text:
    ROBERT WOODROW WILSON v. STATE OF MARYLAND
    [No. 269,
    September Term, 1967.]

      Decided May 21, 1968.

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

      Martin H. Freeman for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Benjamin R. Wo-lman, Assistant State’s Attorney for Prince George’s-County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found not guilty of murder but guilty of manslaughter under an indictment charging him with murder by a jury in the Circuit Court for Prince George’s County. He was sentenced to imprisonment for a term of four years.

The questions presented on appeal from the judgment are herein considered in the order in which they were argued before this Court.

I

“Was the defendant denied a fair and impartial trial when, the trial judge in his admonition to the jury affirmatively advised that throughout the trial they could talk about the case as long as they were alone among themselves or in the jury roomf”

Trial commenced on 21 July 1967, resumed on 24 July and 25 July and concluded on 26 July. The jury separated during each trial day for lunch and at the end of each day of trial. The trial judge admonished the jury immediately before each separation, seven times in all. After the first admonition, given before the luncheon recess of court on the first day of trial, the-record shows the following colloquy between the court and counsel for the appellant, out of the presence of the jury:

“MR. FREEMAN: * * * I detected in the instruction to the jury about discussing the case that they should not discuss it among themselevs anywhere except in the jury room. I would request, if the Court please, an instruction that until the case is terminated that they should not even discuss it there.
THE COURT: Well, they have a right to discuss it. They don’t have a right to take it up on the basis of determining the case itself, but they certainly have got a right — You have got to be practical about it. They are going to discuss it during a recess. But the thing that you are aiming at and we always instruct them not to take the case up, not to take a vote and not to. make any final determination. This is true of any case. But to tell them that they can’t talk about it in there is not realistic. They are going to. You are not going to stop it. But the only purpose in telling them that, the intention of telling them that, is not to make any conclusion on the case, not to take any vote and not make up their minds. But you can’t deny them the right of discussing the case.
MR. FREEMAN: Well, I have made my request and I suppose it has been denied.
THE COURT: Well, we are telling you what we do ■and what the usual meaning of it is, which I don’t think you are familiar with, and that is why we are doing it, to enlighten you.
MR. FREEMAN: Thank you.”

We think it a fair construction of the admonitions given by the trial judge that the admonitions conveyed to the jurors that they could discuss the case among themselves before its final submission to them when they were together in the jury room as the •appellant’s counsel alleged. The appellant does not claim that the cautions given by the trial judge with regard to the conduct •of the jurors while separated were insufficient or improper. But he urges that before the case is finally submitted to the jury, "they may not properly discuss it among themselves whether or 'not they are separated and therefore, the trial judge committed prejudicial error. There is no statute or rule in this jurisdiction requiring the trial judge to admonish the jury that they are 'not to discuss the case in the jury room before its final submis-sion to them. Nor are we aware of a case which compels us to so hold. “It is, however, our established practice that an admonition be given by the trial court to members of the jury, prior to separation, against discussing the case with others or among themselves.” (emphasis added). Midgett v. State, 223 Md. 282, 293. The Court said in Midgett, at page 295, that the main objectives sought by the usual admonitions were “to avoid any outside influences and to cause the jury’s final verdict to be based solely on the evidence and on the whole of the evidence presented in the court.” But we do not construe Midgett to hold that the jurors may not discuss the case before its final submission to them when they are not separated. There the contention was that the conviction should be reversed because upon several adjournments during the course of the trial when the jury was allowed to separate, the court did not caution the jurors against discussing the case. The opinion must be considered within the frame of reference of the contention and we do not feel that it is applicable to a jury not separated. The usual caution against the jurors discussing the case among themselves applies when the jury is separated and we are not persuaded otherwise because the Court, in Midgett, in finding that there had been substantial compliance with the rule as to admonitions, noted that the trial court had cautioned the jury not to discuss the case “with anyone during recess, nor amongst yourselves” and had elaborated on the latter point, stating that it was “because you are supposed to discuss this case only when it is completed and it is turned over to you when you retire to the jury room for a verdict.” at page 294. The appellant relies on Winebrenner v. United States, 147 F. 2d 322 (8th cir.) in which the jury was admonished not to discuss the case “to such an extent that you form definite fixed ideas that would prevent you from changing after you heard all the evidence in the case.” page 327. The court felt that this caution warranted the jury to discuss the case among themselves before final submission of it to them. It believed that this was harmful because the jury had not heard all the evidence, they had not received the court’s instructions “as to how the evidence was to be considered by them,” they had not heard argument of counsel and they were enabled “to divide themselves into separate groups and distinct deliberative bodies.” It found that the right to a fair trial and due process of law were violated and reversed the judgment, remanding the case for a new trial. We do not agree that it necessarily follows that an accused is denied a fair trial and due process of law because of the absence of an admonition not to discuss the case before its final submision to them or because they are told, in effect, that they may so discuss it. Of course, it is the constitutional right of a defendant in a criminal case to be tried by an impartial jury. Amendment VI to the Constitution of the United States, Article 21 of the Declaration of Rights of Maryland, Jones v. State, 2 Md. App. 429. “In our present state of society, all that can be required of a juror, to render him competent, is that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports.” Garlitz v. State, 71 Md. 293, 300 quoted in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 328. A defendant is entitled to be tried by a jury composed of competent jurors, “exercising their judgment with perfect freedom from improper influences.” Marguiles v. State, 153 Md. 204, 211. We think that the jurors properly may be regarded, in the absence of a showing to the contrary, as performing their duties as they have sworn to perform them. The trial court made it clear in its admonitions that while the jurors were separated they were not to discuss the case “* * * among yourselves or with anyone else * * * or to read any newspapers or listen to any broadcasts or look at any television or anything concerning this particular case * * * The point is we just don’t want any outside interference * * * [Y]ou are to divorce yourself from any of this because there is always a possibility that it may contain something which is not in the evidence, or it may contain somebody else’s thoughts or reactions to what was presented. And you are entitled to all of the evidence, but no one of you is entitled to have anything that the others don’t have the benefit of * * In the instant case there is no hint or suggestion that the verdict of the jury was not based solely on the evidence and the whole of the evidence or that the jurors committed their minds until all the evidence was presented to them and we see no reason for us to assume to the contrary. There was no showing that the appellant was prejudiced and we feel that the refusal of the trial judge to admonish the jury not to discuss the case among themselves in the jury room or even the possibility that they did discuss it does not present a matter of constitutional dimension. We find no denial of the appellant’s constitutional right to a fair trial and are not persuaded by Winebrenner that the right to due process of law is properly extended to embrace the matter. We deem a proper due process of law standard for a criminal trial to be one tried in accordance with the Bill of Rights and laws passed pursuant to constitutional power, guaranteeing to all alike a trial under the general law of the land. We think that the trial of the appellant complied with this standard.

