author: Thompson, J.,

text:
    JOEL TERRELL, JR. v. STATE OF MARYLAND
    [No. 135,
    September Term, 1967.]

      Decided March 12, 1968.

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

      Beverly S. Pearson for appellant.

      Dickee M. Howard, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney, for Montgomery County, and Page J. Digman, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Joel Terrell, Jr., the appellant, complains of a conviction of robbery in the Circuit Court for Montgomery County in a trial before Judge Walter IT. Moorman and a jury. His specific complaints are that evidence concerning tracking of the defendant by a German Shepherd dog was admitted into evidence over objection, that certain articles allegedly seized as a result of an illegal search and seizure were admitted into evidence over objection and that the determination of the lawfulness of the arrest and of the ensuing search and seizure should have been made out of the presence of the jury.

On September 20, 1966, at approximately 10:15 P.M. three Negro males, two of whom displayed revolvers, held up the desk clerk at the Park Silver Motel on Thirteenth Street in Silver Spring, Maryland and seized a cash box containing one hundred dollars ($100.00) belonging to the motel and eighteen dollars ($18.00) belonging to the clerk. Police, who arrived within two or three minutes, brought to the motel eight to ten suspects found in the area for identification by the clerk. He declared them not to be the robbers. The trial judge sustained an objection to the question as to what description of the suspects was given to the police. Later, however, the clerk testified “Well, they had beards. One of them, the defendant on the left, had on a white windbreaker of some sort. The fellow on your left had on a hat, beard, and he had a turtle neck sweater of some dark color with a coat over a suit coat like what he has on now.” Although he admitted he made some mistakes in-giving the description to the police, presumably some similar description was given at the time he reported the robbery or soon thereafter. Inspector Howes of the Montgomery County Police Department was the first officer who responded to the clerk’s call. He testified that upon his arrival he observed a trail of coins leading from the front of the motel to a nearby alley. He stayed at the entrance to the alley to protect the scene until Fred Helton, an officer of the K-9 Corps with his dog,. “Rocky,” a German Shepherd K-9 dog, arrived at the scene. Officer Helton started the dog on a track at the entrance to the alley. The dog led the officer up the alley and turned right into another alley leading out of Eastern Avenue. Officer Helton took the dog across the street to a church lawn. The dog continued the trail south on the sidewalk to a Plymouth automobile which was parked on Eastern Avenue. There was a light rain falling and causing a mist on the car windows so that the officer could not readily see inside the car; but, however, he did see one subject lying on the front seat and one subject lying on the back seat. Three people were in the automobile; one of whom was Joel Terrell, Jr., the appellant. Officer Helton then radioed for assistance. One subject in the car opened the car door and the officer told him to stay inside. Assistance arrived within minutes and the three suspects were ordered out of the car and placed in separate police vehicles; within a few minutes the motel clerk w^as brought to the scene and identified the three persons as the ones who had robbed him. It was now approximately 11:00 P.M.

One of the occupants of the car, Kaiser Booker, admitted that he had been involved in the hold-up and during pre-trial questioning, he told the police that the defendants had been with him, but at the trial he denied the defendants had been with him and named a different person and another whose name he could not remember as his accomplices.

Cpl. Daly, of the Montgomery County Police Department, testified that after the subjects got out of the Plymouth automobile, he looked in the open door and observed a ten dollar bill protruding from the driver’s seat. In the rear of the automobile, he observed folded United States currency protruding from underneath the rear seat. On the floor he observed the butt of a pistol protruding from beneath some newspapers. Upon moving the newspapers he saw two pistols. The Plymouth was immediately towed to the Silver Spring Police Station, which was about half to three-quarters of a mile away. It was. thoroughly searched at the station and $100.13 in United States, money and the two pistols were seized; all of which were admitted into evidence at the trial. In addition, pictures of the interior of the car were taken and admitted into evidence. Some of the pictures were taken on the street at the place where the vehicle was found, others were taken at the police station soon after the car was taken there.

Terence P. Cahill was qualified as an expert in the training of dogs for use by law enforcement agencies. He testified that over a period of five years in London he had trained approximately 150 dogs and supervised the training of others; that he trained twenty-five dogs in one year’s service in Baltimore ; started the K-9 Corps in the District of Columbia, where he’s trained at least eighty dogs. In addition, he has lectured on the subject since 1959 and has trained men to become dog trainers for other jurisdictions. He testified that he trained this particular German Shepherd dog and Officer Helton daily for a period of fifteen weeks and once a week for many weeks thereafter ; he further testified that the dog was reliable in the tracking of human beings and had been given an excellent rating in his fifteen week training course. Officer Helton also testified that the dog had been trained in tracking and had shown ability to follow a trail.

I

The first question presented is whether or not the evidence of tracking by the German Shepherd police dog was properly admitted into evidence.

The ability of a dog to follow the human scent is not an inherent characteristic, but one that must be instilled into the animal through arduous training. A very colorful page of American folklore deals with the bloodhound tracking down a fugitive. It was not until 1893, Hodge v. State, 98 Ala. 10, 13 So. 385, 39 Am. St. Rep. 17, that an accused raised the issue that evidence showing that a bloodhound tracked him down was not admissible. The Supreme Court of Alabama in a one page opinion allowed the evidence, citing no authority, stating that it was “common knowledge” that such dogs, if properly trained, could track down a person. Four years later, the Alabama Supreme Court reiterated its position, Simpson v. State, 111 Ala. 6, 20 So. 572 (1896) citing Hodge, supra, as precedent. Nonetheless, the formulation of a general rule with restrictions was in the making.

The Kentucky Supreme Court set forth the basic rule in 1898 when it handed down Pedigo v. Commonwealth, 103 Ky. 41, 44 S. W. 143, 19 Ky. L. Rep. 1723, 82 Am. St. Rep. 566, 42 L.R.A. 432, at 44 S. W. at 145 :

“After a careful consideration of this case by the whole court, we think it may be safely laid down that, in order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated to have been made by him. When so indicated, testimony as to trailing by a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime of which he is accused. When not so indicated, the trial court should exclude the entire testimony in that regard from the jury.”

Besides stating the majority rule, Pedigo, supra, set the groundwork for the minority by referring to the superstitious attitude towards the bloodhound. In 1903, the Nebraska Supreme Court in Brott v. State, 70 Neb. 395, 97 N. W. 593, 63 L.R.A. 789 reversed a burglary conviction based on “bloodhound evidence.” The evidence so adduced was not competent for, “It is unsafe evidence, and both reason and instinct condemn it.” A close examination of the facts in Brott shows that there had been a time lapse before the dogs were used, during which time the trail had been walked on “a hundred times” by observers. Therefore, even under Pedigo, supra, the evidence would be excluded.

The minority rule established by Brott, supra, which like Hodge, supra, cited no authority except its own version of “common knowledge”, set out two reasons why the evidence should be excluded. The superstitious awe in which the bloodhound is held may exert an undo effect on the jury which cannot know first hand and “whether the reasons on which he acted were good or bad.” Furthermore, because the dog is not infallible, a wrong man may be tracked.

Although there was a rapid evolvement of the minority rule with Brott, supra, as its focal point—support for the rule was •slow. Several jurisdictions were placed in the minority camp merely because they excluded such evidence under circumstances that courts following the majority rule would also have •excluded it. For a complete discussion see State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 13 L.R.A. (N. S.) 341, 347, 122 Am. St. R. 479, 11 Ann. Cas. 1181 (1907). The reasoning behind the minority rule was rather shallow; it did not go beyond the negative pronunciation and interpretation of Brott, .supra. We will discuss the minority’s reasons in more detail hereinafter.

Today, twenty-five jurisdictions in the United States have •decided cases involving tracking by dogs. Nineteen have followed the majority thinking while six may be classified as minority orientated.

Under Pedigo, supra, and the ensuing decisions, various restrictions were established, limiting the unrestricted, vague enunelation of Hodge, supra. First a proper foundation must be laid. Before any evidence pertaining to the results of the dog’s tracking is admitted, the handler of the dog must testify as to his own qualifications and experience and that of the dog, along with an account of the dog’s ability to track. The cases have talked in terms of the dog’s experience, reliability, reputation, skill and training. Next, the circumstances pertaining to the trailing itself must be shown. For example, was the trail fresh or had it been trampled, or was there interference with the dogs while they were tracking, or were the dogs-placed on the trail soon enough. According to Pedigo, supra, the dogs must be placed on the trail at such a point where it is known that the perpetrator of the crime had been. The Kentucky Supreme Court in Pedigo, supra, made it clear that any evidence derived from the use of the dogs will be “one of the circumstances which may tend to connect the defendant with the crime Furthermore, the actions of the dogs must be certain, especially in indicating whom they were trailing. Many courts following Pedigo, supra, seemed to feel that the dog’s pedigree must be shown. Ruling Case Law in 1915 said pedigree was a proper requisite. Bullock v. Commonwealth, 249 Ky. 1, 60 S. W. 2d 108, 94 A.L.R. 407, 420-21 stressed this point. The most recent cases have not stressed pedigree as a prerequisite for the admission of evidence. The Supreme Court of North Carolina stated in State v. Rowland, 263 N. C. 353, 139 S. E. 2d 661 at 665 :

“We find no North Carolina cases, and defendant has cited none to us, in which bloodhound evidence has been excluded for a deficiency in the proof of the bloodhound’s pedigree if he is shown to be naturally capable of following the human scent, i.e. that he is a bloodhound, and if the evidence is corroborative of other evidence tending to show defendant’s guilt.” (Emphasis added).

Pedigo, supra, stated that “such testimony [is] competent, even when it is shown that the dog is of pure blood * *

The words “even when it is shown” are permissive not mandatory. It would seem by this that a showing of pedigree does not preclude exhibiting the further facts necessary in laying a proper foundation. This court does not believe that a showing of a certificate of pedigree would enhance the evidence adduced by the actions of the dog in question. Particularly apropos to this case is the statement of the Supreme Court of North Carolina in the case of State v. Rowland, 263 N. C. 353, 139 S. E. 661 at 666: “By his performance the old dog in this case pedigreed himself, at least. This record leaves little doubt that the shoe prints which he had followed from Maggie’s to Earline’s belonged to the defendant.”

Once the proper foundation has been laid the evidence may be used to identify the accused as the perpetrator or for some other reason, as long as this evidence is corroborated.

Only five states have followed Nebraska in adopting the minority view which seems to be primarily centered around the effect the bloodhound evidence will have on the jury. The minority cases have stressed six objections to the use of such evidence.

The first is that “[n] either the court nor the jury can have any means of knowing why the dog does this thing or another * * People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 823, 1915A Ann. Cas. 1171 (1914). This is a reference to the training and ability of the dog. The majority has answered this criticism by requiring a proper foundation laid first so the jury and court understand that the dog does in fact perform accurately and his method is of no real importance.

Secondly, that superstition and the legendary history of the bloodhound, local prejudice and public indignation and excitement may exert undue influence on the jury.

