect either the offenses of which Leonard Feldman has been convicted or the sentences imposed thereunder.” The motions were denied. In the application for leave to appeal the applicant does not contest the fact of these convictions, which meet one or more of the prerequisites of conviction for a specified crime set out in § 6 of Art. 3IB, nor does he claim that the motions for a directed verdict were improperly denied. He alleges, however, that the lower court erred in not granting a request to instruct the jury that the burden was on the State to prove that the convictions were valid. We find no error in the refusal to grant the requested instruction. We do not think that the validity of a conviction by reason of which a person is referred for examination for possible defective delinquency is a matter for the jury at a defective delinquency hearing. When the determination of a person’s defective delinquency is by a jury, the issue is whether the person is a defective delinquent as defined by § 5 of Art. 3IB and the court shall direct such jury to so find specially by its verdict. Art. 31B, § 8. Since there can be no hearing until a report has been filed stating that the person is a defective delinquent and since there can be no report until an examination has been made under § 7, State v. Musgrove, 241 Md. 521, and since there can be no examination until the person has been referred to Patuxent, and since there can be no such referral until there has been conviction of crime as set forth in § 6 (a), the validity of such conviction, when the question is properly raised, is a matter of the jurisdiction of the hearing court, to be determined by it and not by the jury. In the instant case the applicant did not raise the point at the hearing that the convictions by reason of which he was referred for diagnosis were invalid, there was no evidence before the court on the matter and the court did not try and decide it. That point is not properly before us. Md. Rules, 1085. Nor do we think, when the point is not raised, that the State, having shown that a person has been convicted and sentenced in a court of this State for a crime or offense coming under the categories named in § 6 (a), is impressed with the burden of proving the convictions to have been valid. Of course, while a person committed to Patuxent may not have a retrial on an issue of guilt or innocence of the crime for which he was convicted, “* * * he may raise questions (under post conviction procedures) concerning the jurisdiction of the trial court, or alleged infractions of constitutional rights that may render the trial a nullity.” Simon v. Director, 235 Md. 626. And as “[v]alid convictions of one or more of the offenses enumerated in the Act have been deemed by the Legislature to be an essential condition before commitment to Patuxent can be ordered,” Gee v. State, 239 Md. 604, 610, Wise v. Director, 1 Md. App. 418, he may raise such questions, for the determination of the court, in an initial hearing on defective delinquency. But when he does, he must produce evidence, as in a post conviction hearing, sufficient to make a ■ prima jade showing that the conviction was invalid, then making it necessary for the State to rebut that evidence. As in any event, the matter posed by the applicant’s requested instruction 3) was not an issue for the jury, the lower court did not err in refusing to grant it.

II

After the jury was empaneled and sworn, counsel, out of the presence of the jury, requested that the guard from Patuxent Institution take “an appropriate seat and not to hover over Mr. Feldman during the course of these proceedings.” The court with the concurrence of the guard directed that the guard “be seated at a point * * * within the rail,” which action satisfied the applicant. Subsequently during the hearing the applicant testified on his own behalf. After he left the stand, his counsel moved for a mistrial, out of the presence of the jury, “on the basis that the sergeant of the Patuxent guards approached (the applicant) and stood immediately behind him at that time when the defendant left the witness stand in the direct presence of the jury in defiance of an order and instruction by the Court that the guard remain seated immediately in front of the court rail at all times while in the presence of the jury. The effect of this was to prejudice the rights of the defendant and to create an impression in the mind of the jury that he is at this time, today, a dangerous, hostile individual.” The presence of guards in the courtroom is generally a matter in the sound discretion of the trial court, but an abuse of this discretion “might well reach a point where the trial is a farce and a fair trial impossible.” Odell v. Hudspeth, 189 F. 2d 300, 302 (10th Cir.), cert. denied, 342 U. S. 873 (1951). In the instant case the trial court authorized the presence of the guard after the matter was called to its attention and directed the place he was to be seated with no objection interposed by the applicant. We find no abuse of discretion by the court in permitting the presence of the guard. See McCloskey v. Boslow, 349 F. 2d 119 (4th Cir.) 1965. Nor do we find error in the denial of the motion for a mistrial. In denying the motion the court said:

“The motion is denied because the circumstances outlined by counsel occurred under these circumstances:
The Patuxent inmate himself was upon the stand at the time the recess was announced. It should be obvious, I think, to the guard that there would be movement from the court when the court made comment that a brief recess would occur. The jury are conscious of the fact that Patuxent Institution is an institution where persons of established or suspected defective deliquency are in attendance, and the action of the guard, in the judgment of the court, was no more than his duty requires. The witness having been on the stand, he elected to follow the course of getting up to pursue his duty as a guard. I think that this can’t influence the jury in any way. The jury are mindful that this is an institution wherein the prisoners are in confinement. This has been made very clear to them, and I am sure that the jury understands that it is necessary for the guard to perform his custodial duty.”

We agree.

Ill and IV

These allegations have no merit. It has been clearly established that such reports as are here challenged are admissible and that the Defective Delinquent Act is constitutional. Director v. Daniels, supra. See Withers v. Director, 244 Md. 702; Wise v. Director, supra.

Application denied.

      . The record does not contain the requested instructions but they are set forth in the application for leave to appeal. The transcript of the trial shows that after the charge to the jury, counsel excepted “to the court’s refusal to grant defendant’s instruction one, two and three in the form as submitted by the defendant * * *.” He also requested a further instruction as to intellectual deficiency and emotional unbalance which the court agreed to give the jury. As to the instructions which the court refused to give, it said:
      “ * * * With respect to the other points made by counsel for the defendant, the court believes that its charge incorporates the generality of the intent and purpose of the requested instructions, the court believes that if they were given in the form in which counsel requested them, they would tend to distort the conditions that are required in connection with the decision of the jury * * *.”

      . The Defective Delinquent Act does not extend to or affect any case in a juvenile court or any person involved in such case, or any case in the court of a magistrate or justice of the peace or any person involved in such case, § 15 (except as in said sections provided). See Height v. State, 225 Md. 251.