It may be the better practice, in order to preclude any possibility of misconduct (insofar as admonition can do so) that every jury be admonished not to discuss the case among themselves, even when in the jury room, until it is finally submitted to them. But having found that it is not required, constitutionally or by statute, rule or decision, we cannot find prejudicial error in the trial judge’s admonitions under the facts and circumstances of the instant case.

II

“Did the trial court abuse its discretion in refusing to grant a request for a bill of particulars setting forth the facts which the State contended showed premeditation or malice on the part of the defendant or which showed the acts which the defendant allegedly committed?”

Prior to trial the appellant filed a motion for a bill of particulars which included a request for all facts which the State contended showed premeditation, malice and “the specific act or acts which the defendant is alleged to have performed which resulted in the death of the decedent,” In its answer to the motion the State asserted that the appellant had been furnished with particulars through oral disclosure and extended discussion between his counsel and the Assistant State’s Attorney and the answer contained a summary of the events related to the charge, additional to that given orally. Other than to the extent disclosed, the State excepted to the demand for facts showing premeditation, malice and the specific acts performed by the appellant. At a hearing on the motion the trial court refused to require the State to furnish more particulars. The appellant concedes that, as he was convicted of manslaughter, the denial of the request with regard to facts showing premeditation and malice is moot. He urges, however, that the denial with regard to facts of specific acts alleged to have been performed by him, specifically as shown by the testimony of Alvin Phillip Luckel, whom he designates as a key witness for the State, was error. He complains that the testimony of the witness at the trial as to the specific acts included “continual kicking (by the appellant of the deceased), despite pleas to stop, which quite differ from what he testified to at the preliminary hearing.” He asserts that he was therefore “surprised upon receipt of that evidence at the trial.” The testimony of Luckel at the trial, to which the appellant refers, was that Luckel said that he noticed the appellant kicking the deceased and when Luckel told him, “For God’s sake, quit kicking the guy,” the appellant did not reply. “He just kept kicking him.” There was no objection to this testimony. We do not have the transcript of the proceedings at the preliminary hearing before us but at the hearing on the motions filed by the appellant, his counsel quoted Luckel as saying at the preliminary hearing that “* * * it appeared to me that he (the appellant) was kicking him (the deceased).” In his argument at the hearing on the motions counsel characterized this testimony as Luckel saying he saw the appellant “* * * kicking away at the guard (the deceased).” Further, in the answer to the motion for particulars, the State set forth that Luckel was struck “one' time” by the deceased, “next remembering the Defendant striking and kicking the deceased.”

Maryland Rules of Procedure, 715 a provides that the court may order the filing of a bill of particulars. But a defendant is not entitled thereto as of right. The grant or refusal of particulars is within the sound discretion of the trial court and this Court will not reverse a denial of particulars unless there has been a gross abuse of discretion resulting in injury to the accused. Pearlman v. State, 232 Md. 251, 261. Bills of particulars are intended to guard against the taking of an accused by surprise by limiting the scope of the proof. Hadder v. State, 238 Md. 341, 351. We do not think that the appellant can validly claim surprise as to the point of which he complains on appeal and find no gross abuse of the discretion by the trial court resulting in injury to the accused. We note also that the defense is not prohibited from interviewing the State’s witnesses prior to trial.

Ill

“Did the court below err when it refused to permit the appellant to express his state of mind, his intent, at the time that he allegedly committed the acts comprising■ a specific intent crime?”

The appellant was charged with the murder of a security guard whose duties included a check of the premises of an apartment complex. The appellant and Luckel had been in one of the apartments and when they left they went to Luckel’s car which had been left on the apartment parking lot. The appellant got in the car. The deceased drove up and accosted Luckel. The appellant testified that he heard Luckel holler, “Bob, Bob come here quick.” The appellant heard “scuffling,” got out of the car and saw Luckel standing by the fender oí a car and the guard “had his hands poised as if he were going to strike.” Defense counsel asked the appellant, “Now, what was your intent when you approached the scene there.” Objection to the question was sustained. The appellant then testified that he approached the guard, that the guard kicked him and came toward him and the appellant “started swinging.” He was asked by defense counsel “* * * the reasons why you started swinging” and he replied, “I was afraid that this nut was going to kick my brains out. That’s just my feelings at that time.” Later during his testimony the appellant said that he went to the office of his counsel and made a statement “as to how he was involved in this crime.” At this time he did not know that a warrant had been issued for his arrest or that the police were looking for him. He then went with his counsel “to report in to the authorities.” The appellant was asked by his counsel whether he had any intention of “not reporting” in to the authorities. The State objected, the appellant answered “No” and then the court said, “Sustained.” There was no motion to strike the answer. Defense counsel then asked the appellant what his “intentions were with respect to reporting in to the authorities” and objection to the question was sustained. The appellant contends that these rulings of the court were reversible error.

An accused is competent to testify as to his intent or state of mind. Davis v. State, 204 Md. 44, 52; Webb v. State, 201 Md. 158, 162; Wharton’s Criminal Evidence, 12th Ed., Vol. 1, § 164, p. 318. No other person can testify positively with regard to a particular intent entertained by an accused but an accused could, if truthfully inclined, swear positively to that intent; if his testimony as to that fact is material and pertinent to the issue, his testimony ought not to be excluded. Fenwick v. State, 63 Md. 239, 241. In the instant case the appellant was charged with murder and raised the issue of self defense. His intent at the time of the assault would thus be material as to the existence of malice, Davis v. State, supra, p. 52, and as to justification for the homicide. But although his testimony as to his intent when he “approached the scene” was excluded, his testimony as to his intent at the time the assault was committed was admitted. Whatever his intent was when he approached the scene, his intent and state of mind when he assaulted the deceased were clearly before the jury — “I was afraid that this nut was going to kick my brains out. That’s just my feelings at that time.” We therefore find no prejudice to him in the exclusion of his testimony as to his intent when he approached the scene and hold that the trial court did not commit reversible error in sustaining the objection to the question soliciting it.

There is no merit in the appellant’s contention that he was not permitted to testify as to his intention to report the incident to the authorities. His answer that he had no intention of not reporting it was before the jury despite the ruling of the court, and, in any event, the matter of his intent in this regard was not material and relevant to the issue of his guilt or innocence of the crime charged. Further, he suffered no prejudice by the ruling of the court, for what he in fact did with respect to reporting “in to the authorities” was presented to the jury by him.