The minority feels that because of the colorful history of the bloodhound, the mere use of the dogs will arouse the public’s excitement with the result of prejudicing the defendant. A change in venue or venire may correct this; furthermore, the elements of unfavorable publicity, public excitement and the alike are not limited to bloodhound cases. The laying of a proper foundation and the use of the evidence as cumulative and for corroboration lessen the impact of the introduction of the dog’s evidence. The minority’s criticism, here, is lodged against the initial feelings the jury will have towards the case, not against the result the jury will reach. Their criticism is one against the jury system using the use of bloodhound evidence as an example.

A third criticism is “that the life and liberty of a free citizen ought not to be put in jeopardy on the testimony of dogs”, 94 A.L.R. 413, 416, 418 (1935). This idea was stressed in State v. Storm, 125 Mont. 346, 238 P. 2d 1161 (1952). However, it is not the dog but the handler who reports on the dog’s behavior, training, and ability. This leads to three other minority views, i.e., the dog cannot be cross-examined, his trainer’s testimony is hearsay and the accused is not confronted by his accusor, the dog.

Who is the proper person to question? The minority states that it is the dog while the majority states that it is the trainer. As stated in the first argument, the dog’s actions are predictable if he has been properly trained and the trail has been adequately followed. The trainer should be questioned to see if the dog was properly trained and the trail followed correctly'—for if this has been done, the dog’s thoughts, mannerism and such need not be looked into and if this foundation is not laid, then the evidence is excluded. It is the trainer who controls the dog,, therefore, he should be the one to be examined and cross-examined. Therefore, “the accused does have an opportunity to confront and cross-examine these witnesses who give evidence.” 33 Yale L. Rev. 216 (1923). The trainer stays with the dogs so he testifies as to his own observations. This would not be hearsay as proposed in Rex v. White, [1926] 3 D.L.R. 1, 37 B.C. 43, 2 W.W.R. 481, 45 Can. Crim. Cas. Ann. 328, 94 A.L.R. 413, 416-17 (1935) overruled by Regina v. Haas, [1962] 35 D.L.R.2d 172. An early view that such evidence was hearsay, was expressed by Elliott, 2 Elliott, Evidence §1253 (1904), citing Brott, supra. The Montana Supreme Court in State v. Storm, supra held that such evidence was a conclusion and therefore hearsay. It should be noted that in many trials, human evidence of the performance of a machine such as radar or a breathilizer are admitted.

“It is the human testimony that makes the trailing done by the animal competent; and its actions are described by human testimony as it would describe the operations of a piece of intricate machinery.” State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 Am. St. R. 479, 11 Ann. Cas. 1181, 13 L.R.A. (N.S.) 341, 349 (1907)

A further criticism brought out in Pedigo, supra and 9 Wash. & Lee L. Rev. 248, 253 (1952) is that the wrong man may be convicted. This might be a good argument if this evidence alone would convict. Even eye-witness identification is sometimes wrong, yet it is universally admitted.

In 1914, Illinois joined Nebraska as a minority state, People v. Pfanschmidt, supra. A close look at Pfanschmidt, supra, will show that like Brott, supra, the trail had been obscured so much that it could not be followed; the evidence would have been excluded under Pedigo, supra. People v. Wolf, 334 Ill. 218, 165 N. E. 619 (1929) followed Pfanschmidt, supra. In 1917, Ruse v. State, 186 Ind. 237, 115 N. E. 778, 1917E L.R.A. 726 (1917) was decided following Pfanschmidt, supra. Ruse, supra, makes it clear that such evidence would never be admitted. Iowa joined the minority in 1923, State v. Grba, 196 Iowa 241, 194 N. W. 250 (1923). The evidence, here, of the dog following a second trail would probably have been excluded under Pedigo, supra.

The latest state to be classified in the minority is Montana, State v. Storm, supra. The dogs in this case were taken off the trail. Because of the diversion as described in that case, the evidence would be excluded under Pedigo, supra, see 9 Wash. & Lee L. Rev. 248, 254 (1952). It appears that the court was also concerned because of a lack of corroborative evidence.

There is one other minority jurisdiction, New York—People v. Whitlock, 183 App. Div. 482, 36 N. Y. Crim. 524, 171 N. Y. S. 109 (1918). In that case a proper foundation was not laid; thereby the evidence was excluded. The trail, here, had also been obscured. This is one of three American cases dealing with German Shepherd dogs rather than bloodhounds. In 1964, Illinois again following Pfanschmidt, supra, excluded German Shepherd evidence, People v. Griffin, 48 Ill. App. 2d 148, 198 N. E. 115 (1964) but the tracking was insufficient under any recognized test. The latest German Shepherd case is Commonwealth v. LePage, 226 N. E. 2d 200 (Mass. 1967) which held at 226 N. E. 2d 210:

“There is no error in admitting the evidence of the trailing of the intruders by trained dogs. See Commonwealth v. Smith, 342 Mass. 180, 182, 172 N. E. 2d 597 (bloodhounds search without result). Decisions in other states frequently have treated such evidence as admissible at least as corroborative of other testimony. See Wigmore, Evidence (3d ed.) §177. The capacity of trained dogs to follow a human’s trail has long been known, [citations omitted] Although such evidence should be limited to matters as to which it is likely to be reliable, it may be admitted in the exercise of a sound judicial discretion.”

In the case at bar, the qualifications and experience of the dog were shown. The scene was protected until the dog arrived. The dog was placed on the trail where it seemed apparent that the perpetrators of the crime had been. There was no interruption in the tracking. The dog went to the car where the appellant was hiding along with two other men. The appellant was identified by the victim. All the dog did was locate three men and the appellant was identified as one of the perpetrators. The lower court did not err in admitting evidence of tracking.

II

Terrell complains that the arrest made by Officer Fred Helton when he confined the suspects to the automobile pending arrival of re-inforcements, was made without probable cause. It seems probable that at the time the officer had been furnished with the description of the robbers as given by the victim, but that the trial court’s erroneous ruling precluding the admission of the detailed description given to the police by the victim (see footnote no. 1 supra) prevented the State from fully developing the record in this regard. If the officer looking through the car window noted that the suspects generally met this description then, of course, there would be no question that there was probable cause for the arrest since they were found a few blocks from the robbery and not too many minutes thereafter. Regardless of this, however, the information furnished by the tracking of the dog was admissible and when combined with the other circumstances i.e. the time and place of the arrest the officer had probable cause to make the arrest. It should be noted, of course, an officer is not required to have sufficient evidence to convict at the time he makes his arrest but only probable cause, which has been described as something more than suspicion, but less than that required for conviction; Edwardsen v. State, 243 Md. 131, 220 A. 2d 547.

Although the appellant points out that the windows of the car were misty one man opened the door and the officer was thus given a good view of him.

Terrell contends most strenuously that under Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 the fact that the motor vehicle was towed to the police station prior to the completion of the search and seizure, made this act unreasonable even though the arrests were legal. In an opinion very recently filed we had occasion to review this problem in detail. In the case of Anthony, Smith and Thornton v. State of Maryland, 3 Md. App. 129, 238 A. 2d 130 we said:

“And while ordinarily a search of a motor vehicle can be incident to an arrest only if it is substantially contemporaneous therewith and is confined to the immediate vicinity of the arrest, Preston v. United States, 376 U. S. 364, Wilson v. State, 2 Md. App. 210, in some circumstances a search may be deemed incident to an arrest, although not conducted at the scene of the arrest, when it is made with reasonable promptness at a police station to which the vehicle was towed immediately following the arrest. Thus, in Arwine v. Bannan, 346 F. 2d 458 (6th Cir.), it was held at page 470-471 that the arrest and warrantless search of the defendant’s car at a police garage more than three hours after his arrest was nevertheless incident to his arrest since the arrest and search were ‘units of an integrated incident.’ In Price v. United States, 348 F. 2d 68 (D. C. Cir.), the search of the defendant’s car was made after it had been impounded in the police parking lot following his arrest and transportation to the police station. The court, in upholding the search, said at page 70 that it was ‘part of a continuing series of events which included the original arrest and continued uninterruptedly as lawful police investigation and action.’ In Trotter v. Stephens, 241 F. Supp. 33 (E. D. Ark.), the search of the defendant’s automobile outside of the jail to which he had been taken following his arrest was held valid, though made several hours after his arrival, the court there ruling at page 41 that the car had been obtained incident to and contemporaneous with defendant’s arrest, and that the subsequent search thereof was “merely part of one continuous act.” In United States v. Theriault, 268 F. Supp. 314 (W. D. Ark.), the search of the defendant’s truck outside the police station to which he had been taken after his arrest was upheld, the court there ruling at page 324 that it was part of ‘an uninterrupted and continuing action of the police initiated by the lawful arrest of the defendant.’ To like effect, see Rodgers v. United States, 362 F. 2d 358 (8th Cir.); Crawford v. Bannan, 336 F. 2d 505 (6th Cir.); People v. Webb, 424 P. 2d 342 (Calif.); People v. Robinson, 402 P. 2d 834 (Calif.); State v. Wilson, 424 P. 2d 650 (Wash.); State v. McCreary, 142 N. W. 2d 240 (S. D.); State v. Wood, 416 P. 2d 729 (Kan.); State v. Putnam, 133 N. W. 2d 605 (Neb.). It is true, of course, that the rule authorizing a warrantless search of a motor vehicle incident to a lawful arrest is usually justified on the basis of the need of the police to seize weapons and other things which might be used to assault an officer or effect an escape, as well as the need to prevent the destruction of evidence of the crime-—-considerations of no real applicability where, as here, the suspects and their vehicle were safely in police custody at the time of the search. But as we observed in St. Clair v. State, 1 Md. App. 605, 612, and more recently in Lewis v. State, 2 Md. App. 678, these basic reasons justifying a warrantless search incident to a valid arrest are not exclusive, nor do they operate to override the ultimate test governing the validity of a search and seizure without a warrant, to., whether under the facts and circumstances present in each case, the search was reasonable under the Fourth Amendment.”

It will be noted that on the facts of this case, the search was begun at the scene, but it was only a matter of minutes before the victim appeared and identified the robbers, and only a few more minutes before the robbers and the car were taken to a nearby police station where it could be more conveniently searched. There was no break in the chain of events and we think there was one integrated search within the meaning of Anthony v. State, supra and that the search was therefore incident to the arrest. It would not be reasonable under these circumstances to hold that the officers were constitutionally required to complete the search in the darkness and rain when it could be done with illumination and under cover less than a mile away from the scene of the arrest.

Ill

Finally Terrell argues that under Farrow v. State, 233 Md. 526, 197 A. 2d 434, the trial judge was required to conduct a hearing as to the legality of the arrest out of the presence of the jury. While that case indicated quite clearly that this would be the better practice, it did not make it mandatory, particularly where it was later determined that the evidence should be admitted. In Smith v. State, 189 Md. 596, 56 A. 2d 818 the Court of Appeals held that although better practice required a trial judge to conduct a hearing concerning the voluntariness of a confession outside of the presence of the jury, there was no error where it was later determined that the confession was voluntary and should be admitted into evidence. Recently the Supreme Court of the United States approved the same ruling in the case of Pinto v. Pierce, 389 U. S. 31, 88 S. Ct. 192, 19 L.Ed. 31. We hold that while it would have been better practice for the trial judge to have made a preliminary determination as to the validity of the arrest as is indicated in Farrow v. State, supra, that inasmuch as it was determined that the evidence should be admitted, there was .no error.

Judgment affirmed.