      . In Naill v. Director, 288 Md. 631, leave to appeal was sought from a re-determination of defective delinquency under Art. 3lB, § 10. The applicant contended that the evidence before the lower court in the original determination that he was a defective delinquent was insufficient to permit such a finding because the crime for which he was convicted was not of a violent nature under the Act. The Court said, “Whether or not the original commitment was proper is not the subject of re-determination proceedings under the Act; that question cannot be raised in a proceeding for re-determination of defective delinquency.” p. 632. But compare Director v. Daniels, 243 Md. 16. Leave to appeal from a re-determination of defective delinquency had been granted and the case remanded for further proceedings in Daniels v. Director, 238 Md. 80. On the hearing on remand it was discovered for the first time that, contrary to the docket entries in his criminal trial which showed a plea of guilty to storehouse breaking and larceny, Daniels had actually then entered a plea of guilty only of petty larceny which was the basis of his referral to Patuxent for diagnosis of possible defective delinquency. The hearing court ordered that Daniels be released for the reasons that he had been improperly found to be a defective delinquent in that the supposed basis for his referral did not exist and he had served all the sentences imposed upon him. It said that if legally necessary it would treat Daniel’s petition for re-determination as one for the writ of habeas corpus. The Court of Appeals agreed that he had to be released. 243 Md. at 24.


author: Morton, J.,

text:
    JAMES EDWARD ROBINSON v. WARDEN, MARYLAND PENITENTIARY
    [No. 163,
    September Term, 1967.]

      Decided September 13, 1968.

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

delivered the opinion of the Court.

The applicant was convicted of murder in the first degree on 18 December 1953 at a court trial in the Criminal Court of Baltimore. A motion for a new trial filed by him the same day was withdrawn on 11 February 1954 and he was sentenced to imprisonment for the balance of his natural life. The applicant did not appeal from the judgment. A petition for relief under the U.P.C.P.A. was filed on 15 September 1965 and an order of the Criminal Court of Baltimore of 2 November 1965 authorized that the petition be withdrawn without prejudice as requested by the applicant after conferring with his court appointed counsel. On 6 October 1967 the applicant again filed a petition for relief under post conviction procedures and relief was denied by Judge Meyer M. Cardin after a hearing in the Criminal Court of Baltimore at which the applicant was represented by appointed counsel. He seeks leave to appeal from the denial of relief.

There was before the lower court five allegations presented in the petition and one allegation raised during the hearing:

I. A confession was improperly admitted in evidence against the applicant;
II. The grand jury which indicted the applicant was unconstitutionally impaneled;
III. The applicant was arrested three days after the crime without a warrant ;
IV. The grand jury which indicted the applicant “was not from a true and honest cross-section of the community” ;
V. Without the confession there was not sufficient evidence to sustain the conviction;
VI. The applicant should not have been tried because he was “non compos mentis.”

Allegations II-VI, inclusive are without merit. In allegation II the applicant relies on Schowgurow v. State, 240 Md. 121, but the legal principle enunciated in Schowgurow is not applied retroactively, except for convictions which had not become final before rendition of the opinion, 240 Md. at 132, and the applicant’s case became final before the opinion was rendered. The applicant supports allegation III only by stating that his arrest was not made under authority of a warrant. A warrant-less arrest for either a felony or a misdemeanor is valid under proper circumstances. Robinson v. State, 4 Md. App. 515. In any event, an illegal arrest does not affect the jurisdiction of the court and does not preclude a trial and conviction. Nadolski v. State, 1 Md. App. 304. Further, the applicant does not contend that “fruits” of the arrest were received in evidence against him, and if they were not, the legality of the arrest was immaterial. Hutchinson v. State, 1 Md. App. 362. And if they were, the hearing court found that the point was not raised at the trial on the merits. Md. Rules 1085. An objection to illegally seized evidence may be waived by failure to make timely objection. Gaudio and Bucci v. State, 1 Md. App. 455. With regard to allegation IV the hearing court stated that it was “totally unsupported.” See Watson v. Warden, 2 Md. App. 134; Grayson v. State, 1 Md. App. 548. Allegation V goes to the sufficiency of the evidence, which is not available under post conviction procedures. Nixon v. Director, 1 Md. App. 14. Of course, if the confession be found to have been improperly admitted in evidence, and the error not waived, the applicant would be entitled to a new trial in any event. The hearing court resolved allegation VI by referring to the report submitted by the Chief Medical Examiner of the Supreme Bench under date of 15 February 1954, almost two months after the verdict, in which it was the opinion of the examining physician that the applicant must be considered a responsible agent. But the case went to trial on the merits under a plea of not guilty, there being no plea alleging that the applicant was insane at the time of the commission of the alleged crime and/or that he was insane at the time of the trial, as required when it is desired to interpose the defense of insanity. Md. Code, Art. 59, § 7, then in effect. The issue not being tried and decided at the trial, it would not have been available on direct appeal, Md. Rules 1085, and is not available under post conviction procedures.

With regard to allegation 1 the applicant alleged in his petition for relief that the confession used against him “was obtained in violation of the Due Process clause of the Fourteenth Amendment of the United States Constitution.” The test by which the admissibility of the applicant’s confession is measured is whether it was freely and voluntarily made at a time when he knew and understood what he was saying. Fisher v. State, 1 Md. App. 505. Compliance with the procedural safeguards of Miranda v. Arizona, 384 U. S. 436 was not required to render it admissible since the trial of his case began prior to 13 June 1966 and Miranda is not retroactive. Johnson v. New Jersey, 384 U. S. 719; Boone v. State, 3 Md. App. 11. But the Supreme Court, Clewis v. Texas, 386 U. S. 707, the Court of Appeals, Cunninghams v. State, 247 Md. 404, and this Court, Keller v. State, 2 Md. App. 623 have looked to the totality of the circumstances when examining a confession. In support of his allegation the applicant claimed that he was 23 years of age (Age may be an important factor but the confession of an accused of much more tender years is not made involuntary because of age itself. State v. Hance, 2 Md. App. 162 and cases cited) ; that he was “unable to read or write” (This may be a factor to be considered but the applicant does not contend that this disability, assuming it to be factually correct, prevented him from knowing and understanding what he said); that he was born in a mental hospital (This fact, if true, is of no significance without more); that he was found to be mentally incompetent by doctors who examined him before trial (The record discloses no examination prior to trial. He was examined after verdict and found to be a responsible agent); that he was “interrogated for about three (3) days, even after giving a confession” (Interrogation after giving the confession is not relevant to its voluntariness. He makes no claim that prolonged interrogation forced the confession) ; and that he was not told he had a right to remain silent and that statements could be used against him at trial (Miranda was not applicable to him). The hearing court apparently considered the allegation as going only to the informing of the applicant as to his “available rights”. It considered only this portion of the confession itself in holding that the allegation “lacked validity”:

“As Lieutenant Kummer has already told, none of us are making any threats to you and we can’t make any promises of any kind to you. What you say can be used either for or against you in court. Do you understand that ?
A. Uh! Huh!
Q. Are you willing to answer my questions about this shooting ?
A. Yes, Sir!”