IV

“Where the trial judge instructed the jury as to- second degree murder, manslaughter, and justifiable homicide, was the appellant also entitled to an instruction covering a finding‘ of not guilty based upon the death being ccmsed by another, where there was evidence of the death being caused by anotherf”

After the charge to the jury defense counsel said, out of the presence of the jury:

“It occurred to me while the instructions were being given that the only advisory instructions on not guilty dealt with justifiable homicide. I believe that the defendant is entitled to an instruction simply that if the jury finds, or if the jury is not convinced beyond a reasonable doubt that the defendant was the one that ■caused the death, then they should find him not guilty because there is evidence in the case that someone else may have done it.”

At the close of all the evidence the lower court granted a motion for judgment of acquittal as to murder in the first degree. In its instructions the court made clear to the jury that the possible verdicts were guilty of murder in the second degree; not guilty of murder, guilty of manslaughter; not guilty. It thoroughly explained the presumption of innocence; the burden of the State to prove the appellant guilty beyond a reasonable doubt and to a moral certainty; that the appellant was entitled to every inference in his favor which could be drawn from the evidence;. that where two inferences could be drawn from the same set of facts, one consistent with guilt and one consistent with innocence, the appellant was entitled to the inference consistent with innocence; that the fact of indictment was not evidence of guilt. It reviewed the law as to second degree murder, manslaughter, justifiable and excusable homicide. In explaining manslaughter the court said, “If you are convinced from the evidence that the death resulted from merely unlawful conduct on the part of the defendant and there was no intention to take a life, then in that case, the defendant would be guilty of manslaughter.” (emphasis added). We think the instructions made it abundantly clear to the jury that their verdict must be not guilty if they did not find beyond a reasonable doubt that the appellant was, the one that caused the death of the deceased and we find no, error in the refusal of the court to grant the specific instruction requested.

V

"Was there a failure of due process of law when the lower court was precluded from considering the testimony before the grand jury by a failure to have that testimony recorded?”

VI

“Should the indictment which was returned have been one of imanslaughter only?”

These questions are presented by the appellant in contending that the lower court erred in denying a motion to dismiss the indictment. He contends that by the testimony presented at the preliminary hearing, the evidence before the grand jury could not have been sufficient to warrant the return of an indictment for murder but only for manslaughter. He urges that the public local law of Prince George’s County requires that when a clerk to the grand jury is appointed it is mandatory that he record the testimony before that body. He complains that the testimony leading to his indictment was not recorded and thus the lower court was precluded from examining it to ascertain if the testimony was sufficient to warrant the indictment. He asserts that he was therefore denied due process of law.

It is the well settled rule that the competency of testimony before the grand jury will not be inquired into by the courts and is no ground to dismiss an indictment. Pick v. State, 143 Md. 192, 196. Compare Leon v. State, 180 Md. 279. In Bernard v. Warden, 187 Md. 273 the Court held that the question of the legal sufficiency of the evidence before the grand jury could not be raised in a habeas corptts proceeding and did not determine whether it could be inquired into on a direct appeal, “by motion to quash or otherwise.” But it said, page 280, “It is generally held, however, that if there is some evidence to support the indictment, the courts will not inquire into its sufficiency.” See Piracci v. State, 207 Md. 499, 515; Strait v. Beall, 198 Md. 677, 679. In Costello v. United States, 350 U. S. 359, the Supreme Court said, at page 363:

“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”

See also United States v. Blue, 384 U. S. 251; Lawn v. United States, 355 U. S. 339. We adopt the rationale of Costello and hold that an indictment may not be challenged on the ground that there was insufficient evidence before the grand jury. We find that the lower court did not err in the denial of the motion to dismiss the indictment.

In view of our holding we need not consider the other allegations raised by the appellant with respect to these questions.

VII

“Did the appellee’s affirmative representation to the jury that its key witness waived all immunity, when it knew that his testimony was providing him that immunity, prejudice the appellant’s case and thereby violate due process of law?”

In his brief the appellant refers to the testimony of Luckel offered by the State. Luckel said he was not served with a warrant and was not placed under arrest. He was then asked if he made any deals with anybody and counsel’s objection to that question was overruled. His answer was no. He was then asked, “Did anybody offer you any deals before you talked to them (the police) or while you were talking to them?” No objection was made and the witness answered, “No, sir.” Later in his testimony he was asked, “Subsequent to this time that you talked at Oxon Hill Station and up to this date, this time and this place, has anybody offered you any deals?” The witness answered, “No, sir,” without objection made. As part of his case the appellant introduced into evidence by stipulation a letter from Luckel’s attorney which stated that Luckel “was not and is not now charged with any crime.” We think that the substance of the challenged testimony came in without objection and that the point is not properly before us. Md. Rules, 1085. In any event, in view of the evidence offered by the appellant he was in no way prejudiced by the testimony of which he now complains.

Judgment affirmed.

      . The trial court may, in its discretion, permit jurors sworn "to try a criminal action to separate at any time before the submission of the case to the jury. Md. Code (1968 Repl. Vol.), Art. -51, § 29; Graef v. State, 1 Md. App. 161. The appellant does not challenge the exercise of the discretion of the trial court in permitting the jury to separate. For a discussion of the separation of the jury before the submission of the case see Midgett v. State, 223 Md. 282. For a discussion of the separation of the jury after submission see Kennard v. State, 177 Md. 549.

      . Code, Art. 51, § 29 does not require an admonition even upon separation of the jury. In a number of other states, upon adjournment, admonitions by the court to the jury are required by statute. The content of the admonition as provided by the various statutes is substantially the same — it is the duty of the jury not to converse -among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon until the -cause is finally submitted to them. But the statutes are not uniform as to whether the admonitions must be given on any adjournment or only when the jury is separated. In California (Cal. Penal Code, § 1132), Oklahoma (Okla. St. [1961], § 854), and Nevada (Nev. Rev. St. [1963], § 175.325), for example, the jury must be admonished “whether permitted to separate or kept in charge of officers.” In Kansas (Kan. St. Ann. [1964], § 62-1446: See State v. Bussey, 58 K. 679, 688, 50 P. 891), Missouri (Mo. Rev. St. [1959], § 546.230), Ohio (Page’s Ohio Gen. Code [1937], § 13443-17) [the caution here as to conversation is not to converse with “any person” without designating “among yourselves”], Kentucky (Ky. Rev. St. [1962], § 29.302) [the caution here as to conversation is not to converse with “any other person” without designating “among yourselves”] and Nebraska (Rev. St. of Neb. [1943, reissued 1964] § 29-2022) the admonition must be given only on separation of the jury.
      We are not aware of a statute requiring that the jury be admonished on adjournment in federal trials. However, Mathes and Devitt, Pederal Jury Practice and Instructions (1965) ch. 3, § 3.02, p. 23, states:
      “The jury should be admonished not to converse or communicate among themselves or with others upon any subject touching the merits of the case and not to form or express any opinion on the case until it has been finally submitted to them.”