      . We do not know why the trial judge sustained the objection; compare Farrow v. State, 233 Md. 526, 197 A. 2d 434 and Graham v. State, 239 Md. 521, 212 A. 2d 287.

      . Alabama—-Hodge v. State, 98 Ala. 10, 13 So. 385, 39 Am. St. R. 17 (1893); Simpson v. State, 111 Ala. 6, 20 So. 572 (1896); Little v. State, 145 Ala. 662, 39 So. 674 (1905); Richardson v. State, 145 Ala. 46, 41 So. 82, 8 Ann. Cas. 108 (1906); Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. R. 60, 10 Ann. Cas. 1126 (1906); McDonald v. State, 165 Ala. 85, 51 So. 629 (1909); Gallant v. State, 167 Ala. 60, 65, 52 So. 739, 741 (1910); Allen v. State, 8 Ala. App. 228, 62 So. 971, 1917E L.R.A. 730 (1913); Loper v. State, 205 Ala. 216, 87 So. 92 (1920); Moore v. State, 26 Ala. App. 607, 164 So. 761 (1935); Orr v. State, 236 Ala. 462, 183 So. 445 (1938); Burks v. State, 240 Ala. 587, 200 So. 418 (1941); Aaron v. State, 271 Ala. 70, 122 So. 2d 360 (1960)

        Arkansas—Holub v. State, 116 Ark. 227, 172 S. W. 878 (1916); Padgett v. State, 125 Ark. 471, 188 S. W. 1158 (1916); Cranford v. State, 130 Ark. 101, 197 S. W. 19 (1917); McDonald v. State, 145 Ark. 581, 224 S. W. 976 (1920); Adams v. State, 149 Ark. 669, 235 S. W. 372 (1921); West v. State, 150 Ark. 555, 234 S. W. 997 (1921); Fox v. State, 156 Ark. 428, 246 S. W. 863 (1923); Doyle v. State, 166 Ark. 505, 266 S. W. 459 (1924); Rolen v. State, 191 Ark. 1120, 89 S. W. 2d 614 (1936)

        Florida—Davis v. State, 46 Fla. 137, 35 So. 76 (1903); Davis v. State, 47 Fla. 26, 36 So. 170 (1904); Tomlinson v. State, 129 Fla. 658, 176 So. 543 (1937)

        Georgia—Fite v. State, 16 Ga. App. 22, 84 S. E. 485 (1915); Aiken v. State, 16 Ga. App. 848, 86 S. E. 1076 (1915); Harris v. State, 17 Ga. App. 723, 88 S. E. 121 (1916); Troup v. State, 26 Ga. App. 623, 107 S. E. 75 (1921); Schell v. State, 72 Ga. App. 804, 35 S. E. 2d 325 (1945); Mitchell v. State, 202 Ga. 247, 42 S. E. 2d 767 (1947)

        Kansas—State v. Adams, 85 Kan. 435, 116 P. 608, 35 L.R.A. (N.S.) 870 (1911); State v. Mooney, 93 Kan. 353, 144 P. 228 (1914); State v. Sweet, 101 Kan. 746, 168 P. 1112 (1917); State v. Schalansky, 112 Kan. 87, 209 P. 816 (1922); State v. Evans, 115 Kan. 538, 224 P. 492; State v. Fixley, 118 Kan. 1, 233 P. 796 (1925); State v. Netherton, 133 Kan. 685, 3 P. 2d 495 (1931)

        Kentucky—Pedigo v. Commonwealth, 103 Ky. 41, 44 S. W. 143, 19 Ky. L. Rep. 1723, 82 Am. St. R. 566, 42 L.R.A. 432 (1898); Allen v. Commonwealth, 26 Ky. L. Rptr. 807, 82 S. W. 589 (1904); Denham v. Commonwealth, 119 Ky. 508, 84 S. W. 538 (1905); Sprouse v. Commonwealth, 132 Ky. 269, 116 S. W. 344 (1909); Blair v. Commonwealth, 171 Ky. 319, 188 S. W. 390 (1916); Blair v. Commonwealth, 181 Ky. 218, 204 S. W. 67 (1918); Meyers v. Commonwealth, 194 Ky. 523, 240 S. W. 71 (1922); Springs v. Commonwealth, 198 Ky. 258, 248 S. W. 535 (1923); Hays v. Commonwealth, 211 Ky. 716, 277 S. W. 1004 (1925); Stidham v. Commonwealth, 221 Ky. 49, 297 S. W. 929 (1927); Keaton v. Commonwealth, 223 Ky. 645, 4 S. W. 2d 675 (1928); Alsept v. Commonwealth, 240 Ky. 395, 42 S. W. 2d 517 (1931); Bullock v. Commonwealth, 241 Ky. 799, 45 S. W. 2d 449 (1932); Bullock v. Commonwealth, 249 Ky. 1, 60 S. W. 2d 108, 94 A.L.R. 407 (1933); Short v. Commonwealth, 251 Ky. 819, 66 S. W. 2d 33 (1933); Kelly v. Commonwealth, 259 Ky. 770, 83 S. W. 2d 489 (1935); Crabtree v. Commonwealth, 260 Ky. 575, 86 S. W. 2d 301 (1935); Brummett v. Commonwealth, 263 Ky. 460, 92 S. W. 2d

      . Illinois—People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, 1915A Ann. Cas. 1171 (1914); People v. Wolf, 334 Ill. 218, 165 N. E. 619 (1929); People v. Griffin, 48 Ill. App. 2d 148, 198 N. E. 2d 115 (1964)

        Indiana—Stout v. State, 174 Ind. 395, 92 N. E. 161, 1912D Ann. Cas. 37 (1910); Ruse v. State, 186 Ind. 237, 115 N. E. 778 L.R.A. 1917E 726 (1917)

        Iowa—McClurg v. Brenton, 123 Iowa 368, 98 N. W. 881 (1904); State v. Grba, 196 Iowa 241, 194 N. W. 250 (1923)

        Montana—State v. Storm, 125 Mont. 346, 238 P. 2d 1161 (1952) Nebraska—Brott v. State, 70 Neb. 395, 97 N. W. 593, 63 L.R.A. 789 (1903)
      New York—People v. Whitlock, 183 App. Div. 482, 171 N. Y. S. 109, 36 N.Y.C.R. 524 (1918) 787 (1936); Daugherty v. Commonwealth, 293 Ky. 147, 168 S. W. 2d 564 (1943)

        Louisiana—State v. King, 144 La. 430, 80 So. 615 (1919); State v. Harrison, 149 La. 83, 88 So. 696 (1921); State v. Davis, 149 La. 1009, 90 So. 385 (1921); State v. Davis, 154 La. 295, 97 So. 449 (1923); State v. Greene, 210 La. 157, 26 So. 2d 487 (1946)

        Massachusetts—Commonwealth v. Smith, 342 Mass. 180, 182, 172 N. E. 2d 597 (1961); Commonwealth v. LePage, 226 N. E. 2d 200 (Mass. 1967)

        Minnesota—Crosby v. Moriarty, 148 Minn. 201, 181 N. W. 199 (1921)

        Mississippi—Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285 (1908); Carter v. State, 106 Miss. 507, 64 So. 215 (1914); Scott v. State, 108 Miss. 464, 66 So. 973 (1915); Harris v. State, 143 Miss. 102, 108 So. 446 (1926); Boatwright v. State, 143 Miss. 676, 109 So. 710 (1926); Fisher v. State, 150 Miss. 206, 116 So. 745 (1928); Hinton v. State, 175 Miss. 308, 166 So. 762 (1936)

        Missouri—State v. Rasco, 239 Mo. 535, 144 S. W. 449 (1912); State v. White, 195 S. W. 994 (Mo. 1917); State v. Dooms, 280 Mo. 84, 217 S. W. 43 (1919); State v. Barnes, 289 S. W. 562 (Mo. 1926); State v. Steely, 327 Mo. 16, 33 S. W. 2d 938 (1930); State v. Freyer, 330 Mo. 62, 48 S. W. 2d 894 (1932); State v. Shawley, 334 Mo. 352, 67 S. W. 2d 74, 86 (1933); State v. Long, 336 Mo. 630, 80 S. W. 2d 154 (1935)
      North Carolina—State v. Moore, 129 N. C. 494, 39 S. E. 626, 55 L.R.A. 96 (1901); State v. Hunter, 143 N. C. 607, 56 S. E. 547, 118 Am. St. R. 830 (1907); State v. Freeman, 146 N. C. 615, 60 S. E. 986 (1908); State v. Spivey, 151 N. C. 676, 65 S. E. 995 (1909); State v. Norman, 153 N. C. 591, 68 S. E. 917 (1910); State v. Wiggins, 171 N.C. 813, 89 S. E. 58 (1916); State v. McIver, 176 N. C. 718, 96 S. E. 902 (1918); State v. Yearwood, 178 N. C. 813, 101 S. E. 513 (1919); State v. Palmer, 178 N. C. 822, 101 S. E. 506 (1919); State v. Robinson, 181 N. C. 516, 106 S. E. 155 (1921); State v. McLeod, 196 N. C. 542, 146 S. E. 409 (1929); State v. McLeod, 198 N. C. 649, 152 S. E. 895 (1930); State v. Lee, 211 N. C. 326, 190 S. E. 234 (1939); State v. Dorsett, 245 N. C. 47, 95 S. E. 2d 90 (1956); State v. Rowland, 263 N. C. 353, 139 S. E. 2d 661 (1965)

        Ohio—State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 Am. St. R. 479, 11 Ann. Cas. 1181, 13 L.R.A. (N. S.) 341 (1907); State v. Hall, 3 Ohio N. P. 125, 4 Ohio Super. & C. P. 147; Baum v. State,
        27 Ohio C.C.R. 569; State v. Brooks, 1 Ohio Dec. Reprint 407, 9 West. L.J. 109

        Oklahoma—Buck v. State, 77 Okla. Crim. 17, 138 P. 2d 115 (1943) Pennsylvania—Commonwealth v. Hoffman, 52 Pa. Super. 272 (1912)
      South Carolina—State v. Brown, 103 S. C. 437, 88 S. E. 21, 1916D L.R.A. 1295 (1916)

        Tennessee—Copley v. State, 153 Tenn. 189, 281 S. W. 460, 462 (1926)

        Texas—Parker v. State, 46 Tex. Crim. 461, 80 S. W. 1008, 108 Am. St. R. 1021, 3 Ann. Cas. 893 (1904)
      West Virginia—State v. McKinney, 88 W. Va. 400, 106 S. E. 894 (1921)

      . See 8 R.C.L. Criminal Law §177 (1915)
      16 C.J. Criminal Law §1095 at 564-65 (1918)
      22A C.J.S. Criminal Law §646 at 533-34 (1961)
      26 Am. Jur. Homicide §331 at 379-80 (1940)
      13 Am. Jur. 2d Burglary §44 (1964)
      29 Am. Jur. 2d Evidence §§378-79 (1967)
      2 Elliott, Evidence §1253 (1904)
      1 Underhill, Criminal Evidence §13 at 250-51 (5th ed. 1956;
      5 Minn. L. Rev. 228 (1921)
      33 Yale L- Rev. 216 (1923)
      9 Wash. & Lee L. Rev. 248 (1952)
      94 A.L.R. 413, 419-20 (1935)
      And the cases cited in the above; nearly all majority cases stress that a proper foundation be laid.