It said that “the only inference that can be drawn is that the petitioner was advised of all available rights and these were knowingly and intelligently waived.” But the statement could only have come into evidence properly after a finding by the trial court that it was freely and voluntarily made and we do not feel that portions of it can support an inference to show its voluntariness — a matter which must be determined preliminarily to its admission. See Haley v. Ohio, 332 U. S. 596. Nor, in any event, do we think that the quoted portions of the confession are sufficient to show that the applicant knowingly and intelligently waived his rights. See Johnson v. Zerbst, 304 U. S. 458. However, we need not reach the question of the voluntariness of the confession vel non because we find that the allegation of error with regard thereto was waived. The applicant took no direct appeal from the judgment and in his petition presented no special circumstances to excuse the failure to raise the allegation on direct appeal nor did he allege facts to overcome the presumption that he knowingly and intelligently failed to raise it. Md. Code (1967 Repl. Vol.) Art. 27, § 645A (c). The provisions of § 645A (d) are not here applicable. Therefore, allegation I affords him no relief and we deny the application. In so doing we distinguish Hargis v. Warden, 3 Md. App. 76 where we granted the application and remanded the case for specific fact findings. Hargis, 15 years of age, convicted of murder in the first degree and armed robbery and sentenced to life imprisonment and 20 years to be served concurrently, presented a specific charge in his petition of the inducement that “the confession would not hurt him” but “would help him in the eyes of the Judge” which was not met by the hearing court. In the instant case the applicant makes no specific charge that his confession was procured under a hope of favor or advantage if made, or fear or harm or disadvantage of some kind if withheld, nor does he allege facts sufficient to show that the confession was involuntary under the totality of the circumstances. And in Hargis we recognized the question of waiver, stating that “an inquiry into this issue by the lower court may be unavoidable.” 3 Md. App. at 81. See State v. Hance, supra. In the posture of the applicant’s petition we do not feel compelled to remand the case for further proceedings either on the issue of the voluntariness of the confession or the issue of waiver. Jones v. Warden, 2 Md. App. 343.

Application denied.

      . See Ch. 709, Acts of 1967; Strawderman v. State, 4 Md. App. 689.


text:
    CARL S. FIELDS v. DIRECTOR, PATUXENT INSTITUTION
    [No. 165,
    September Term, 1967.]

      Decided September 13, 1968.

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

On 9 December 1963 the applicant pleaded guilty to a charge of storehouse breaking with intent to steal goods of the value of less than $100 in the Criminal Court of Baltimore. The court rendered a verdict of guilty and imposed a sentence of imprisonment for a term of not more than 18 months. He was referred to Patuxent Institution on 9 March 1964 and a report filed 7 July 1964 recommended that he be committed as a defective delinquent. He was found to be a defective delinquent by Judge Meyer M. Cardin presiding in the Criminal Court of Baltimore without a jury on 8 March 1965 and committed to Patuxent Institution. He did not apply for leave to appeal from that determination. On 16 March 1967 he filed a petition in proper person for a hearing to have his defective delinquency redetermined. On 28 August 1967 after a hearing in the Criminal Court of Baltimore before Judge James K. Cullen, presiding without a jury, it was redetermined that he was a defective delinquent and he was recommitted to Patuxent Institution. On 18 September 1967 he filed an application for leave to appeal in proper person complaining that a requested postponement for 10 months of his redetermination hearing had been denied by the court. Counsel was appointed to represent him in connection with the application and on 23 January 1968 an “Application for Leave to Appeal” was filed on his behalf by his counsel alleging three errors:

1) there was no legally sufficient evidence to support the finding;
2) the original sentence had “long since expired”;
3) “many of the records were prepared by unqualified persons.”

We shall treat it as an amendment to the application filed in proper person. The docket entries show under date of 26 January 1968: “Application for Leave to Appeal filed,” but this document is not in the record. Counsel for the applicant filed a one page “Memorandum in Support of Application for Leave to Appeal” on 24 January 1968. In it he re-states the allegations of error set forth in the document of 23 January but enlarges on the first allegation merely by stating that the “only witness to be produced by the State was Dr. Harold Boslow, who read from various records prepared by members of the Staff at the Patuxent Institution; some reports were prepared by social workers and some by Dr. Boslow himself,” and by asserting that the applicant testified that “he felt he had served his original sentence and that he had improved sufficiently to function normally in society.” It is also stated in the memorandum that the applicant “seeks an Appeal on the theory that he is being incarcerated at Patuxent in the same manner as any prisoner at the Maryland Correctional Institution where he was originally sentenced” but he does not elaborate on this statement. No authorities are cited in the memorandum.

Assuming that the matter of denial of the postponement of the hearing is properly before us, it appears that the request was made as a result of a report of examination dated 1 May 1967 submitted by a private psychiatrist in which it was recommended that the hearing be deferred for a period of about 8 to 10 months. The doctor said: “He has improved a great deal since his stay at Patuxent Institution, but I do not believe that his improvement has reached a level that he can be discharged * * *. There is an excellent chance that his improvement will continue and at that time it would be sufficient to prove that he wouldn’t be a danger to himself or to others if and when released.” We cannot say that the lower court abused its discretion in refusing the postponement. The future improvement of the status of the applicant was a matter of conjecture at best. Green v. Director, 3 Md. App. 1, 4.

The redetermination hearing now in question wTas held before the court sitting without a jury, so that the judgment of the lower court will not be set aside on the evidence unless clearly erroneous. McDonough v. Director, 3 Md. App. 539, 541. It is apparent from a review of the evidence that the lower court’s finding that the applicant was still a defective delinquent was not clearly erroneous.

That the original sentence imposed on the applicant had “expired” is of no relevance. Md. Code (1967 Repl. Vol.) Art. 31B, §§ 1-19 make it clear that the Legislature intended that one who came within the definition of a defective delinquent must remain incarcerated until his demonstrated “persistent aggravated antisocial or criminal behavior”, caused by mental deficiency or emotional unbalance or both and constituting an actual danger to society was not, by reason of passage of time or treatment or both, likely to reoccur and, therefore, his release was “reasonably safe for society” (§ 5). Barnes v. Director, 240 Md. 32. See Director v. Daniels, 243 Md. 16, 47; Boitnott v. Director, 1 Md. App. 10; Sas v. Maryland, 334 F. 2d 506 (4 Cir. 1964).

The allegation that “many of the records were prepared by unqualified persons” is a bald assertion without supporting facts in the record and as such affords no ground for appeal. Kroneburg v. Director, 244 Md. 734. It is not improper to admit in evidence statements and opinions of staff members of Patuxent -Institution because they were partly based on reports of others. McDonough v. Director, supra, 544.

We do not agree with the applicant’s bald assertion that he is incarcerated at Patuxent Institution in the same manner as any prisoner in a penal institution. It has been established that the sole objective and purpose of the Defective Delinquency Act was not penal but an effort to segregate a known group of mentally disordered people who are found guilty of criminal acts by confining them in an institution housing only members of their group in a sole effort to protect society and provide treatment to effect, if possible, a cure of the illness. Director v. Daniels, supra, at 38.

Application denied.