        United States v. Viale, 312 F. 2d 595, 602 (2d Cir.), cert. den. 373 U. S. 903 is cited as authority for the statement. But in Viale the court said, p. 602:
      “It has never been the law of this circuit that the trial judge must admonish the jurors not to discuss the case among themselves, although it has been the practice of most of the judges to suggest that it is advisable to refrain from such discussion until the case is concluded.”

      . The purpose of voir dire examination is to ascertain the existence of cause for disqualification. Borman v. State, 1 Md. App. 276, 279.

        . A usual form of the oath administered to the jurors by a clerk of the court is substantially as follows:
      “Members of the Jury, you and each of you do solemnly promise and declare that you will well and truly try the issues joined between the State of Maryland, and --- — •, defendant, and a true verdict give according to the evidence.”

        . Contained in the admonition before luncheon recess on 31 July.

      . Contained in the admonition at the end of the trial day on 31 July. The jury was cautioned not to discuss the case among themselves or with anyone else while separated at each subsequent adjournment of court. The advisory instructions of the trial judge to the jury at the conclusion of all the evidence included that the jury was to determine for themselves the weight of the evidence and the credit to be given the testimony of the various witnesses, that the appellant must be proved guilty beyond a reasonable doubt on evidence which “must be presented in court” and that in considering the verdict the jury “must look for an answer only to the evidence received in this trial.”

      . This does not appear to be the general practice in Maryland, although, as noted, it is the established practice to admonish the jury upon separation not to discuss the case among themselves. We understand that a Handbook for Jurors is given to jurors serving in the Courts of Baltimore City. It includes the following: “Jurors must not discuss the case with others or read about it in the newspapers or listen to broadcasts about it until after the trial is ended and the verdict returned. Their decision must be controlled by the evidence in the case and by nothing else. If an outsider tries to talk with a juror about a case on which he is sitting and while it is pending, the juror should refuse to listen. He should tell that person it is improper for him to discuss the case or receive any information except in the courtroom * * * Jurors should be careful while the case is on trial not to communicate on any subject with any lawyer or witness in the case.” This is in accordance with the main objectives of the usual admonitions given prior to separation.

      . The appellant also filed a motion for discovery and inspection which was answered by the State. Although the sufficiency of the compliance with the motion was argued at a hearing thereon, this question is not presented on appeal.

      . The State argues that there was no sufficient evidence that the death was caused by someone else so as to warrant the requested instruction. On direct examination Luckel testified that he was struck and knocked down by the deceased. He said that there was a possibility that he could have “scuffled” with the deceased after being punched by him but that he did not know it as a fact. On cross-examination he denied that he had “scraped and swollen knuckles on his right hand” when he appeared at the preliminary hearing and there was no evidence that he had such an injury. He denied jumping on the deceased or hitting him after he got up from being knocked down by the deceased and he did not know if he “hit him at all.” On re-direct he denied that he did “at anytime join in kicking or beating the deceased.” The appellant testified that after his •encounter with the guard he went to the guard’s car to tear out the radio so the guard could not call for help and heard “scuffling” and saw 5 or 6 inches of Luckel’s back. “It was moving in a rotating motion. I don’t know how to describe it, but it was moving like he "was maybe throwing punches or something.” He could not see Luckel’s hands or the guard’s body but he heard somebody moan. The physician who performed the autopsy testified that the body •of the deceased had multiple abrasions on both knees and on the face and chin. The upper and lower eye lids were blue and swollen. 'There were multiple skin abrasions on the right hand over the "knuckles. Internal examination of the head showed bruising or hemorrhage of each temporal muscle. Five ribs on the left side were fractured with “subplural hemorrhage” present. The actual cause of ■death was that the deceased vomitted while unconscious and died of aspiration.

      . We distinguish the rulings in the line of cases represented by Dennis v. United States, 384 U. S. 855 and Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395. By those cases the “particularized need,” which if demonstrated by the defendant may make testimony before the grand jury subject to his review, relates to the fairness of the trial and not to the validity of the indictment.

      . We note that absent a statute compelling a witness to testify and granting immunity if so compelled, if he wants the privilege against self-incrimination he must claim it. Neither the State nor the federal constitutional provision precludes a witness from testifying, voluntarily, to matters which may incriminate him. State v. Panagoulis, 3 Md. App. 330, 338, note 7. Thus Luckel did not obtain immunity by testifying at the trial without claiming the privilege. He stated that he did not testify before the grand jury.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JAMES NORMAN ROBERTS v. STATE OF MARYLAND
    [No. 283,
    September Term, 1967.]

      Decided May 21, 1968.

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

      John-Clarence North for appellant.

      H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Bwrch, Attorney General, and John Cannon North, II, State’s Attorney for Talbot County, on the brief, for appellee.
   Per Curiam.

On May 1, 1967 a two-count indictment was returned charging appellant James Norman Roberts with assault with intent to murder and assault and battery. On May 9, 1967 before a jury with Judge Harry E. Clark presiding in the Circuit Court for Talbot County, appellant was found guilty of assault and battery and sentenced to confinement in the Maryland House of Correction for a period of five years.

From this judgment the appellant raises the following contentions on appeal:

I. That the trial court erred in permitting an admittedly hard-of-hearing person to serve as a juror.
2. That the jury was prejudiced by the argumentative nature of the State’s Attorney’s opening statement.
3. That the trial court erred in ruling on the admissibility of evidence.
4. That the trial court erred in its instructions to the jury with respect to the definition of an assault and that the tenor of the instructions was provocative to the jury to the prejudice of the appellant.

There was evidence adduced at the trial showing that appellant shot his fifteen year old nephew Gary Roberts in the back of the head with a .22 caliber rifle while at his grandmother’s home in St. Michaels, Maryland.