      . See State v. King, 144 La. 430, 80 So. 615 (1919); State v. Barnes, 289 S. W. 562 (Mo. 1926).

      . In general e.g. see Richardson v. State, 145 Ala. 46, 41 So. 82, 8 Ann. Cas. 108 (1906); Rolen v. State, 191 Ark. 1120, 89 S. W. 2d 614 (1936); People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, 1915A Ann. Cas. 1171 (1914); State v. Adams, 85 Kan. 435, 116 P. 608, 35 L.R.A. (N.S.) 870 (1911); State v. Harrison, 149 La. 83, 88 So. 696 (1921); Harris v. State, 143 Miss. 102, 108 So. 446 (1926); State v Rasco, 239 Mo. 535, 144 S. W. 449 (1912); State v. Steely, 327 Mo. 16, 33 S. W. 2d 938 (1930); State v. Freyer, 330 Mo. 62, 48 S. W. 2d 894 (1932); cf. McDonald v. State, 145 Ark. 581, 224 S. W. 976 (1920).

      . Experience of the dog e.g. see 8 R.C.L. Criminal Law §177 (1915); Holub v. State, 116 Ark. 227, 172 S. W. 878 (1916); Adams v. State, 149 Ark. 669, 235 S. W. 372 (1921); Schell v. State, 72 Ga. App. 804, 35 S. E. 2d 325 (1945); State v. Evans, 115 Kan. 538, 224 P. 492 (1924); Alsept v. Commonwealth, 240 Ky. 395, 42 S. W. 2d 517 (1931); Brummett v. Commonwealth, 263 Ky. 460, 92 S. W. 2d 787 (1936); State v. King, 144 La. 430, 80 So. 615 (1919); Carter v. State, 106 Miss. 507, 64 So. 215 (1914); State v. Barnes, 289 S. W. 562 (Mo. 1926); State v. Yearwood, 178 N. C. 813, 101 S. E. 513; (1919); State v. McKinney, 88 W. Va. 400, 106 S. E. 894 (1921); cf. Kelly v. Commonwealth, 259 Ky. 770, 83 S. W. 2d 489 (1935).

      . Reliability of the dog e.g. see 8 R.C.L. Criminal Law §177’ (1915); Davis v. State, 46 Fla. 137, 35 So. 76 (1903); Mitchell v. State, 202 Ga. 247, 42 S. E. 2d 767 (1964); State v. Adams, 85 Kan. 435, 116 P. 608, 35 L.R.A. (N.S.) 870 (1911); State v. King, 144 La. 430, 80 So. 615 (1919); Harris v. State, 143 Miss. 102, 108 So. 446 (1926); Hinton v. State, 175 Miss. 308, 166 So. 762 (1936); State v. Robinson, 181 N. C. 516, 106 S. E. 155 (1921); cf. McDonald v. State, 145 Ark. 581, 224 S. W. 976 (1920); State v. Moore, 129 N. C. 494, 39 S. E. 626, 55 L.R.A. 96 (1901).

      . Reputation of the dog e.g. see Holub v. State, 116 Ark. 227, 172 S. W. 878 (1916); State v. Yearwood, 178 N. C. 813, 101 S. E. 513 (1919).

      . Skill, habit of the dog e.g. see Harris v. State, 17 Ga. App. 723, 88 S. E. 121 (1916); Daugherty v. Commonwealth, 293 Ky. 147, 168 S. W. 2d 564 (1943); State v. Rasco, 239 Mo. 535, 144 S. W. 449 (1912); Yearwood v. State, 178 N. C. 813, 101 S. E. 513 (1919); cf. Kelly v. Commonwealth, 259 Ky. 770, 83 S. W. 2d 489 (1935).

      . Training of the dog e.g. see Little v. State, 145 Ala. 662, 39 So. 674 (1905); Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. R. 60, 10 Ann. Cas. 1126 (1906); Gallant v. State, 167 Ala. 60, 52 So. 739 (1910); Allen v. State, 8 Ala. App. 228, 62 So. 971, 1917E L.R.A. 730 (1913); Loper v. State, 205 Ala. 216, 87 So. 92 (1920); Moore v. State, 26 Ala. App. 607, 164 So. 761 (1935); Cranford v. State, 130 Ark. 101, 197 S. W. 19 (1917); Adams v. State, 149 Ark. 669, 235 S. W. 372 (1921); Doyle v. State, 166 Ark. 505, 226 S. W. 459 (1924); Davis v. State, 46 Fla. 137, 35 So. 76 (1903); Fite v. State, 16 Ga. App. 22, 84 S. E. 485 (1915); Evans v. State, 115 Kan. 538, 224 P. 492 (1924); Denham v. Commonwealth, 119 Ky. 508, 84 S. W. 538 (1905); Sprouse v. Commonwealth, 132 Ky. 269, 116 S. W. 344 (1909); Blair v. Commonwealth, 181 Ky. 218, 204 S. W. 67 (1918); Meyers v. Commonwealth, 194 Ky. 523, 240 S. W. 71 (1922); Alsept v. Commonwealth, 240 Ky. 395, 42 S. W. 2d 517 (1931);
        Brummett v. Commonwealth, 363 Ky. 460, 93 S. W. 2d 787 (1936); Daugherty v. Commonwealth, 293 Ky. 147, 168 S. W. 2d 564 (1943); State v. King, 144 La. 430, 80 So. 615 (1919); Carter v. State, 106 Miss. 507, 64 So. 215 (1914); Harris v. State, 143 Miss. 102, 108 So. 446 (1936); Boatwright v. State, 143 Miss. 676, 109 So. 710 (1936); Hinton v. State, 175 Miss. 308, 166 So. 762 (1936); State v. Hunter, 143 N. C. 607, 56 S. E. 547, 118 Am. St. R. 830 (1907); State v. Spivey, 151 N. C. 676, 65 S. E. 995 (1909); State v. Norman, 153 N. C. 591, 68 S. E. 917 (1910); State v. Yearwood, 178 N. C. 813, 101 S. E. 513 (1919); Buck v. State, 77 Okla. Crim. 17, 138 P. 2d 115 (1943); Copley v. State, 153 Tenn. 189, 281 S. W. 460 (1926); State v. McKinney, 88 W. Ya. 400, 106 S. E. 894 (1921); cf. Sprouse v. Commonwealth, 132 Ky. 269, 116 S. W. 344 (1909).

      . State v. Davis, 154 La. 295, 97 So. 449 (1923); State v. McIver, 176 N. C. 718, 96 S. E. 902 (1918); State v. Brooks, 1 Ohio Dec. Reprint 407, 9 West L. J. 1096.

      . Brott v. State, 70 Neb. 395, 97 N. W. 593, 63 L.R.A. 789 (1903); People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804 (1914); cf. State v. Rasco, 239 Mo. 535, 144 S. W. 449 (1912); State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 Am. St. R. 479, 11 Ann. Cas. 1181, 13 L.R.A. (N. S.) 341 (1907).

      . Richardson v. State, 145 Ala. 46, 41 So. 82, 8 Ann. Cas. 108 (1906); Aaron v. State, 271 Ala. 70, 122 So. 3d 360 (1960); State v. Adams, 85 Kan. 435, 116 P. 608, 35 L.R.A. (N. S.) 870 (1911); State v. Rasco, 239 Mo. 535, 144 S. W. 449 (1912); State v. White, 195 S. W. 994 (Mo. 1917); State v. Storm, 125 Mont. 346, 238 P. 2d 1161 (1951); cf. Schell v. State, 72 Ga. App. 804, 35 S. E. 2d 325 (1945). Also see: 8 R.C.L. Criminal Law §177 (1915); 16 C. J. Criminal Lazv §1095 at 564 (1918); 32A C.J.S. Criminal Lazo §646-at 533 (1961); 29 Am. Jur. 2d Evidence §378 at 429 (1967); 9 Wash. & Lee L. Rev. 248 (1952).

      . State v. Brown, 103 S. C. 437, 88 S. E. 21, 1916D L.R.A. 1295 (1916); also see Fite v. State, 16 Ga. App. 22, 84 S. E. 485 (1915).

      . State v. Netherton, 133 Kan. 685, 3 P. 2d 495 (1931); Harris v. State, 143 Miss. 102, 108 So. 446 (1920); State v. Steely, 327 Mo. 16, 33 S. W. 2d 938 (1930); also see preceding footnote; cf. State v. Norman, 153 N. C. 591, 68 S. E. 917 (1910).

      . See 16 C. J. Criminal Law §1095 (1918)
      22A C.J.S. Criminal Law §646 (1916)
      33 C.J.S. Criminal Law §907 (1961)
      36 Am. Jur. Homicide §463 (1940)
      29 Am. Jur.2d Evidence §§378-79 (1967)
      30 Am. Jur.2d Evidence §1146 (1967)
      35 L.R.A. (N.S.) 870, 872 (1912)
      1917E L.R.A. 726, 729
      94 A.L.R. 413, 425-26 (1935)
      1 Underhill, Criminal Evidence §130 (5th ed. 1956)
      2 Wharton, Criminal Evidence §668 (12th ed. 1955)
      5 Minn. L. Rev. 228, 229 (1921)
      E.g. see Meyers v. Commonwealth, 194 Ky. 523, 240 S. W. 71 (1922); State v. King, 144 La. 430, 80 So. 615 (1919); State v. Rasco, 239 Mo. 535, 144 S. W. 449 (1912); Parker v. State, 46 Tex. Crim. 461, 80 S. W. 1008, 108 Am. St. R. 1021, 3 Ann. Cas. 893 (1904).

      . 94 A.L.R. 413, 415-16 (1935); see State v. McLeod, 196 N. C. 542, 146 S. E. 409 (1929).

      . See: 8 R.C.L. Criminal Law §177 (1915)
      22A C.J.S. Criminal Law §646 at 534-5 (1961)
      29 Am. Jur.2d Evidence §§378-79 at 431 (1967)
      1 Underhill, Criminal Evidence §130 at 250-51 (5th ed. 1956)
      E.g. see: Fite v. State, 16 Ga. App. 22, 84 S. E. 485 (1915); Mitchell v. State, 203 Ga. 247, 42 S. E. 2d 767 (1947); Blair v. Commonwealth, 181 Ky. 218, 304 S. W. 67 (1918); Bullock v. Commonwealth, 249 Ky. 1, 60 S. W. 2d 108, 94 A.L.R. 407 (1933); Harris v. State, 143 Miss. 102, 108 So. 446 (1926); State v. Shawley, 334 Mo. 352, 67 S. W. 3d 74 (1933); State v. Wiggins, 171 N. C. 813, 89 S. E. 58 (1916); cf. State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 Am. St. R. 479, 11 Ann. Cas. 1181, 13 L.R.A. (N. S.) 341 (1907).

      . 8 R.C.L. Criminal Law §177 (1915).

      . Commonwealth v. LePage, Mass. , 226 N. E. 2d 200 (1967); State v. Rowland, 263 N. C. 353, 139 S. E. 2d 661 (1967).