      , Code, Art. 3lB, § 9 (b) provides that when a defendant is determined to be a defective delinquent and committed to Patuxent, the sentence for the original criminal conviction, or any unexpired portion thereof, shall be and remain suspended. He shall no longer be confined for any portion of said original sentence, except as provided in the Article, but shall remain in the custody of Patuxent. But he receives full credit against a sentence for time spent in Patuxent. Caparella v. State, 214 Md. 355.


text:
    CHARLES ANGUS ALLEN v. DIRECTOR, PATUXENT INSTITUTION
    [No. 49,
    September Term, 1968.]

      Decided September 13, 1968.

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

The application of Charles Angus Allen for leave to appeal from an order of Judge James A. Perrott, presiding in the Criminal Court of Baltimore, denying relief prayed in his second petition under the Uniform Post Conviction Procedure Act is denied for the reasons set forth in the memorandum of Judge Perrott accompanying the order.

We note, however, that by the provisions of Md. Code (1967 Repl. Vol.) Art. 27, § 645A (b) an allegation of error is deemed to be finally litigated “when the Court of Appeals or Court of Special Appeals has rendered a decision on the merits thereof, either on direct appeal or upon any consideration of an application for leave to appeal filed pursuant to § 645-1 of this sub-title; or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of coram nobis, unless said decision upon the merits is clearly erroneous.” Thus, the allegations of error here were not finally litigated by the decision on the merits thereof by the Criminal Court of Baltimore under the first petition under U.P.C.P.A., there being no application for leave to appeal therefrom.

Application denied.


text:
    DANIEL CHRISTOPHER KINCER v. STATE OF MARYLAND
    [No. 266,
    September Term, 1967.]

      Decided September 16, 1968.

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

      Donald S. Hurwitz for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant was convicted of receiving stolen goods at a court trial in the Circuit Court for Anne Arundel County and committed to the custody of the Commissioner of Correction for a term of 3 years.

The elements of the crime of receiving stolen property as stated in Dixon v. State, 1 Md. App. 623, 625, are:

1) the property must be received; and
2) it must, at the time of its receipt, be stolen property; and
3) the receiver must have guilty knowledge that it is stolen property; and
4) his intent in receiving it must be fraudulent.

Elements 1) and 2) were proved by stipulation and are not in issue. But the appellant contends on appeal from the judgment that elements 3) and 4) were not proved and therefore the lower court erred in rendering a verdict of guilty.

Robert H. Walker testified that he purchased a new 1966 fiberglass hull, inboard motor, Thunderbird Cruiser boat, 22 feet in length, manufacturer’s hull No. 66261 on April 19, 1966 at a price of $6230.25 and obtained a certificate of title Serial No. 431654, boat No. Md. 56K from the State of Maryland Department of Chesapeake Bay Affairs under date of May 4, 1966. He kept the boat at the Port Tobacco Marina and between June 19 and June 26, when he was on vacation, it “disappeared.” He had not given anyone permission or authority to take the boat or “use it in any way.” He notified the owner of the Marina, the Maryland State Police and the “Department of Tidewater Fisheries.” He next saw it about January 17, 1967 at Knott’s Marina in Anne Arundel County.

Trooper First Class Joseph L. Sommers, Jr. of the Criminal Investigation Division of the Maryland State Police received a call from Walker on June 26, 1966 that the boat was missing and he went to the Port Tobacco Marina and observed that the slip in which the boat had been moored was empty. A search of the Marina failed to locate it. He notified the Department of Tidewater Fisheries and the Maryland State Police, giving a description of it and the boat number and the serial number. About January 16, 1967 he went to the Department of Chesapeake Bay Affairs and examined boat titles of “any boat of this description that had been titled since the time this boat had been missing” and located a title of a boat of the general description of the missing boat, except for the year, in the name of the appellant. The title indicated that the home port of the boat was Stoney Creek and he went there and found the boat at Knott’s Marina. The application for the title issued to the appellant showed his address to be 1011 Bristol Place, Baltimore, Md., that the registration was “new”, that the boat was a Thunderbird, inboard, manufacturer’s hull No. APR-51332, fiberglass hull, 22 feet 6 inches in length, model year 1965. It stated that the total purchase price was $1900, that the boat had been purchased from “Mr. Harry Glass” on June 23, 1966, that the boat had not been registered or titled and had no boat number and that there was no outstanding lien. The certification of the sales price bore the purported signature “Harry T. Glass” and gave his address as 5104-6th Street, Baltimore 25, Md. The application was signed “Daniel Christopher Kincer” and was sworn to before a Notary Public. Attached to the application was a handwritten document dated June 23, 1966 as follows :

“I hereby sell to Daniel Christopher Kincer a 22 ft. 6 inch Fiberglass Boat Hull Number APR-51332— as is for the amount of $1900.00”

It bore a signature “Harry T. Glass” with the address, 5104-6th Street, Baltimore, Md. 21225. The certificate of title for the boat issued under date of June 27, 1966 upon Kincer’s application was serial No. A 37880, boat No. Md. 1845K, manufacturer’s hull No. APR 51332. On the rear of the certificate, under date of 1 October 1966, the appellant certified under oath that he did sell the boat to David Patón, 6009 Huntridge Road, Baltimore, 10 Md. for the sum of $3850.00 and Patón certified under oath that he purchased the boat for that amount.- At the time the boat was recovered it had on the hull boat No. MD. 1845K. On the rear rib of the hull the officer removed a plastic plate containing the serial No. “APR 51332.” He delivered it to the Maryland State Police Laboratory. The officer further testified that he attempted to locate Harry T. Glass. There was no 5104-6th Street, Baltimore, Md. — “it would have to be a continuation of 6th Street and it would be in the middle of a field. I contacted the Post Office in that area. I contacted the Telephone Company for anyone with the name of Harry T. Glass. I also contacted the Police Department for anyone who may possibly have been arrested with that name, and I was unable from the phone books or anyway to find out anyone by the name of Harry T. Glass. * * * I have been unable to lpcate him.” The bill of sale and application for title were delivered by the officer to the Maryland State Police handwriting expert. At this point in the trial there was entered in evidence by stipulation that:

1) the signature of the appellant on the application for title was his signature ;
2) the appellant “filled out the body of the alleged bill of sale from Harry T. Glass, excluding the signature of Harry T. Glass and excluding the notary.”
3) the boat recovered “and which was at one time in the possession of the defendant, was the same boat that was stolen from Mr. Walker.”
4) the numbers on the plastic plate had been altered to read APR 51332 but it was unable to be determined by laboratory tests what the original numbers were.
5) there was no boat manufactured by Thunderbird with the numbers now appearing on the plate.
6) the boat was sold by the appellant to James W. Knott at a price of $2700.