Gary Roberts testified that on January 7, 1967 at approximately 7:00 p.m., he went to his grandmother’s residence where he met his uncles Henry Roberts, age 35, and appellant, age 27. It was the victim’s usual practice to use the telephone when at his grandmother’s house. He testified that the appellant said, “You’re not using the telephone,” and that he responded, “I’m going to use the telephone.” Appellant, who was 5'4" and weighed 128 pounds, then assumed a fighting position and invited his nephew, who was 6', 171 pounds, to fight, but he declined. After further argument, the nephew grabbed appellant’s arms and pushed him on the sofa, holding him down and repeating his intention not to fight. Thereafter, appellant went upstairs and returned with his rifle, loaded. The nephew Roberts, anticipating trouble, walked into the kitchen as appellant fired the rifle from the living room into the kitchen. Roberts then left the house intending to return home when he was again confronted by appellant at gun point and ushered back into the house. When they reached the middle of the living room appellant shot Roberts in the back of the head.

Henry Roberts, testifying as a defense witness, admitted being in the same room with his nephew and appellant, but denied hearing any conversation between them. He recalled they were “tussling, playing” on the couch when appellant heard some dogs in the back yard and went upstairs and returned with his rifle. The nephew left the house by the back door, while appellant left by the front door, though the dogs were allegedly in the back of the house. He heard one shot from the rear of the house, then his nephew entered the house, followed in two or three minutes by the appellant. The witness further testified that appellant started going upstairs, and he heard sounds as if appellant was unloading his rifle when a shot was fired and the nephew fell to the floor. The witness admitted drinking one-half of a pint of whiskey and a few cans of beer earlier that day.

Appellant provided still a third version of the incident. He stated he had been drinking that day, about two quarts “of everything,” but that he was not intoxicated when his nephew arrived. Appellant claimed that the pushing and scuffling was a usual occurrence, and denied having an argument with his nephew that night. He testified that he brought down his rifle with the intention of selling it to Dwight Henry of McDaniel, Maryland. Appellant did not recall hearing any dogs, and he denied firing his rifle inside the house. He further testified that he went out the back door while his nephew was inside to shoot some bullets in the air for recreational purposes. He passed his nephew outside but had no conversation with him and then entered by the front door, his nephew following behind about ten seconds later. Thereafter, as he pulled on the bolt action of the rifle, it fired and shot his nephew in the back of the head.

I

Under the circumstances of this case, we hold that the trial judge did not err in permitting a slightly deaf juror to serve on the jury. Before opening remarks by counsel, the judge asked the jurors if any had difficulty with their hearing. When two responded affirmatively, it was suggested by the prosecutor that they should notify the court if they could not hear the questions posed or the witnesses’ responses. This was followed by the judge’s question to the two jurors: “Well now, will both of you gentlemen notify me if you have any trouble at all hearing any of the testimony so I can have it repeated for you so you do hear and understand.” Both jurors indicated in the affirmative. Each counsel was asked whether it was agreeable to keep these particular gentlemen on the jury, and both the prosecutor and defense counsel agreed.

It is generally held that a party who knows or by the exercise of proper diligence on the voir dire examination should have known that a juror was deaf waives the right to object thereto by waiting until after the verdict to raise his objection. See 31 Am. Jur. Jury § 167. See also Lindsey v. State, 225 S. W. 2d 533 (Tenn.), wherein it was held that a defendant convicted of murder had waived any objection as to a juror’s partial deafness by failure to raise such objection before the verdict, since he knew of the partial deafness prior to the verdict, and Annotation, 15 A.L.R. 2d 534.

II

Appellant contends that the State’s opening statement was so prejudicially argumentative as to constitute reversible error. We find no merit in this contention. Defense counsel objected to the conclusion of the State’s opening remarks as being part of his argument rather than a statement of what he intended to prove. The judge admonished the State’s Attorney, “confine yourself in the future to what you intend to prove.” From our review of the record, we find no prejudice to appellant’s case resulting from the somewhat argumentative nature of the State’s opening argument.

III

Appellant contends that testimony elicited by the State from the prosecuting witness that he was in the hospital for two weeks subsequent to the shooting for treatment, and that his right arm and leg were paralyzed as a result, causing him to miss two and one-half months of school, was irrelevant and immaterial. We disagree.

It is well established that in prosecutions for assault in various degrees or forms or similar offenses involving physical violence, evidence as to the extent or effect of the injuries received by the assaulted party is admissible as being relevant or material to an issue of the case, or as relating to “a part of res gestae,” and defendant’s contention in these cases that the admission of such evidence was prejudicial in that it tended to arouse the jury against him has generally been denied by the courts. The cases are collected in an extensive Annotation at 87 A.L.R. 2d 926, particularly at pages 928-935. See also 6 C.J.S. Assault and Battery § 123.

IV

Finally, we hold that there is no merit to appellant’s two-pronged contention (a) that the court erred in its instructions to the jury respecting the definition of an assault and (b) that the tenor of the court’s instructions was provocative to the jury to appellant’s prejudice. The court, in giving its instructions to the jury, defined the crime of assault and, by way of example, stated:

“Obviously, when someone takes a .22 calibre rifle and unlawfully discharges a bullet therefrom into a vital part of another person’s body, this is one of the most serious forms of assault and battery.”

The court also stated in its instructions:

“If you find that the shooting which took place was accidentally or negligently committed, then you must find that there was no intent to commit murder or to commit assault and battery and must find the defendant not guilty on both counts.”

While appellant lays particular stress on the court’s use of the word “unlawfully” in its instructions defining assault, and urges that the instruction was tantamount to dictating a directed verdict of guilt, we believe that the instructions, considered in their entirety, were not prejudicially improper. In so concluding, we have considered, but rejected, appellant’s argument that the trial judge’s instructions to the jury were erroneous in that they failed to include any reference to the fact that it is also “unlawful” to discharge a firearm within the town limits of St. Michaels.

Judgment affirmed.


text:
    LEVI ALEXANDER v. STATE OF MARYLAND
    [No. 286,
    September Term, 1967.]

      Decided May 21, 1968.

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

      Irvin B. Shaffer for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and I. BlUott Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Levi Alexander, the appellant, was convicted of rape in the Criminal Court of Baltimore, Judge Albert L. Sklar presiding without a jury. Alexander now complains that the trial court erred in not allowing certain testimony as to the reputation of the prosecutrix; in not allowing testimony as to the accused’s character; and that the evidence was not sufficient to support the verdict.

Etta Coleman, the prosecuting witness, testified that on May 2, 1966 she left her home at about 12:30 or 12:45 in the morning to go to the Avenue Cut-Rate Store for a pack of cigarettes and a can of beer. On the way from the store, which is a few blocks from her home, she passed in front of the 1601 Bar where she saw Alexander. He propositioned the prosecutrix, but she ignored him. He was joined by two other men who then confronted her and took her past her home and up an alley where the three men, one with a knife, threatened her. All three men had sexual intercourse with her. On cross examination she denied drinking with the men or that she had agreed to have sexual relations for a sum of money.