      . See: 16 C.J. Criminal Law §1584 at 774 (1918)
      23 C.J.S. Criminal Law §920 at 649 n. 37 (1961)
      94 A.R.R. 413, 416, 423-25 (1935)
      1 Wigmore §177 n. 3 (3d. ed. 1940)
      cf. 9 Wash. & Ree R. Rev. 248, 252 (1952) which points out that the wrong man may be identified; Meyers v. Commonwealth, 194 Ky. 523, 240 S. W. 71, 94 A.L.R. 413, 424 (1922).

      . E.g. see State v. McKinney, 88 W. Va. 400, 106 S. E. 894 (1921); McClurg v. Brenton, 123 Iowa 368, 98 N. W. 881 (1904); State v. White, 195 S. W. 994 (Mo. 1917).

      . See supra, footnote 17; also see 8 R.C.R. Criminal Law §177 (1915); 16 C.J. Criminal Law §1584 at 774 n. 59C (2) (1918); cf. State v. Moore, 129 N. C. 494, 39 S. E. 626, 55 L.R.A. 96 (1901).

      . See supra, footnote 3; 1 Underhill Criminal Evidence §130 at 250 (5th ed. 1956) feels that Minnesota would follow the minority, Crosby v. Moriarty, 148 Minn. 201, 181 N. W. 199 (1921). But Minnesota is categorized as a majority state because like South Carolina it has a statute which allows such evidence for the purpose of identification, see State v. Brown, 103 S. C. 437, 88 S. E. 21, 1916D L.R.A. 1295 (1916). But the proper foundation was not laid in Crosby, supra. See 94 A.L.R. 413, 415 (1935); 29 Am. Jur. 2d Evidence §378 (1967).

      . See 2 Wigmore §177 at 637 (3d ed. 1940)
      1 Underhill, §130 at 250 (5th ed. 1956)
      5 Minn. L. Rev. 228 (1921)
      33 Yale L. Rev. 216 (1923)

      . 94 A.L.R. 413, 416 (1935)

      . See: Bullock v. Commonwealth, 241 Ky. 799, 45 S. W. 2d 449 (1932); Brott v. State, 70 Neb. 395, 97 N. W. 593, 63 L.R.A. 789 (1903); State v. Hall, 3 Ohio N.P. 125, 4 Ohio Super. & C. P. 147; also see McWhorter, “The Bloodhound as a Witness”, 54 Am. L. Rev. 109 (1924); 94 A.L.R. 413, 418-19 (1935).

      . 2 Wigmore, Evidence §177 at 636-37 (3d ed. 1940).

      . 94 A.L.R. 413, 416 (1935).

      . See: 53 Am. Jur. Trial §§382, 610 (1945); 1 Underhill, Criminal' Evidence §130 at 250 (5th ed. 1956) (and cases cited therein).

      . For a few cases following the majority view where the evidence was excluded see: Aaron v. State, 271 Ala. 70, 122 So. 2d 360 (1960); McDonald v. State, 145 Ark. 581, 224 S. W. 976 (1920); Allen v. Commonwealth, 26 Ky. L. Rptr. 807, 82 S. W. 589 (1904); Sprouse v. Commonwealth, 132 Ky. 269, 116 S. W. 344 (1909); Blair v. Commonwealth, 171 Ky. 319, 188 S. W. 390 (1916); Bullock v. Commonwealth, 241 Ky. 799, 45 S. W. 2d 449 (1932); Carter v. State, 106 Miss. 507, 64 So. 215 (1914); Copley v. State, 153 Tenn. 189, 281 S. W. 460 (1926).

      . See, generally: 16 C.J. Criminal Law §1095 at 565 (1918)
      22A C.J.S. Criminal Law §646 (1961)
      58 Am. Jur. Witness §648 (1948)
      94 A.L.R. 413, 416-18 (1935)
      McWhorter, “The Bloodhound as a Witness”
      54 Am. L. Rev. 109, 113 (1920)
      5 Minn. L. Rev. 228 (1921)
      33 Yale L. Rev. 216 (1923)
      9 Wash. & Lee L. Rev. 248, 253 (1952)

      . See e.g. State v. Fixley, 118 Kan. 1, 233 P. 796 (1925); Meyers v. Commonwealth, 194 Ky. 523, 240 S. W. 71 (1922); State v. Freyer, 330 Mo. 62, 48 S. W. 2d 894 (1932); cf. State v. Hall, 3 Ohio N. P. 125, 4 Ohio Super. & C.P. 147.

      . See 9 111. L. Rev. 191 (1915) discusses People v. Pfanschmidt and states the minority view.

      . An earlier Indiana case Stout v. State, 174 Ind. 395, 93 N. E. 161, 1913D Ann. Cas. 37 (1910) had not decided the question.

      . An earlier Iowa case, McClurg v. Brenton, 133 Iowa 368, 98 N. W. 881 (1904) had not decided the question.

      . See 94 A.R.R. 413, 416 (1935).

      . It should be noted, however, that under Maryland Rule 739 d. 3., that in all jury trials conducted after September 1, 1967 such evidence must be received out of the presence of the jury. We do not now decide whether or not the violation of this rule would be reversible error. The present trial was begun on March 9, 1967 and concluded on March 10, 1967.


source: Caselaw Access Project

author: Anderson, J.,

license: Public Domain

text:
    RONALD B. ANDERSON AND DOUGLAS A. WASHINGTON, JR. v. STATE OF MARYLAND
    [No. 333,
    Initial Term, 1967.]

      Decided March 18, 1968.

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

      Louis Peregoff, with whom were A. Samuel Peregoff and William S. Cooper on the brief, for appellant Anderson; and Richard K. Jacobsen, on the brief, for appellant Washington.

      Edward F. Borgerding, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Howard L. Cardin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

On October 31, 1966, the appellants, Ronald B. Anderson and Douglas A. Washington, Jr., were convicted in the Criminal Court of Baltimore by the court, sitting without a jury, Judge J. Gilbert Prendergast presiding, of robbery. On November 23, 1966, Anderson was sentenced to ten years in the Maryland Penitentiary and Washington was sentenced to not more than ten years in the Maryland Correctional Institution.

Appellant Anderson raises two contentions on appeal :

1. That the appellant was deprived of due process of law under Article IV, Section 15, of the Constitution of Maryland, Annotated Code of Maryland (1957) ; and under the Fourteenth Amendment to the Constitution of the United States, because of failure of the State to diligently process his appeal and stand the case for hearing upon the transmission of the record.
2. That the appellant was deprived of due process of law under the Sixth and Fourteenth Amendments to the Constitution of the United States where he was forced to go to trial with counsel to whom he strenuously objected prior to the actual commencement of his trial.

Appellant Washington’s sole contention on appeal is that the evidence was not sufficient to sustain the conviction.

From the evidence adduced below, the trial court could properly find that on July 19, 1966, at 3:15 p.m., Joseph Klein, a salesman for the Madeira Wine and Liquor Company, left a customer’s store at Franklin and Fremont Avenues in the City of Baltimore, and was on his way to his automobile when he was yoked from the rear by three men. Mr. Kein was knocked to the pavement, his pockets were ripped out, and checks, plus cash amounting to $30 or $40, were taken. Three police officers personally observed the appellants in the commission of the crime. The officers immediately sought to apprehend the three assailants who, upon noting the presence of the officers, took flight in an attempt to escape. The officers remained in hot pursuit with Officer Frederick Entz pursuing Washington and Officer Howard Saukitis pursuing Anderson. Appellant, holding four of the stolen checks, was apprehended by Officer Saukitis after being shot by the officer. Appellant Washington’s flight also culminated in his apprehension by another officer after a long involved path of flight. In court, both Officers Entz and Saukitis identified the appellants as the assailants of Mr. Klein.

Appellant Anderson did not take the stand. At trial, he requested a postponement to secure unknown witnesses. The request was denied. Appellant then noted his discontent with his appointed counsel contending his counsel was unprepared and noting for the record his desire to have different counsel.

Appellant Washington denied his participation in the robbery but admitted being chased.

Following the conviction, appellant Anderson moved for a new trial urging the court to appoint different counsel to argue the motion. At that hearing, he admitted he had no additional witnesses to produce.

Ronald B. Anderson

Appellant’s first contention is without merit. Appellant Anderson urges that the delay involved in the processing of his appeal was “substantial and seriously prejudicial” and a direct product of the State evading its burden to pursue the matter by “shifting the burden” to the appellant. Appellant places great import upon Article IV, Section 15 of the Maryland Constitution stressing the following phrase respecting an expeditious hearing on appeal “* * * and all cases shall stand for hearing at the first term after the transmission of the record.” In further support of his contention, appellant culls a statement from dicta in Garcia v. U. S., 10 F. 2d 355 (1926), wherein that court issued a reprimand to the litigants for failing to submit the case for appellate review or in the alternative make a motion to dismiss for want of prosecution for a period encompassing two years and eight months, when it “should have been heard and disposed of as part of the October list, 1923.”

The contention that said delay was “substantial and seriously prejudicial” fails to set out any supporting data to substantiate what on the record constitutes a bald allegation. The record reveals that appellant’s appeal was joined with that of Washington and that the time for filing of the brief expired initially on April 3, 1967 and counsel for Washington requested an extension, which was agreed to by stipulation, to May 3, 1967, to June 5, 1967, to June 16, 1967, to July 7, 1967, with the brief being finally filed on August 29, 1967. During this entire period, appellant Anderson neither filed for an extension of time nor filed his brief. Due to illness of appellant’s original appeals counsel, new counsel was appointed on November 14, 1967. The appellant’s reliance upon Article IV, Section 15, is ill founded since that section was rewritten by the Amendment of 1966 to the Maryland Constitution, ratified on November 8, 1966, deleting the words relied upon. This appeal being filed on December 7, 1966 removes same from the old section.

In the face of the record, it is clear that appellant Anderson has only his own acute procrastination to hold accountable for the delay herein involved.

Appellant’s second contention is also without merit. Appellant stated below that he did not want to be represented by the court-appointed counsel assigned to him. The record discloses that appellant asked for and was granted a postponement, ostensibly to secure private counsel, on September 13, 1966, when brought before the court for arraignment. On September 23, 1966, appellant still had not obtained counsel so a not guilty plea was entered by the court, and on October 26, 1966 counsel was appointed. On October 27, 1966, a motion for discovery was filed and trial was held on October 31, 1966. At trial, appellant requested another postponement to secure unknown witnesses, which was denied. Appellant contended that his court-appointed counsel had only seen him on two occasions and therefore could not be properly prepared to represent him. With respect to the unknown witnesses, counsel had requested their names, but appellant failed to furnish the names and subsequently admitted, at the motion for the new trial, that he did not have any such witnesses.

Obviously, a defendant is entitled to employ counsel of his own choice who is willing to take his case so long as he is able to satisfy the fee required. However, a defendant is not entitled, as a matter of right, to employ counsel of his own choice and require the State to pay the fee out of public funds. Rather, if the defendant is indigent, the court may appoint counsel and such court-appointed counsel is payable by the State. Murray v. Director, 228 Md. 658, 660, 179 A. 2d 878 (1962).

In Woodell v. State, 223 Md. 89, 95, 162 A. 2d 468 (1960), the Court of Appeals stated:

“The relationship of attorney and client can be and, we think, is as effectively established where counsel for an indigent defendant is appointed by the court as where he is employed by a solvent defendant at his own expense.”