An employee of the Department of Chesapeake Bay Affairs testified that when an application for title and registration of boats is received properly completed on its face, the model year is accepted as designated, as a matter of course.

The appellant testified that on a bulletin board in a supermarket where he shopped he saw a notice that a fiberglass cruiser was for sale cheap. He called the telephone number (no name was given) appearing on the notice. He talked to a man who said his name was Harry — “I didn’t know his last name until we signed the bill of sale at the Notary Public.” A week before he bought it Harry took him for a ride in the boat and he agreed to buy it for $1900. Harry told him it was a 1965 model and went with him to apply for the title. He had never before owned a boat and did not know anything about them. “I thought it was a lot of money myself. I wouldn’t pay $6000 for the Queen Mary.” The day he paid for the boat he was at Knott’s Marina and Knott asked him how much he paid for it and when he informed Knott of the price, Knott said, “Well, wdien you get ready to sell it let me know.” He used the boat all summer (he received two citations for violations from the Tidewater Fisheries) and at the end of the season told Knott he -was ready to sell it. Knott offered him $2800 but after taking the boat out said something was wrong with “the back part of it” and would he take $2700 for a fast deal. The appellant agreed and sold the boat for that amount. He denied that he altered the hull numbers on the plastic plate, denied knowledge that the boat was stolen and claimed that he knew nothing about the price of boats. With regard to the bill of sale he said that Harry told him, “My handwriting is not too good, go ahead and make it say what you want and I will sign it.” He wrote the bill of sale and Harry signed it. On cross-examination he said that he paid cash which he withdrew from a $2000 account he had in a bank. He said that he did not see or request to see a title certificate showing the ownership of the boat at the time he bought it nor a bill of sale indicating that Glass was the true owner. When he first called Glass on a Wednesday arrangements were made to meet at “a local tavern” in Baltimore the following Saturday at which time they went to La Plata to look at the boat. They went for a ride and he paid for the boat a week later when he next saw Glass and the boat at Knott’s Marina. That same afternoon they went to the Department of Chesapeake Bay Affairs, obtained an application for title, and then went to Baltimore to a Notary Public the appellant knew “by sight” to have the forms completed. The Notary asked Glass for his driver’s license and Glass showed it to him but the Notary Public was not called by the appellant as a witness. He did not consult anyone about buying the boat, even though he knew nothing about boats. “I liked it. And to me I thought it was a good deal.” He decided to pay $1900 for the boat because that was all he had; he needed the other $100 for taxes and transfer charges. “The man told me he wanted $2500.1 told him I didn’t have it. He says, ‘How much can you get?’ I told him $1900 was all I could go.” Glass accepted that offer. When he told Knott how much he paid for the boat, Knott said that he had made a good deal and to let him know when you get ready to sell it. When he first saw the •boat “it was clean, a clean good looking boat. I looked — it was —well he told me it was a ’65. It could have been a ’65 took care of. I didn’t know it was a new boat. It didn’t look new but it was clean.”

It is conceded by the appellant that he received the boat and that at the time of its receipt it was stolen property. It is not necessary that the knowledge of the receiver that the property was stolen be direct or actual. Such knowledge may be found in a rational inference deduced from circumstantial evidence when such proof indicates that the receiver knew or could reasonably have suspected that the property in his possession was stolen. McGlothlin v. State, 1 Md. App. 256, 262. Possession of stolen property by one charged with unlawfully receiving it, although not sufficient to show guilty knowledge, is a strong circumstance to be considered with all other evidence of guilty knowledge. Jordan v. State, 219 Md. 36. The test of the sufficiency of the evidence in a case tried before the court without a jury is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Sadler v. State, 1 Md. App. 383. We cannot say that the evidence here did not support a rational inference that the appellant knew or could reasonably have suspected that the boat was stolen. Assuming that there was a Harry T. Glass, such guilty knowledge could have been found by the trial court in a rational inference deduced from the unusual circumstances of the appellant’s contacts with Glass; the discrepancy between the amount the appellant paid for the boat and its fair market value, as shown not only by the original purchase price when new but also by the amount for which the appellant sold it to Knott ($2700 at the end of the boating season) and the amount for which Knott promptly re-sold it to Patón ($3850); the ready acceptance by Glass of the amount the appellant offered to pay; the lack of a title certificate in the name of Glass and a lack of a bill of sale to Glass, concerning which the appellant made no inquiry and no request for explanation; the fact that the application for title, signed and sworn to by the appellant, contained a statement that the boat had not been theretofore registered or titled and had no boat number, although the appellant said he thought it was a used boat and not a new one; the fact that it was clearly apparent by even casual observation of the plastic plate bearing the serial number of the boat that the number had been altered; and the non-existence of the address alleged to be that of Glass. And Harry T. Glass was an ethereal figure at best, who was not produced by the appellant, who could not be located by the police, whose purported address did not exist and whose alleged telephone number the appellant did not disclose. The trial judge was under no obligation to believe the defendant’s denials or explanations. Tillery v. State, 3 Md. App. 142, and the weight of the evidence and the credibility of the witnesses were for him to determine, Trout v. State, 3 Md. App. 259.

With regard to the fraudulent intent in receiving the stolen property, the intention need not be lucri causa, but one merely hostile to the title of the true owner. McGlothlin v. State, supra, at 262. The other three elements of the crime being proved, the fraudulent intent was patent. Upon obtaining possession of the boat, the appellant obtained a certificate of title in his own name forthwith, used the boat the entire summer and then sold it at a substantial profit (demonstrating lucri causa), each of which were hostile to the title of the true owner.

We think that the findings of the lower court on the evidence were not clearly erroneous and affirm the judgment. Md. Rules, 1086.

Judgment affirmed; appellant to pay costs.

      . The application, except for those spaces specifically designated as not to be filled in by the applicant and except for Section 4, was completed in blue ink. The spaces not to be filled in by the applicant were completed in red ink, apparently by a clerk in the Department of Chesapeake Bay Affairs. Section 4, in which the amount of the excise tax and purchase price were to be stated, carried the designation “must be filled in” but it, including the amount of the purchase price was completed in red ink.

      . The appellant made no attempt to show from bank records or any other source that he had $2000 on deposit and withdrew $1900 at the time of his alleged purchase of the boat. Nor did he give the name of the bank.

      . The appellant did not assign his title certificate to Knott, his purchaser, but to Patón. In the assignment the appellant certified the purchase price to be $3850.

      . It was clearly stated on the back of the application for title that when a used vessel from a title state is purchased the certificate of title issued by the state must accompany the application and if the vessel is from a non-title state a “registration stub” of the non-title state and a bill of sale must be submitted. And if the vessel has never been registered, as the application in the instant case indicated, the application provides that a written explanation be attached, which here was not done.