Alexander testified, along with one of the other assailants who was a co-defendant at the trial, that the prosecutrix came into the 1601 Bar and sat down with the three of them and had several drinks, and she later offered to have relations with the three men for $5.00 each. However, the assailants attempted to have relations with her but were physicaly unable to do so. Alexander further testified that when he refused to pay her she swore vengeance.

Alexander first complains that the trial court erred in not allowing him to testify as to the reputation of the prosecutrix. The following colloquy occurred:

“Q Your witness. Can I ask one more question? How long had you known Mrs. Coleman before this occurrence ?
“A Five or six years. I live around there six years.
“Q Did you ever hear other people discuss her reputation in the neighborhood ?
“A Yes.
MR. GOLDBERG: We object.
“A A whole lot of people.
MR. FEIKIN:
“Q What was her reputation as to moral conduct ?
MR. GOLDBERG: Objection.
THE COURT: Sustained.
MR. FEIKIN:
“Q What was her reputation as being a good or bad woman ?
MR. GOLDBERG: Objection.
THE COURT: Sustained.
MR. FEIKIN:
“Q Did you hear anybody discuss her conduct ?
“A Yes.
MR. GOLDBERG: Yes. Just answer the question yes or no.
“A Yes.
THE COURT: Next question.
“Q MR. FEIKIN: Did they tell you what her reputation was ?
MR. GOLDBERG: Objection.
THE COURT: Sustained.”

In a rape case, if consent is an issue, the prosecutrix’s general character as to chastity or for truth and veracity is admissible, Humphreys v. State, 227 Md. 115, 175 A. 2d 777, Giles v. State, 229 Md. 370, 183 A. 2d 359. Before a witness can testify to reputation it must first be established that he knows the reputation in the community in which the prosecutrix lives for “truth and veracity” or for “chastity” as the case may be. There was no such showing here. It is not permissible on direct examination to ask what others have stated the reputation to be. The witness must give his own opinion as to the reputation, although it is proper to show his means of knowledge. The Maryland authorities are collected in Poff v. State, 3 Md. App. 289, 239 A. 2d 121. The Supreme Court of the United States said in Michelson v. United States, 335 U. S. 469, 480, 69 S. Ct. 213, 221, 93 L. Ed. 168:

“Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject.”

Alexander next complains that a character witness called on his behalf was not allowed to testify. Richard George Hunter, a former employer, was called to testify on behalf of Alexander. His testimony related to Alexander’s reputation as an employee, and was offered at the guilt or innocence stage of the trial rather than on the question of sentence. Testimony as to “reputation must be limited to the neighborhood where the accused resides, not where he is employed.” Allison v. State, 203 Md. 1, 98 A. 2d 273, 276. The testimony was properly rejected.

Alexander lastly contends that evidence was not sufficient to support the verdict. In conjunction with this he contends that the prosecutrix’s testimony was so unreliable as to be unacceptable because of omissions in her original report to the police. Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683, held that a witness’ testimony which was, itself, so contradictory that it had no probative force could not be the basis of a verdict. This has no application where the testimony is inconsistent with an out of court statement. The mere fact that the original report to the police did not include all of the details of the crime does not make the testimony false. See Johnson v. State, 3 Md. App. 219, 238 A. 2d 295, Bell v. State, 2 Md. App. 471, 235 A. 2d 307.

We said in Lucas v. State, 2 Md. App. 590, 235 A. 2d 780, 782:

“In reviewing the sufficiency of the evidence, this Court determines whether the court below has sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant’s guilt.”

We hold the evidence, here, sufficient. The testimony of a prosecutrix, as a matter of law, need not be corroborated, Lucas v. State, supra. The court was under no obligation to believe Alexander’s story, Lawrence v. State, 2 Md. App. 736, 237 A. 2d 81. We find that the trial judge’s findings were not clearly erroneous, Maryland Rule 1086.

Judginent afftr'med.

      . The third assailant was adjudged to be insane and is now at Rosewood State Hospital.


author: Orth, J.,

text:
    STEVEN RICHARD LIEVERS v. STATE OF MARYLAND
    [No. 252,
    September Term, 1967.]

      Decided May 24, 1968.

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

      Douglas N. Shearetts for appellant.

      H. Edgar Lents, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sanmel A. Green, Jr., State’s Attorney for Baltimore County, and William Blondell, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was charged under an indictment containing three counts: 1st count — forging a certain check in the amount of $400 ; 2nd count — uttering that check; 3rd count — obtaining $400 by a false pretense. He was found guilty of the offenses charged in counts one and two at a court trial in the Circuit Court for Baltimore County and sentenced to imprisonment for a term of 5 years on each offense, the sentences to run concurrently. Upon the finding of the guilty verdicts the State entered a nolle prosequi to the third count. See Maryland Rules, 711.

The only contention raised on appeal from the judgments is that the offenses of forgery and uttering merged into the offense of false pretense and therefore the convictions were improper, constituting reversible error.

This Court has stated that the common-law doctrine of merger is now not followed in Maryland but that a modern concept of merger of offenses has been adopted. Chittum v. State, 1 Md. App. 205. The true test under the modern doctrine is whether one crime necessarily involves the other. Tender v. State, 2 Md. App. 692. That is to say, when the facts necessary to prove a lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense. Dunlap v. State, 1 Md. App. 444. The rationale of the modern doctrine was set forth in Tender v. State, supra, at page 700:

“We recognize that a person should not be twice punished for the same acts whether the offenses charged by reason of such acts be deemed to be inconsistent, duplicitous or to have merged.”

Thus, with regard to merger, in a trial on multiple charges, the doctrine is applicable only to preclude multiple convictions on merged offenses. Gee v. State, 2 Md. App. 61, 71-72. In the instant case the appellant was not convicted of the offense of false pretense into which he alleges the forgery and uttering offenses merged. A nolle prosequi entered without the consent of the defendant after trial has begun operates as an acquittal. Boone v. State, 3 Md. App. 11, 26-27. Therefore the doctrine of merger did not apply. As the doctrine was not applicable, the forgery and uttering offenses did not, in any event, merge into the offense of false pretense and the contention of the appellant fails.