That Court, at p. 995, went on to further state, by adoption of the views expressed by the Supreme Court of Georgia in Fambles v. State, 97 Ga. 625, at 628, 25 S. E. 365 (1896).

“Attorneys are officers of court, and such officers are presumed to do as the law and their duty require them.
When an attorney is appointed by the court to defend a person accused of crime, who is unable to employ counsel, it is his duty to do so; and it is to be presumed that he will discharge his full duty in the premises. It is also to be presumed that the court, in appointing counsel for this purpose, will appoint attorneys who have sufficient skill and learning to defend the accused properly.”

The fact that counsel is not privately retained but is court-appointed is irrelevant to the issue of competency. See McCloskey v. State, 230 Md. 635, 638, 187 A. 2d 833 cert. den. 374 U. S. 851 (1963).

Here appellant urges that he was improperly represented because his counsel made only two visits to him in preparation for trial. In Miller v. State, 1 Md. App. 653, 656, 232 A. 2d 548 (1967), this'Court noted that “the fact that the trial counsel only made one visit to the appellant before the trial does not establish his incompetency, absent a showing that he was not afforded genuine and effective representation going to the fundamental fairness of the trial.” Appellant’s mere recitation of the number of personal visits by his attorney fails to satisfy the stricture found in Miller. Furthermore, “the refusal to discharge court-appointed counsel in accordance with the wishes of a defendant or appellant would not constitute error where * * * there is nothing in the record to even suggest that the attorney had not competently represented his client.” Johnson v. State, 237 Md. 283, 206 A. 2d 138 (1965) and cases cited therein. The law and facts of this case were relatively simple and it would appear that adequate preparation would not necessarily be very time consuming. In brief, there is nothing in the record before us to indicate either incompetency or to suggest improper preparation. Here the officers observed appellant Anderson participating in the commission of the crime, pursued him in flight, shot him, and apprehended him at the culmination of the flight. As we observed in Harris v. State, 2 Md. App. 408, 411, 234 A. 2d 781, 782 (1967), “[i]t would have taken a legal Houdini to have extricated the appellant from his difficulties.” Furthermore; to abide by the appellant’s urging would, as a practical matter, place the State’s judicial process in the untenable position of responding to every whim and fancy a defendant could devise to complicate and or frustrate the juridical processes and evolve the term “competent representation” into a farce.

Douglas A. Washington, Jr.

Appellant urges that the evidence was insufficient to sustain his conviction. The thrust of his argument is that during the chase the officer might have lost sight of the pursued momentarily, that appellant was proceeding to see his sick grandmother when arrested, and that the evidence was just as consistent with innocence as with guilt.

The test of the sufficiency of the evidence in a nonjury case is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Montague v. State, 3 Md. App. 66, 72, 237 A. 2d 816 (1968); Thomas v. State, 2 Md. App. 502, 507, 235 A. 2d 777 (1967); Chittum v. State, 1 Md. App. 205, 209, 228 A. 2d 628 (1967). In non-jury trials the weight of the evidence and the credibility of the witnesses rests within the determination of the trial judge. Dunlap v. State, 1 Md. App. 444, 230 A. 2d 690 (1967); Sadler v. State; 1 Md. App. 383, 230 A. 2d 372 (1967). Furthermore, in nonjury trials, the trial court in performing its duty of judging the credibility of witnesses may disbelieve the exculpatory statements made by the defendant. Carwell v. State, 2 Md. App. 45, 49-50, 232 A. 2d 903 (1967).

Appellants Washington and Anderson were positively identified by Officers Saukitis and Entz as the perpetrators of the crime. The officers personally observed them in the actual commission of the crime. Appellant Washington was observed on top of the victim going through his pockets. It is well established that the positive identification of a single eye-witness, if believed by the trier of facts, is ample evidence to sustain a conviction. Montague v. State, supra; Hutchinson v. State, 1 Md. App. 362, 367, 230 A. 2d 352 (1967); Crumb v. State, 1 Md. App. 98, 103, 227 A. 2d 369 (1967). Here we have two positive identifications.

Upon noting the presence of the police officers, the appellants took to flight with the officers in hot pursuit. The testimony fails to establish whether during the circuitous chase of appellant Washington through yards, alleys and houses, the appellant was or was not momentarily out of the sight of his pursuers; however, in view of the positive identification at the situs of the crime from whence the flight and pursuit originated, even if there had been momentary lapses, they would be of no meaningful significance.

It is well established that flight from the scene of a crime is an important factor that may be considered in determining guilt. Williams v. State, 3 Md. App. 58, 61, 237 A. 2d 822 (1968). As this Court stated in Williams v. State, supra:

“Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. * * * It is today universally conceded that the fact .of an accused’s flight, escape from custody, .resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” ■

Appellant’s presence at the immediate and exact spot where a crime was in the process of being committed was conclusively established. Such presence is an important factor for consideration in effecting a determination of guilt. Williams v. State, supra.

Upon our request, appellant Washington’s counsel submitted a revised brief. Therein, a letter by the appellant to his counsel, setting forth additional contentions, was printed verbatim. Appellant failed to submit either supporting facts or argument to support what therefore constitutes bald allegations. Furthermore, these contentions were not raised below and thus cannot be raised now for the first time. Maryland Rule 1085; Gaylord v. State, 2 Md. App. 571, 575, 235 A. 2d 783, 786 (1967); Sherrod v. State, 1 Md. App. 433, 438, 230 A. 2d 679, 682 (1967); Howard v. State, 1 Md. App. 379, 382, 230 A. 2d 115, 117 (1967); Charles v. State, 1 Md. App. 222, 229, 228 A. 2d 620, 624 (1967). However, had the question of incompetency of trial counsel been properly preserved it would have been totally without merit. An accused is entitled to a new trial on the ground of inadequate counsel only when that representation is so deficient as to go to the very fairness of the trial. Charles v. State, supra. The record below fails to support appellant’s contention.

The record below clearly establishes that not only were the appellants present at the immediate and exact spot where a crime was in the process of being committed and took to flight pursued by the officers culminating in their apprehension, but the officers positively identified the appellants as the culprits they observed in the actual commission of the crime, with appellant Washington atop the victim going through his pockets. This Court cannot reverse a judgment of the lower court unless it is shown that there was no legally sufficient evidence, or proper inferences therefrom, from which that court could find the accused guilty beyond a reasonable doubt. Howard v. State, supra, 382. Such prerequisite showing was not established in this case and we certainly cannot say that the judgment of the lower court was clearly erroneous. Maryland Rule 1086. Lucas v. State, 2 Md. App. 590, 593, 235 A. 2d 780, 782 (1967).

Judgments affirmed.


text:
    WILLIAM HENRY SPEAKS v. STATE OF MARYLAND
    [No. 42,
    September Term, 1967.]

      Decided March 18, 1968.

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

      James W. McAllister for appellant.

      Bernard L. Gilbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Charles E. Moylan, Jr., State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, William Henry Speaks, was tried in the Criminal Court of Baltimore before Judge Joseph R. Byrnes, sitting without a jury, on November 17, 1966, and was found guilty of maintaining a disorderly house and allied counts, possession of narcotics and allied counts, and pandering and allied counts. Appellant was sentenced to one year, five years, and five years, respectively, to be served consecutively, for a total of eleven years in the Maryland House of Correction.

Appellant’s sole contention raised on this appeal is that there was insufficient evidence to sustain the conviction.

On July 23, 1966, Officer James Hooper and three other officers of the Baltimore City Police Department went to 2353 Eutaw Place to investigate a complaint of a “disorderly house.” Officer Hooper had in his possession fifty dollars in prerecorded currency. Upon arrival, he rang the first floor doorbell, captioned by the name “Speaks,” and was then admitted to the premises by one Helen Harper. Officer Hooper and Miss Harper proceeded to enter into a transaction for the purpose of sexual relations. Miss Harper evaluated her services at twenty-five dollars, accepted that amount and left the bedroom, returning shortly thereafter unclothed and without the twenty-five dollars. Miss Harper then assumed a compromising position upon the bed in preparation of rendering her service when Officer Hooper identified himself as a police officer and arrested her. At that point, Miss Harper yelled, “Mickey, it’s the cops.” Officer Hooper than called for assistance shouting, “they are getting away.”

Officer Plitt observed two females attempting to leave the premises at the rear but upon seeing him they re-entered.

Officers Plitt and Woingust and Sergeant Shanahan responded to Officer Hooper’s call and entered the premises to render assistance.

A search ensued which uncovered two additional females but failed to reveal the whereabouts of the twenty-five dollars. However, two glassine bags were found by Officer Plitt while searching for the money. The officers believed the bags contained heroin hydrochloride. This belief was confirmed by a field test which revealed that the bags contained narcotics.

When questioned about the whereabouts of the money, Miss Harper stated that she had given it to “Phyllis” and that “Phyllis” had then left. Based upon their personal observation of the premises, the officers knew that this was a patent falsehood, as no one had left subsequent to Officer Hooper’s entry.

Having been called when the glassine bags and contents were discovered, the Narcotics Squad arrived causing an end to the interrogation of Miss Harper. Officer Pennington and Sergeant Wineke of the Narcotics Squad were informed as to what had transpired and then undertook a search of the premises, which ferreted out the appellant hidden in a closet in the middle bedroom, clutching a golf bag containing the sought after marked money along with $923.00 in cash and 35 glassine bags containing what was believed, and subsequently proved, to be heroin hydrochloride. In addition thereto, a black bag containing other narcotic drugs, paraphernalia, cutting agents and strainers and a blue suitcase containing suspected cocaine, 6,000 glassine bags, rubber bands, and a bottle believed to contain barbituates were discovered. Analysis revealed the contents to be heroin hydrochloride, dolophine, and morphine. An evaluation of the aforementioned items was estimated at $60,000.00.

When accosted, the appellant responded to the statement by Sergeant Shanahan “there is money in there” in reference to the contents of the golf bag, by stating “that is my money in there.”

Throughout the proceedings, the appellant objected to the admissibility of all the evidence on the grounds of an illegal search and seizure.

Appellant did not offer evidence but made Motions for Judgments of Acquittal, which were denied and guilty verdicts were returned on all counts. A Motion for a New Trial was made and denied.

Appellant contends that the search and seizure was illegal. In the instant case, the voluntary admittance of Officer Hooper into the apartment by Miss Harper and the subsequent transaction involving her offer of prostitution in exchange for a fee of twenty-five dollars clearly established sufficient evidence for Officer Hooper to deduce that the misdemeanor of keeping a disorderly house was being committed in his presence. Therefore, the arrest of Miss Harper and subsequently of appellant wdthout a warrant on this charge was proper. See Matthews v. State, 228 Md. 401, 403, 179 A. 2d 892 (1962). It is well established that an arrest is legal when it is the product of the observation of a misdemeanor committed in the presence of the arresting officer. Crosby v. State, 2 Md. App. 578, 588, 236 A. 2d 33 (1967); Crumb v. State, 1 Md. App. 98, 107, 227 A. 2d 369 (1967); Scott v. State, 1 Md. App. 481, 492, 231 A. 2d 728 (1967); Musgrove v. State, 1 Md. App. 540, 546, 232 A. 2d 272 (1967).