      . The appellant admitted to a prior conviction of larceny in 1958.


text:
    SAMUEL ROBERT FRAZIER v. STATE OF MARYLAND
    [No. 318,
    September Term, 1967.]

      Decided September 16, 1968.

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

      Howard L. Stern for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Howard S. Chasanow, Assistant State’s Attorney for Prince George's County, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty of robbery with a deadly weapon by a jury in the Circuit Court for Prince George’s County and sentenced to imprisonment for a term of 10 years. He contends on appeal from the judgment that he was denied a speedy trial and that the evidence was not sufficient to sustain the conviction.

SPBBDY TRIAL

The appellant was presented and indicted on 1 April 1966, charged with an offense alleged to have been committed on 8 March 1966. On 17 August he filed a motion for a speedy trial in proper person in which he alleged that he was then confined in the federal prison at Eorton, Virginia serving a 1 year sentence imposed 22 April by the United States District Court for the District of Columbia. The State answered the motion on 1 September, stating that it was ready and willing to proceed with the arraignment and trial and that it did not consent to a withdrawal of a detainer placed against him. On 8 September a speedy trial was granted by order of court, directing that the State’s Attorney forthwith take the necessary steps to have the appellant brought before it for trial from the place where he was confined. The order appointed counsel for the appellant “with specific instructions to see that all necessary steps and procedure are complied with in order to produce the defendant before this Court in order to carry out the desire of the Court to grant a speedy trial.” On 12 September the appellant in proper person filed a reply to the State’s answer to his motion for a speedy trial, demanding “a copy of the information used by the State’s Attorney, and presented before the Grand Jury for a true indictment * * “a Copy of Bill of Particulars”; “any other documental material being used to bring about a trial”; and “a copy of Indictment”. The appellant stated that the motion was “being submitted pursuant to the provisions of Title 18, U.S.C., Section 3500, and the JENCKS RULE, Fed. R. Crim. Procedure.” On 6 October a writ of habeas corpus ad prosequendum was issued on petition of the State’s Attorney to the superintendent of the D. C. Reformatory, Lorton, Virginia commanding him to have the appellant before the Circuit Court for Prince George’s County on 20 October 1966. The docket entries under date of 20 October show the case continued to 27 October 1966. On 28 October counsel for the appellant wrote the Assistant State’s Attorney that the “arraignment procedure under our Rules is an extremely important facet of the criminal procedure and we feel it would be prejudicial to our client to have him, arraigned the same day of the trial.” He requested that the appellant be presented for arraignment “at the next earliest possible time.” On 28 November the State’s Attorney wrote defense counsel informing him that the case was set for trial on 8 December, giving the name of the assistant to which it had been assigned and requesting that counsel contact the assistant to discuss the trial. A writ of habeas corpus ad prosequendum was issued on 30 November to the superintendent of the Reformatory at Norton to deliver the appellant to the Circuit Court for Prince George’s County for trial on 8 December. On 19 December the State’s Attorney wrote defense counsel that the case was set for trial on 17 January 1967 and on 12 January that it was set for trial on 9 March. On 1 March a writ of habeas corpus ad prosequendum was issued for the appearance of the appellant for trial on 9 March. On 23 March the appearance of counsel for the appellant was stricken and another counsel appointed by the court to represent him. On 3 April the State’s Attorney wrote defense counsel that the case was set for trial on 14 April, and a praecipe for witness summons was filed on 5 April, returnable 14 April. On 7 April the appellant, by his attorney, filed a motion to dismiss the indictment for lack of a speedy trial and under date of 14 April the docket shows the case continued. On 21 June the State’s Attorney wrote defense counsel that the case was set for trial on 8 August. On 22 June the appellant was arraigned. On 29 June he wrote the court alleging that his counsel was not present at the arraignment (a plea of not guilty was entered on arraignment by the court in absence of counsel) and requesting that bond be set so he could “seek legal assistance elsewhere, to prepare a defense for pending charges.” On 30 June bond was set in the amount of $5000. The case came on for trial on 8 August. After the jury had been empaneled and sworn the motion to dismiss the indictment, filed 7 April 1967, was argued out of the presence of the jury. No evidence was offered by the appellant on the issue. Defense counsel reviewed the docket entries but did not know why the case was not tried as set on 20 October 1966 and 27 October. The trial set for 8 December was not had because the appellant’s counsel at that time filed a motion for a continuance until February 1967. The trial set for 9 March was not had because “a series of events beyond the control of my client took place which took his attorney out of the conduct of the business of law.” Counsel representing the appellant at the trial was appointed 23 March and trial was set for 14 April. According to counsel, at that time the appellant had been released under the District of Columbia Bail Bond Act and the attorney in Washington, representing him on another and unrelated charge, told him not to appear in Prince George’s County until the matter in the District had been determined. Therefore the appellant did not appear for trial. Defense counsel suggested to the court that it would be impossible “for any of us sitting here in this room today * * * to tell or figure out what we were doing on March 8, 1966,” and that the appellant could not prepare a defense or “an alibi defense.” He conceded that he could not say or prove that the delay was purposeful on the part of the State but alleged that it was oppressive and prejudicial. He indicated that the State should be charged with the delay because the court appointed attorney “for some reason or other couldn’t carry out his job. We don’t know why. That is conjecture on all our parts at this time.” But he offered no evidence in support of his bald allegations, suggestions and conjectures. The court denied the motion to dismiss.

Considering: (1) the length of the delay (we do not think that the passage of time here between indictment and trial itself demonstrates a violation of the right); (2) the reason for the delay (the State was ready and willing to proceed to trial on and after 20 October 1966, had set a trial date on a number of occasions and took steps to obtain the presence of the appellant. There is no showing that the delay was purposeful or capricious on the part of the State and properly chargeable to it. On the contrary, on at least two occasions the delay was at the instance or caused by the appellant) ; (3) prejudice to the accused (even if it be assumed that the failure to bring the appellant to trial was due to the negligence of the State, which we do not find, some showing by the accused of “a strong possibility of prejudice” is required. The appellant made no such showing) ; (4) waiver by the accused (the request for continuance to February 1967 and his failure to appear for trial on 14 April 1967 may he deemed a waiver of the right to a speedy trial even though previously demanded by him), we find no deprivation of the appellant’s constitutional right to a speedy trial. See Brown v. State, 4 Md. App. 141; Thompson v. State, 4 Md. App. 31; Stevenson and Borum v. State, 4 Md. App. 1; Hall v. State, 3 Md. App. 680; Fabian v. State, 3 Md. App. 270; Tillery v. State, 3 Md. App. 142; Kelly v. State, 2 Md. App. 730; Dubs v. State, 2 Md. App. 524; Brown v. State, 2 Md. App. 388; State v. Long and Nelson, 1 Md. App. 326. We hold that there was no error in the denial of the motion to dismiss the indictment.