Furthermore, no prejudice resulted to the appellant by the entry of the nolle prosequi under the circumstances here present. Had the trial court found the appellant not guilty of the offense charged in the third count the same result would obtain. Had a verdict of guilty been returned on that offense and, assuming arguendo, that the offenses of forgery and uttering merged therein, the sentences imposed were not in excess of the maximum permitted for the false pretense. Md. Code (1967 Repl. Vo!.), Art. 27, § 142. See Knotts v. State, 237 Md. 417.

Judgments affirmed:

Appellant to pay costs.

      . Under the provisions of § 143, in effect on 37 November 1964, the time of the commission of the offense here charged, the maximum sentence was 10 years when the value of the goods obtained' by the false pretense was $100 or more. The value of the goods so obtained to permit a maximum sentence of 10 years was increased to $500 or more by Chapter 348 of the Acts of 1967 but that Act is not applicable to offenses committed prior to 1 June 1967.


text:
    WALTER NATHANIEL GIBSON v. STATE OF MARYLAND
    [No. 248,
    September Term, 1967.]

      Decided May 29, 1968.

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

      Raymond Faby (Michael Lee Kaplan and Nathan Stern on brief) for appellant.

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

Walter Nathaniel Gibson, the appellant, was convicted of two cases of robbery with a dangerous and deadly weapon and one of carrying a concealed weapon, in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury. Gibson contends that the evidence was insufficient to support the verdicts.

The evidence adduced at the trial showed that on the night of November 13, 1966, two taxicabs were robbed by two men. The first cab robbed was operated by Thomas Winkey who identified Gibson as one of the two men he picked up that night near Pennsylvania Avenue and Mosher Street. Winkey testified that when he arrived at their destination, Gibson, who was sitting in the front, pulled out a revolver and demanded his money. Gibson and his companion took $25.00 in bills and coins plus some .22 caliber bullets from Winkey’s change purse. After the two men departed, Winkey reported the incident along with a description of the two men to his dispatcher.

A short time later a second taxicab operated by William Henry was robbed in much the same manner as was the first cab except that Gibson sat in the rear and his companion sat in the front. They took about $22.00, approximately $3.00 being in change. Henry reported the robbery to the first policeman he saw.

A few minutes later at approximately 9:30 P.M. Officer Fischer and his partner received a broadcast on the police radio describing the two hold up men, as two colored males wearing long black leather jackets, age 19-23. The broadcast also stated that two men were walking south on Howard Street from Centre. Fischer testified that “[w]e proceeded north on Howard Street and they were the only two fellows right on that street and they fit the description perfectly.”

The policemen then placed the two men under arrest. A search revealed that Gibson’s companion, Edward Williams, was carrying a 7.25 caliber Beretta automatic pistol. A more thorough search at the station house uncovered that Williams was carrying $4.40 in change and $47.00 in bills while Gibson had nine .22 caliber cartridges and $3.00 in bills.

Winkey identified Gibson in a line-up and identified him again in court. Henry identified Williams in a line-up and in court he identified both men. Mr. Winkey described the two robbers as light skinned negroes, 5 foot 10, 150 pounds wearing long black leather coats, one had a bumpy face or needed a shave, age 19-23. Mr. Henry’s description was similar except that he described them as dark complected, 145 pounds, age 21-24.

To bolster his complaint of insufficiency of the evidence, Gibson contends that the arrest was illegal and that there was a lack of identification. An illegal arrest in and of itself would not vitiate the trial, Boone v. State, 3 Md. App. 11, 30, 237 A. 2d 787, but we have no difficulty in holding that the arrest was legal.

The evidence seized incident to the arrest was admitted over objection made by appellant’s counsel, but only the issue of the legality of the arrest insofar as it affected the legality of the trial itself was raised on appeal. The State has the burden of establishing the existence of probable cause necessary to justify his arrest, Hutchinson v. State, 1 Md. App. 362, 369, 230 A. 2d 352. In order for a policeman to arrest a person for a felony without a warrant he “must have reasonable grounds or probable cause to believe at the time of the arrest that a felony had been committed and that the person arrested had committed the offense," Crumb v. State, 1 Md. App. 98, 227 A. 2d 369, Michaels v. State, 2 Md. App. 424, 428, 234 A. 2d 772. “Information placed on a lookout prepared by a police organization, of which the arresting officer is a part, may constitute probable cause for the arrest,” Carwell v. State, 2 Md. App. 45, 48, 232 A. 2d 903, Michaels v. State, supra, Crumb v. State, supra. In the case at bar, the policemen received a broadcast over the radio reporting the felonies, describing the hold up men, and giving the area where they might be found. We find that this was sufficient to give the officers probable cause to arrest Gibson and Williams.

In a non jury trial, the judge determines the weight of the evidence and the credibility of the witnesses, Sutton v. State, 2 Md. App. 639, 236 A. 2d 301 Sadler v. State, 1 Md. App. 383, 230 A. 2d 372. Identification by the victim is enough to convict, Davis v. State, 2 Md. App. 630, 236 A. 2d 307, but if there is a lack of postiveness in the identification, this only goes to the weight not the admissibility of the evidence, Logan v. State, 1 Md. App. 213, 216, 228 A. 2d 837, and “the weight that should be given the testimony was for the trial court” to decide, Dortch v. State, 1 Md. App. 173, 177, 229 A. 2d 148. The evidence as to the identification was sufficient to support the verdict, see Davis v. State, supra. In the two robbery cases there is no serious contention that there was not sufficient evidence to establish the corpus delicti.

In the concealed weapon case, Winkey testified that Gibson pulled out a gun from his coat; then demanded the money. Any question that relates to the witness’ credibility is for the trial judge to determine, Miller v. State, 1 Md. App. 653, 656, 232 A. 2d 548. His determination will not be overturned unless clearly erroneous, Maryland Rule 1086. “[Tjhere was legally sufficient evidence, or proper inferences therefrom, from which the trial court could find the accused guilty beyond a reasonable doubt,” Allen v. State, 2 Md. App. 740, 744-45, 237 A. 2d 90. Also see Crosby v. State, 2 Md. App. 578, 588, 236 A. 2d 33.

Judgments affirmed.

      . The fact that a more complete search was conducted at the police station would be immaterial. In Abel v. United States, 362 U. S. 217, 238-39, 80 S. Ct. 683, 697, 4 L. Ed. 2d 668, the Supreme Court of the United States stated:
      “Items (3), (4), and (5), a birth certificate for ‘Emil Goldfus’ who died in 1903, a certificate of vaccination for ‘Martin Collins,’ and a bank book for ‘Emil Goldfus’ were seized, not in petitioner’s hotel room, but in a more careful search at I.N.S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I.N.S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested.”


author: Murphy, C. J.,

text:
    PHILLIP MORRIS SHIFFLETT v. STATE OF MARYLAND
    [No. 334,
    September Term, 1967.]