The call for assistance by Officer Hooper fully justified the entry into the apartment by the other officers in their effort to render assistance and protection to a fellow officer and to prevent the escape of the other occupants.

Having personally observed Miss Harper leave the room with the marked twenty-five dollars, paid to her for the services to be rendered, and her return a short while thereafter, sans money and apparel, the officer was justified in making the search of the area in an effort to retrieve the money. When this effort was confronted with the statement by Miss Harper that she had given the money to “Phyllis,” who purportedly had left, and the untruth of this statement being vividly apparent in the negating of such a possibility by the fact that the officers outside had not observed anyone leave, there was, under these circumstances, ample probable cause to believe the felonies of receiving money for procuring a female for a house of prostitution, Art. 27, § 428 (Code Replacement Vol. 1967), and receiving earnings of a prostitute, Art. 27, § 430 (Code Replacement Vol. 1967) had been committed and that the guilty party was still within the confines of the apartment with the ill gotten gains. Therefore, the continuation of the search for the marked money was reasonable as a search incidental to the arrest for the misdemeanor and the probable cause that the above felonies had been committed. See Mulcahy v. State, 221 Md. 413, 422, 158 A. 2d 80 (1960); David v. State, 1 Md. App. 666, 669-670, 232 A. 2d 553 (1967).

In pursuing this objective, the police uncovered the three glassine packets which they believed to be narcotics. This belief was confirmed by a field test. This matter had then progressed to the point where a felony, narcotics possession, was now being committed in the presence of the police officers and the continuing, search for the marked money was now joined in the threefold effort of securing the money, determining the existence of pandering, etc., and the search and seizure of the illegally possessed narcotics. Thus the police were justified in pursuing the search to recover all the fruits of the crimes and to fully determine whether there were other occupants involved and to prevent the destruction or removal of evidence and flight of those violating the law. See Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).

Disorderly House

Article 27, § 125 (Code Replacement Vol. 1967) sets forth the penalty for the crime of Disorderly House. In Curley v. State, 215 Md. 382, 390, 137 A. 2d 640 (1958), the Court of Appeals, speaking through Judge Prescott, stated:

“A house is disorderly if kept as a place where acts prohibited by statute are habitually indulged in or permitted. State v. Martin (N. J.), 73 A. 548, 549; 17 Am. Jur., Disorderly Houses, sec. 2: Hochheimer, op. cit., sec. 309.”

This definition was adopted in Rome and Modo v. State, 236 Md. 583, 587, 204 A. 2d 674 (1964).

In Reynolds v. State, 219 Md. 319, 325, 149 A. 2d 774 (1959), the Court of Appeals stated through Judge Horney that:

“[a]t common law a ‘bawdy-house’ or a ‘house of ill fame,’ in the popular sense of the terms, is a species of disorderly house.” Henson v. State, 62 Md. 231, 232 (1884). See also Beard v. State, 71 Md. 275, 17 A. 1044 (1889). Cf. Shaffer v. State, 87 Md. 124, 39 A.313 (1898).

Article 27, § 15 g (Code Replacement Vol. 1967) makes it unlawful to “engage in prostitution.” Article 27, § 16 (Code Replacement Vol. 1967) states:

“The term ‘prostitution’ shall be construed to mean the offering or receiving of the body for sexual intercourse for hire.”

Miss Harper’s entering into the aforenoted transaction to prostitute herself on the premises under the control and maintenance of the appellant, in addition to the presence of other women ready to be so engaged, and appellant’s possession of the marked money and acknowledgment of ownership, adequately establishes sufficient evidence to sustain the conviction of disorderly house, bawdy house, and allied counts arising from violations of Article 27, § 15 a, b, c, d and f of the Code Replacement Vol. 1967.

Narcotics

Article 27, § 277 (Code Replacement Vol. 1967) makes it “unlawful for any person to * * * possess * * * control * * * any narcotic drug, except as authorized by this subtitle.” See Smith v. State, 1 Md. App. 297, 303, 229 A. 2d 723 (1967). “Possession,” as used in this section is given its ordinary meaning. Bryant v. State, 229 Md. 531, 537, 185 A. 2d 190 (1962); Stewart v. State, 1 Md. App. 309, 318, 229 A. 2d 727 (1967). “Control,” as used in this section, is given its ordinary meaning, namely, “to exercise restraining or directing influence over” and also has been defined to relate to authority over what is not in one’s physical possession. Bryant v. State, supra, at 537. Under this section, possession of narcotics and control of narcotics are two separate offenses. Bryant v. State, supra; Stewart v. State, supra. Article 27, § 300 (Code Replacement Vol. 1967) provides that such violation constitutes a felony.

The appellant was charged under the above statute. Three glassine packets of heroin hydrochloride were discovered in the apartment under the control of the appellant and when he was found hiding in a closet, he had in his possession and control an abundance of such narcotics specified as prohibited by statute. Article 27, § 276 (Code Replacement Vol. 1967). In addition, appellant also possessed narcotic paraphernalia in violation of Article 27, § 297 (Code Replacement Vol. 1967).

We find that there was fully sufficient evidence to sustain the conviction.

Pandering

When accosted, the appellant admitted the money in the golf bag was his, including the marked twenty-five dollars. This together with his control of the premises constituted sufficient evidence to sustain the conviction for violation of Article 27, §§ 426,428 and 430 (Code Replacement Vol. 1967).

Appellant’s heavy reliance upon Wong Sun v. U. S., 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), is unfounded. The record is absent a showing of any verbal evidence derived from an unlawful entry and unauthorized arrest nor was there an objection noted on the theory that the probable cause leading to the arrest of the appellant was tainted. Therefore, the instant case does not come within the ambit of Wong Sun, nor for that matter was such review properly preserved by timely objection as necessary under Maryland Rule 1085. See Crowe and Williston v. State, 240 Md. 144, 150, 213 A. 2d 558 (1965); Prescoe v. State, 231 Md. 486, 494, 191 A. 2d 226 (1963); Reeves v. State, 3 Md. App. 195, 238 A. 2d 307; Tender v. State, 2 Md. App. 692, 696, 237 A. 2d 65 (1968); State v. Hill, 2 Md. App. 594, 603, 236 A. 2d 27, 31 (1967).

The test of sufficiency of the evidence in a nonjury case is “whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Montague v. State, 3 Md. App. 66, 72, 237 A. 2d 816 (1968); Thomas v. State, 2 Md. App. 502, 507, 235 A. 2d 777 (1967); Chittum v. State, 1 Md. App. 205, 209, 228 A. 2d 628 (1967). Upon the record before us, we find the trial judge’s finding was not clearly erroneous. Maryland Rule 1086.


author: P®r Curiam.

text:
    WARREN FOULTON WAUGH v. STATE OF MARYLAND
    [No. 87,
    September Term, 1967.]

      Decided March 18, 1968.

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

      John D. Hackett for appellant.

      Willicun B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B.

      Moylcm, Jr., State’s Attorney for Baltimore City, and James B. Dudley, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   P®r Curiam.

The Appellant, Warren Eoulton Waugh, was convicted of violating the narcotics laws by Judge J. Harold Grady, sitting without a jury, in the Criminal Court of Baltimore, and sentenced to two years in the Maryland House of Correction.

The record indicates that on January 17, 1967, members of the Baltimore City Police Department’s Narcotics Squad, armed with a search and seizure warrant, proceeded to 1905 Harlem Avenue. They broke open the door and entered the premises without prior announcement, believing, according to the testimony, that by doing so they would prevent the possible destruction of evidence. At the time of their entry the Appellant was lying on a couch and attempted to run away as they entered. He was thereupon stopped by one of the officers and shown the warrant.

A search of the premises was conducted and the officers recovered a plastic vial containing six glassine bags of white powder and six white tablets, all of which were found under a cushion of the sofa on which the Appellant had been lying. Similar glassine bags containing a residue of white powder were found on the mantle of the fireplace. The Appellant was then placed under arrest and advised of his rights. The record indicates that nothing was seized from the Appellant’s person but fresh needle marks were observed on his arms.

The Appellant testified in his own behalf and, while admitting that he was a user of narcotics, denied that he had attempted to run and likewise denied knowing that narcotics were under the cushion on which he was sleeping.

The Appellant first contends that his constitutional rights were violated by the unannounced breaking and entering into the premises. We disagree.

In Henson v. State, 236 Md. 518, the Court of Appeals had before it a nearly identical factual situation. There Judge Hammond (presently Chief Judge) reviewed the history of the general rule proscribing unannounced searches of dwellings and then clearly and succinctly delineated the exceptions as follows (pp. 522-523) :

“However, the rule often has been made subject to qualifications and exceptions even in states with statutes, so that by judicial decision announcement and demand are not a requisite where the facts make it evident the officers’ purpose is known or where they would frustrate the arrest, increase the peril of the arresting officer or permit the destruction of evidence.”
% *
“If the exigencies and practicalities of the situation demand entry without prior notice and demand, force may be used to break and enter under authority of a valid search warrant. Practicalities and exigencies in searches for narcotics require the element of surprise entry, for if opportunity is given all evidence easily may be destroyed during the time required to give notice, demand admittance and accept communication of denial of entry. As one commentator said:
‘ “* * * it would seem that the perfection of small firearms and the development of indoor plumbing through which evidence can quickly be destroyed, have made [statutes requiring notice and entry before the use of force to enter] * * * a dangerous anachronism. In many situations today * * *, a rule requiring officers to forfeit the valuable element of surprise seems senseless and dangerous.” ’
Kaplan, Search and Seizure, A No-Man’s Land in the Criminal Law, 49 Cal. L. Rev. 474, 502.”

In our opinion, Henson, supra, is dispositive of the Appellant’s first contention.

The Appellant next contends that the trial court abused its discretion in admitting a chemist’s report submitted through the prosecutor. No objection to the report was raised at trial and the matter is therefore not properly before us. Md. Rule 1085; Dolan v. State, 1 Md. App. 292.

The Appellant next contends that the failure of his trial counsel to object to the admission of the chemist’s report amounted to incompetency. This contention is raised for the first time on the appeal and, as such, is not properly before the Court. Md. Rule 1085, Howard v. State, 1 Md. App. 379. In any event, there is nothing to indicate that the report was erroneous and an objection, although technically correct, would have served no ultimate useful purpose; however, a review of the record indicates that the trial counsel capably and vigorously represented the Appellant’s interests. Accordingly, the contention is deemed to be without merit.

Finally, the Appellant contends that the trial court erred in not believing his testimony. It was for the trial judge to weigh the alibi testimony and he was not required to give it credence. Logan v. State, 1 Md. App. 213; Bury v. State, 2 Md. App. 647. Under all the circumstances here presented it is our opinion that there was legally sufficient evidence to sustain the conviction.

Judgment affirmed.


author: Per Curiam.

text:
    FRANKLIN ROOSEVELT DARBY v. STATE OF MARYLAND
    [No. 103,
    September Term, 1967.]

      Decided March 18,1968.

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

      Howard B. Gersh, with whom was Feldman & Gersh on the brief, for appellant.

      Anthony M. Carey, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Charles B. Moylan, Jr., State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The Appellant, Franklin Roosevelt Darby, was convicted of receiving stolen goods by Judge Albert L. Sklar, sitting without a jury in the Criminal Court of Baltimore, and sentenced to five years in the Maryland House of Correction.