SUFFICIENCY OF THE EVIDENCE

The appellant’s contention that the evidence was not sufficient to sustain the conviction is limited by him to the issue that although the indictment charged that the money taken by the appellant from the victim by robbery with a deadly weapon was the moneys of “Branch, Inc., a body corporate, T/A Sam’s Car Wash”, there was no evidence of the moneys “belonging to Branch, Inc.” He alleges that, “[i]n fact, the name Branch, Inc. nor anything close to it was ever mentioned.” But the transcript of the proceedings at the trial discloses that the victim testified that the money taken was “the company’s money, Sam’s Car Wash”, that Sam’s Car Wash was a corporation, and that the name of the corporation was “Branch Avenue, Incorporated, trading as Sam’s Car Wash.” The purpose of an indictment is to apprise the accused of the crime charged, Dortch and Garnett v. State, 1 Md. App. 173, so he may prepare his defense and be protected from double jeopardy. Jackson v. State, 231 Md. 591. We think it clear that the indictment apprised the appellant of the crime charged. And in any event, although an allegation of the ownership of property alleged to have been stolen is a necessary requisite in an indictment charging larceny and proof of ownership as laid in the indictment is an essential factor to justify conviction. Anderson v. State, 3 Md. App. 85, ownership of goods taken in a robbery need not be alleged in an indictment charging robbery or robbery with a deadly weapon and proof of ownership is not required; what is required is that the victim be shown to be the owner or that he had a legal interest or special property in the goods taken, as for example, be in lawful possession as bailee, McMillan v. State, 3 Md. App. 699. In the instant case the victim was conducting his business when the robbery occurred, the money was locked in the safe and he was forced to open the safe by the robbers. In answer to a direct question at trial, “In whose possession was the money?” he said, “The money belonged to the company. The money was in the safe. It was our possession, certainly.” It is clear that the evidence was sufficient to show directly or by inference that the victim was the lawful possessor of the money taken from him and therefore the conviction was proper. Harrison v. State, 3 Md. App. 148.

Judgment affirmed.

      . The docket entries show under date of 1 April 1966 that a bench warrant was issued with a copy of the indictment delivered to the Sheriff for service and under date of 14 June 1967: “Returned ‘cepi’ as to Frazier, filed.” There was endorsed on the warrant under date of 14 June 1967 over the signature of the Sheriff of Prince George’s County: “Cepi and copy of indictment given to Samuel Frazier.” On the' docket the entry as to the giving of the cepi and indictment immediately follows an entry dated 1 April 1966 and immediately precedes an entry dated 14 April 1966 which is followed in chronological order by seven other entries made in 1966. ■

      . The appellant states in his brief that the State did not use the form of indictment for robbery with a deadly weapon “required” by Md. Code (1967 Repl. Vol.) Art. 27, § 487, but used the common law form. It is § 489 of Art. 27 which sets forth a form of indictment for robbery with a deadly weapon. Section 487 sets forth a form of indictment for robbery. Neither form is “required” to be used. The sections merely provide that “it shall be sufficient to use a formula substantially to the following effect:” and set forth the formula. He also states that robbery “although one of the common law felonies, has been made a statutory crime” by Art. 27, § 486. We have held that robbery is a crime in Maryland under common law; § 486 does not define it but fixes the penalty for it. Darby v. State, 3 Md. App. 407, 413. We held in the same case that § 488 merely provides a more severe penalty for the existing crime of robbery when it is committed with a dangerous or deadly weapon and does not create a new substantive crime. Jones v. State, 3 Md. App. 608, 613.


text:
    KLAUS WALTER BRAUN AND ALBERT LIZER v. STATE OF MARYLAND
    [No. 335,
    September Term, 1967.]

      Decided September 16, 1968.

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

      Philip D. Quint and Howard L. Muhl for appellants.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, John C. Hancock, State’s Attorney for Charles County, and Louis P. Jenkins, Assistant State’s Attorney for Charles County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellants were found guilty at a court trial in the Circuit Court for Charles County of grand larceny and storehouse breaking with intent to steal goods of the value of $100 and upwards. Braun was sentenced to a term of 4 years and Lizer to a term of S years. The determination of the contentions raised on appeal from the judgments turn on the legality of the arrest of the appellants.

On 24 July 1967 Mr. and Mrs. Francis Chappelear were the owners and operators of a restaurant at Benedict, Maryland. They had secured the premises, which contained goods valued at approximately $6000, the evening of 23 July and retired for the night in their home a short distance from the restaurant. There was an “intercom system” connecting the restaurant and their bedroom and about 3:00 A.M. they heard noises over the intercom. Mrs. Chappelear looked out the window and saw “people moving around in there.” She telephoned the State Police and stayed on the line, conveying what she observed, until the State Police arrived on the scene. Her husband stayed by the intercom to hear what was going on. Trooper Thomas H. Ireland of the Maryland State Police was the first to arrive at the scene about 8 minutes from the time of Mrs. Chappelear’s call. He obtained information from Mr. and Mrs. Chappelear which he put on the radio about 12 minutes after he arrived. As a result of these activities three reports were put on the police radio network by the State Police. The first was that there was a breaking and entering in progress at Chappelear’s Restaurant in Benedict, Maryland; subjects were in the building, “two maybe more” and the police were asked to respond. The second contained information that Mrs. Chappelear had seen two subjects and one of them “was a slim subject wearing a white shirt.” The third call stated that the subjects had left the building. Water is on three sides of the Benedict area and there is only one road therefrom, leading to State route 231 which it meets at a T-intersection about a mile or a mile and a half from Chappelear’s. Deputy Sheriff David Fuller and Deputy Sheriff James F. Gartland of the Charles County Sheriff’s Department,' on duty in their marked car, at Waldorf about 10 miles from the Benedict road received the first call on the radio about 3:30 A.M. Responding to the call they proceeded on route 231 toward Benedict. En route they received the second and third calls. They saw no other vehicles while on route 231. About one or two minutes after they received the third call they saw an automobile on the road from Benedict travelling at a high rate of speed toward the intersection of route 231. It sped through the stop sign at the intersection, making a right turn toward the Calvert County Bridge. The officers pursued the car and pulled along side of it, warning it to stop by means of their red flashing light. As they overtook the car Gartland observed that two of the occupants were wearing white shirts, Braun was driving, a woman was in the front seat and Rizer wras in the back seat. Braun and Rizer were wearing the white tee shirts. The officers arrested the occupants at gun point and handcuffed the men. Shortly thereafter State Police arrived on the scene and the car was searched. Keys turned over to the police by Braun would not open the trunk so the rear seat was removed and an aperture into the trunk was revealed. In the truck the police saw a box containing money and a shotgun. Trooper Albert Hoffman who was at Chappelear’s was called to bring Mr. Chappelear to the car. Mr. Chappelear identified the objects as stolen from his restaurant — the shotgun as belonging to him and the box as one which came from one of his slot machines. Subsequently the trunk was opened and the shotgun and box, which contained coins, were seized. The shotgun, the box and money, a screwdriver found between the grill and radiator of the car and another screwdriver found in the car were admitted in evidence over objection.