The record indicates that on December 18, 1966, goods, including shoes, pocketbooks and an ivory colored radio valued collectively at approximately $700 were stolen from the Ideal Shoe Store located at 3112 West North Avenue in the City of Baltimore. Mrs. Fern Scotland, the operator of a nearby bowling establishment, testified that on the evening in question the Appellant entered the bowling establishment at approximately 8:45 P.M. On one arm he was carrying a number of women’s pocketbooks with tags hanging from them, and in the other arm he carried a bag in which were shoe boxes with the Polly Preston brand name on them. Mrs. Scotland knew that the Ideal Shoe Store sold Polly Preston brand shoes. At Mrs. Scotland’s request the Appellant left the bowling establishment only to return some ten minutes later carrying a cream-colored radio and a bag in which shoes could be seen. At Mrs. Scotland’s request, the Appellant again left her establishment. Mrs. Scotland later informed police officers who were investigating the reported theft that she had seen several colored males, including the Appellant, carrying large numbers of shoes. Shortly thereafter she identified the Appellant from a photograph at the Bureau of Identification.

Four alibi witnesses were produced by the Appellant. The Appellant’s girlfriend testified that she had seen the Appellant for about twenty or thirty minutes, beginning at 7:45 P.M. on the evening in question and that from 8:15 P.M. that evening to 3 :00 A.M. the following morning he was in her home. The remaining witnesses placed the Appellant in the girlfriend’s house from approximately 8:30 or 9:00 P.M. until sometime after 11:00 P.M. that evening.

In this appeal the Appellant contends that the evidence was legally insufficient to support the lower court’s finding of guilt.

Since the instant case was tried by the lower court without a jury, this Court may review the case upon both the law and the evidence. However, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 1086; Dortch and Garnett v. State, 1 Md. App. 173; Bury v. State, 2 Md. App. 674. Our function on appeal in a non-jury case is not to determine whether, on the evidence, we might have reached a different conclusion, but rather to determine from the evidence, and the proper inferences drawable therefrom, whether it was legally sufficient to warrant the finding of the trial judge that the defendant was guilty beyond a reasonable doubt. Spencer v. State, 1 Md. App. 264; Sadler v. State, 1 Md. App. 383; Pachmayr v. State, 1 Md. App. 270.

It is a familiar principle that the possession of recently stolen goods gives rise to a factual presumption that the possessor is guilty of receiving stolen goods when a showing is made that another person or persons is involved in the theft, and such possession, unexplained, is sufficient to sustain a conviction. Anglin v. State, 244 Md. 652, 657; Jordan v. State, 219 Md. 36, 49-49; Scott v. State, 1 Md. App. 481, 494.

The credibility of the witnesses was for the trial judge to determine. In this case, he clearly disbelieved the alibi witnesses and believed the testimony of Mrs. Scotland. This he had a perfect right to do. Bury v. State, 2 Md. App. 674; Logan v. State, 1 Md. App. 213.

Under all the circumstances, it is our opinion that there was sufficient evidence to support the judgment of the trial judge that the Appellant was guilty. We cannot say that the judgment was clearly erroneous.

Judgment affirmed.


text:
    WOODROW WILLIAMS, JR. v. STATE OF MARYLAND
    [No. 105,
    September Term, 1967.]

      Decided March 18, 1968.

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

      John R. Hargrove for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles F. Moylan, Jr., State’s Attorney for Baltimore City, and James B. Dudley, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Woodrow Williams, Jr., the appellant, was convicted of violating the narcotics laws and of being a subsequent offender, in the Criminal Court of Baltimore, Judge James K. Cullen presiding without a jury.

On October 20, 1966, Williams was arrested at the Trailways Bus Station in Baltimore by an officer of the narcotics unit of the Baltimore City Police Department on the basis of an outstanding warrant for burglary. The police officer searched the appellant and found heroin and narcotics paraphernalia. On January 6, 1967 Williams elected, pursuant to Maryland Rule 713, to be tried concurrently for the narcotics violation and for being a subsequent offender.

His only complaint on appeal is that the State should not have been allowed to introduce evidence pertaining to his prior narcotics conviction until he had been found guilty of the current offense.

This complaint was not raised below and is not properly before this Court under Maryland Rule 1085, Boone v. State, 2 Md. App. 80, 233 A. 2d 476. See also Maryland Rule 522 d (2), Gaudio v. State, 1 Md. App. 455, 230 A. 2d 700. Even if Williams had objected below, it would have been to no avail because he had elected to be tried concurrently under Maryland Rule 713; and therefore he had waived his right, even his constitutional right, to object, see Gaudio, supra. Williams relies heavily on Lane v. Warden, 320 F. 2d 179 (4th Cir. 1963) which has been clearly overruled by Spencer v. Texas, 385 U. S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967).

Judgment affirmed.

      . Lane v. Warden, supra held the section in the indictment pertaining to subsequent offenses could not be read to the jury at the commencement of the trial. The court further states that Maryland Rule 713, which was enacted after Lane’s trial, alleviates this problem. Maryland Rule 713 provides that the jury should not be aware of the recidivist charge until the accused is found guilty of the current charge—it makes no reference of a nonjury trial.

        . Spencer v. Texas, supra allows the recidivist section of the indictment to be read to jury if they are properly admonished.


text:
    JIMMIE McRAE v. STATE OF MARYLAND
    [No. 108,
    September Term, 1967.]

      Decided March 20, 1968.

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

      Jack G. Richards for appellant.

      William B. Brannan, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Raymond Baby, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

On March 15, 1967, the appellant, Jimmie McRae, was tried in the Criminal Court of Baltimore by Judge Charles D. Harris, sitting without a jury, and was convicted of grand larceny. He received a sentence of not more than four years.

Appellant raises four contentions on appeal:

1. That the arresting officer did not have sufficient probable cause to arrest the appellant.
2. That the evidence was illegally obtained.
3. That the pre-lineup preparation was conducted in such a way as to prejudicially suggest the identification of the appellant.
4. That the State’s failure to provide the appellant with the names of “informers” constituted reversible error.

On January 31, 1967, at about 2 a.m., a seaman named Sivert S. Nygaard was drinking coffee in the Plying Saucer Restaurant in Baltimore City, when he ordered and paid for a coke for a man seated next to him. Thereafter, he asked that man the whereabouts of the men’s room. Upon entering the restroom he noted he was accompanied by his new acquaintance. They remained in the restroom for two and one-half minutes “and as I was standing there, all of a sudden, all of a sudden I felt a hand in my right hip pocket. He took my wallet.” The wallet con-tamed approximately $895.00. Appellant ran from the restaurant and Mr. Nygaard could not catch him, so he called the police.

Officer Frank Wolski was assigned to the investigation and from Mr. Nygaard’s description went to the Police Department’s Bureau of Identification obtaining five photographs, including appellant’s. Officer Wolski testified he had known the appellant and had observed him in the neighborhood. The photographs were viewed by Mr. Nygaard and he identified the appellant.

On February 2, 1967, at about 2:15 a.m., appellant was arrested by Officer Wolski without a warrant and a search of his person revealed $4.00 in his pocket and $320.00 in his left sock.

Mr. Nygaard successfully picked the appellant from a lineup and subsequently identified him in court.

I

As we stated in Boone v. State, 2 Md. App. 479, 480, 235 A. 2d 567 (1967):

“It has long been the rule in this State that a police officer may arrest without a warrant where he has reasonable grounds to believe that a felony has been committed and that the person arrested has committed the felony. Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information to warrant a man of reasonable caution in the belief that an offense had been committed. Mulcahy v. State, 221 Md. 413, 158 A. 2d 80 (1960); Jones v. State, 242 Md. 95, 218 A. 2d 7 (1966).”

It is well settled that sufficient probable cause for an arrest exists where there is a report of a felony and a description of the perpetrator. Hopkins and Terry v. State, 239 Md. 517, 520, 211 A. 2d 831 (1965) citing Farrow v. State, 233 Md. 526, 531, 197 A. 2d 434 (1964).

In the instant case, Officer Wolski knew the felony had been committed, was possessed of the victim’s description of his assailant, was present when the victim picked appellant’s photograph from the group of five presented, and personally knew the appellant frequented the neighborhood where the crime occurred. Under the above facts and circumstances, we find that there was sufficient probable cause to believe that a felony had been committed and that the person arrested had committed that felony.

II

“[Wjhere circumstances make an arrest without a warrant lawful, it is permissible, as an incident to the arrest, to search the person of the suspect and to take into custody and examine the tangible evidence or instruments of the crime, whether upon his person or within his present or immediate possession.” Mulcahy v. State, 221 Md. 413, 422, 158 A. 2d 80 (1960); David v. State, 1 Md. App. 666, 669-670, 232 A. 2d 553 (1967). Here, the evidence seized was secured incidental to a lawful arrest and therefore was properly admitted into evidence.

III

Appellant’s third contention that the pre-lineup preparation was conducted in such a way as to prejudicially suggest the identification of the appellant is without merit. While it is true that the victim identified the appellant from a group of photographs prior to the lineup at which he later identified the appellant, there is no indication from the testimony that the appellant’s identification was prejudicially inspired, as the victim had ample opportunity to observe the features of the appellant during the time that he was seated next to him in the restaurant.

Furthermore, it was settled by Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, that the legal principles enunciated in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, all decided on June 12, 1967, apply only to lineups conducted after June 12, 1967. Tender v. State, 2 Md. App. 692, 696, 237 A. 2d 65 (1968).

Furthermore, the victim’s testimony indicates that the police officer informed him of the appellant’s name only after the appellant’s photograph had been clearly and positively picked out by the victim from the group of five photographs submitted to him. The testimony of Officer Wolski fully supports this inference. The victim also identified the appellant in court. It is well established that the positive identification of a single eyewitness, if believed by the trier of facts, is ample evidence to sustain the conviction. Montague v. State, 3 Md. App. 66, 71, 237 A. 2d 816 (1968); Hutchinson v. State, 1 Md. App. 362, 367, 230 A. 2d 352 (1967); Crumb v. State, 1 Md. App. 98, 103, 227 A. 2d 369 (1967).

Assuming arguendo, some conflict in the testimony of the victim and officer regarding this point, it is clear that in non-jury trials, the weight of the evidence and the credibility of the witnesses is for the determination of the trial judge. Lucas v. State, 2 Md. App. 590, 593, 235 A. 2d 780 (1968); Dunlap v. State, 1 Md. App. 444, 230 A. 2d 690 (1967).

Appellant’s final contention is also without merit. The thrust of this contention is that informers supplied the prerequisite probable cause upon which the appellant’s arrest was based and therefore their identification was essential to a fair determination of this cause. The issue of probable cause was foreclosed by the officer’s testimony that he had relied solely upon the description and information supplied by the victim in conjunction with the victim picking the appellant’s photograph from the group of five presented. The additional information sought from the witnesses at the situs of the crime was in no way linked to the establishment of probable cause for appellant’s arrest. As noted above, the victim’s report and his description of the perpetrator supplied ample probable cause. Hopkins and Terry v. State, supra; Farrow v. State, supra.

Judgment affirmed.