The appellants urge on appeal, as they did at the trial, that the arrest was illegal in that it was made without a warrant and on no probable cause for the officers to believe that a felony had been committed and that the appellants had committed it. Therefore, they claim, the search and seizure was unreasonable and the challenged articles were inadmissible as evidence. In finding that the arrest was legal and overruling the objection to the admission of the evidence the court said :

“I conclude that there were ample grounds to substantiate a reasonable belief on the part of the two deputy sheriffs that a felony had been committed. And I likewise conclude that there was ample testimony to believe, on the grounds of probable cause, that these defendants, or the occupants of the car, may well be involved in it.
The reason I conclude it is this: Not so much on the white shirt, though that’s a factor. I don’t put the same stress on it counsel do, based on the interrogation about it. I find that there is prima facie evidence from which I can conclude that Mr. and Mrs. Chappelear became aware of the fact that their place was being burglarized at the time the burglary was being committed. They observed with their own senses that someone unauthorized was in the place. They got the police on the phone and told them that, while they made this observation.
It seems clear that during this conversation with the Waldorf Police Barracks, while it was being carried on, unknown to the people in the establishment, that they were committing a crime, and so they were continuing their work while she was giving a description. It is equally apparent that they kept her on the phone so that she could continue to describe what she was observing, so that they could put this information out, not only to the State Police, but apparently to the Sheriff’s Office in some cooperative maneuver that they had.
I find from the evidence that the two Deputy Sheriffs were in the vicinity of Waldorf, which is some 12 or 15 miles away; proceeded at a high rate of speed in the direction of Benedict. And it is clear that for the first several miles they did meet two or three cars, but then no other vehicular traffic on the road. Had they stopped one of those first three, why I would say there was no probable cause, because the information they had was at that time the crime was in the process of being committed, and it would have been impossible for those first two or three cars to have reached 15 miles away within that time.
But as they got nearer and nearer to Benedict, it was natural that they would view each vehicle that they passed with greater suspicion. And, as it is apparent, when they got near the only exit from Benedict a car was coming out.
Now, it’s perfectly natural that their attention would be focused there. Had that car gotten out and met even a mile away, it would have given me somewhat more trouble. But just as they got to the intersection they received the information that the crime had been committed, and the persons were then in the process of leaving or escaping. Now, with that knowledge, and that having happened just minutes before, a question of maybe less than five minutes, what do they see? At three o’clock in the morning, a vehicle at a high rate of speed, whether it’s 60, 70 or 80 miles an hour, is of relatively minor consequence; ■ but at a high rate of speed, come out of the only exit from Benedict, at a time of the day when there is no one moving in the area.
They traveled some ten or 12 miles without seeing a vehicle, in a sparsely settled section of the County.
* * * But the significant fact is that this car, at a high rate of speed, not stopping at a stop sign, comes into the “T” intersection from the only method of egress from the Village of Benedict, where the crime was perpetrated, and with the knowledge that they had just left minutes before.
Now, without further description, I would say there is probable cause right there, to stop that car to determine that question, without any description as to whether it was a white shirt or blue shirt or yellow shirt, or anything else.
As a matter of fact, I think it only fair to state that it would be very questionable that they saw what color shirt he had at that stage. Maybe when he drove up beside them and turned on the red light he could see. But in their determination tq stop that car. it’s very questionable that they could- see -a white shirt at that time. And he obviously had determined to stop that car, because he had to pass the turn in order to get the car to where it was between there and the bridge, a short distance away.
It would seem to me that there would be probable cause, since this was at three o’clock in the morning, or four o’clock in the morning, at a time when there was just literally no one stirring in the neighborhood, to stop any car that they met on the only road leading to Benedict.
I think there is great significance in the fact, or I feel there is in these three factors: Number one, the time of the hour when there is no one else moving; number two, that they had left the scene of the crime within minutes, by the information that they had; and number three is they were coming out of the only entrance, at a high rate of speed, disobeying the mandate to stop because of a stop sign. * * *
It seems to me when you know someone committed a crime, in a question of a few minutes is coming out of the only exit from that establishment, that that in itself is probable cause, when you know that a felony has been committed. It is almost like knowing that a felony has been committed and seeing somebody run from the place where the robbery was committed, or store; you are justified in stopping the person when you know that a felony has been committed. You have reasonable grounds to believe that a felony has been committed, and you see somebody coming away from it, at a fast rate of speed, whether on foot or in a vehicle, that in itself creates probable cause to stop the person and conduct your arrest.
I conclude that there is probable cause, was probable cause for the arrest.”

We agree. The general rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested has committed it. Duckett v. State, 3 Md. App. 563, 572. Information broadcast over a police radio and received by a member of the police team may constitute probable cause for an arrest. Robinson v. State, 5 Md. App. 68, and cases therein cited in note 7. Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a felony has been or is being committed. Boone v. State, 2 Md. App. 479; Michaels v. State, 2 Md. App. 424; Gaudio and Bucci v. State, 1 Md. App. 455. The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion. Simms v. State, 4 Md. App. 160, 167, quoting Edwardsen v. State, 243 Md. 131, 136. We think the evidence here meets the test of these rules.

As the arrest of the appellants was legal, the search of the car incident thereto was reasonable and the evidence seized thereby was properly admissible. Watts v. State, 3 Md. App. 454; Lewis v. State, 2 Md. App. 678; Barton v. State, 2 Md. App. 52; Dixon v. State, 1 Md. App. 623.

Judgments affirmed; appellant Braun to pay one-half of the costs.

      . Trooper Ireland, the first officer to arrive at Chappelear’s restaurant was asked if he passed any cars on the way in. He replied, “No, sir. I did not. However, there are numerous side roads in Benedict that this vehicle (the car containing the appellants) could have been parked in or on.” ’

      . There was testimony that permission to search the car was given by Lizer, the owner of the car, in the presence of Braun who raised no objection. Trooper Henry Roeckel, whose testimony was corroborated by other officers, said that he asked Lizer if they could search the car and Lizer said that they could search it “but don’t tear it up.” The lower court found no need to determine whether or not the search was permissive, nor do we. Nor do we think, in the circumstances, that the search of the trunk could be justified on the grounds that the arrest was legal in that the misdemeanor of failing to stop at a stop sign was committed in the presence of the arresting officers. In any event, the testimony of the officers makes clear that the arrest was made on the ground that they had information that a felony had been committed and believed that the appellants committed it.