      Decided May 29, 1968.

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

      Carville M. Downes, with whom was Arthur S. Alperstein •on the brief, for appellant.

      William E. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, ..Jr., State’s Attorney for Baltimore County, and John J. Lucas, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was indicted in Baltimore County for the crime of •(1) common law escape, and (2) escape in violation of Section 139 of Article 27 of the Maryland Code (1967 Repl. Vol.) which makes it a felony for any person “legally detained and confined in the penitentiary, or jail, or house of correction, or reformatory, or station house, or any other place of confinement, in this State, * * *” to escape therefrom. He was found guilty .generally by the court sitting without a jury and sentenced to two years under the jurisdiction of the Department of Correction.

The evidence adduced at the trial showed that appellant was lawfully confined under sentence in the Baltimore County jail on September 8, 1967; that on that day, he was “a trustee” of the jail and had, since September 5 been working at the office of the Chief Clerk of the Baltimore County magistrate’s court; and that he left this assignment on September 8, 1967, •did not thereafter return to the County jail, and was apprehended by the police four days later in Baltimore City.

While appellant makes no contention with respect to the sufficiency of the evidence to support his conviction for common law escape, he contends that the escape conviction based on the statute, Section 139 of Article 27 of the Code, was improper since he did not escape from the Baltimore County jail, but from the office of the Chief Clerk of the Baltimore County magistrate’s court, this not being a place of confinement within the meaning of the statute. We find no merit in this argument. The jail is expressly included as a place of confinement under the statute. As appellant was lawfully under sentence and committed to the jail, the fact that he was physically beyond its confines when he escaped does not immunize him from prosecution under the statute. See Fabian v. State, 3 Md. App. 270, 280, at footnote 5, collecting authorities to the effect that no distinction exists between an escape from within prison walls and one effected when the prisoner, in legal custody, was physically outside the prison area.

Nor is there merit in appellant’s contention that he could only be indicted for escaping under Section 714 or 725 of Article 27 of the Code. These statutes apply to persons escaping while on the convict road force and are manifestly inapplicable. See Taylor v. State, 229 Md. 128; Casey v. State, 198 Md. 645; Johnson v. Warden, 196 Md. 672.

Appellant next contends that his two-year sentence constituted cruel and unusual punishment in violation of the State and Federal constitutions. By way of underpinning this argument, he claims that he was on a “work release” program at the time of his escape; that under Section 645K of Article 27 of the Code persons sentenced to a county jail may be placed on a work release program; and that under Section 645(0) of that Article, the only sanction provided for violating “the conditions laid down for his conduct, custody and employment” is that he may be required to serve the balance of his sentence in actual confinement, with any earned diminution of his term being cancelled.

Assuming that appellant was in a “work release” status under Section 645K at the time of his escape, we find nothing in Section 645(0) prohibiting appellant’s indictment and conviction for common law escape or for escape under Section 139. It is well settled that repeals by implication are not favored and will not be so held unless there is some express reference to the previous statute, or unless there is a manifest inconsistency in the two, or the provisions are so repugnant that they cannot stand together. See Thomas v. State, 173 Md. 676; Green v. State, 170 Md. 134. We find no such express reference in Section 645(0), nor inconsistency or repugnancy between Section 139 and Section 645(0), and hold that the latter does not in any way circumscribe the right of the State to indict for escape under Section 139.

In furtherance of his contention that the two-year sentence imposed upon him was cruel and unusual in the constitutional sense, appellant draws attention to the fact that under Section 700A(c) of Article 27 of the Code, authorizing a “work release” program for prisoners under the jurisdiction of the Department of Correction, persons on such programs who fail to return to their place of confinement, can only be found guilty of a misdemeanor, and not a felony. We note that this Section was enacted prior to the 1966 amendment of Section 139 declaring the crime of statutory escape to be a felony. While Section 700A(c) was not amended at the same time, and still declares escape by work release prisoners under the Department’s jurisdiction to be a misdemeanor, a conviction thereunder carries the same penalty presently provided in Section 139. We therefore find no merit in appellant’s contention that his two-year sentence was constitutionally cruel and unusual.

Judgment affirmed.


text:
    PERICLES ELEY v. STATE OF MARYLAND
    [No. 336,
    September Term, 1967.]

      Decided May 29, 1968.

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

      Morris Mazelis for appellant.

      Alfred J. O’Ferrall, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald Needle, Assistant Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Robert W. Baker, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Pericles Eley, the appellant, was convicted of robbery in a trial in the Criminal Court of Baltimore, Judge Meyer M. Cardin presiding without a jury. He complains that the evidence was insufficient to support the verdict.

Jessie J. Williams, age 56, a driver for the Checker Cab Company, testified that on June 3, 1967, at approximately 2:30 A.M., Pericles Eley and a female companion entered his taxicab. They were driven to the vicinity of Patterson Park Avenue and Mura Street, where the female, later identified as Gladys Harvey, left the cab and told the driver to take Eley to the Y.M.C.A. located on Franklin Street. She also told the driver that Eley would pay the fare, and that she had given him $10.00.

On the way to the Y.M.C.A. Williams picked up two additional passengers along the route, whose destination was stated to be Carey Street. Williams testified that he proceeded toward the Y.M.C.A. and that at that location Eley told him that he did not have any money and asked him to wait while he went to his room and got the money. Williams told Eley that he would not wait, but that he would take the other two passengers to Carey Street and then return with Eley to the Y.M.C.A.

After dropping off the other passengers and returning to the Y.M.C.A., Williams accompanied Eley to his room. Williams stated that he accompanied Eley as a matter of standard procedure followed by most taxicab drivers, at the suggestion of the police department when dropping off non-paying passengers at multi-family or commercial dwelling units. Upon entering the room Eley found a ten dollar bill, gave it to Williams, and requested $8.00 change.

Williams testified that when he went to count the change, he was shoved by Eley and fell across a bed. Eley then jumped on Williams, choked him, and robbed him of over $30.00 in one dollar bills. The men struggled for approximately ten minutes, until Williams was exhausted. Eley threatened to use a knife on Williams and demanded more money. Williams said that he had an additional $35.00 at his home, whereupon Eley demanded that it be obtained. The two men then proceeded to Williams’ home, where Williams was able to alert his wife and request that she call the police who arrived soon thereafter.

Officer Charles Von Nordeck of the Baltimore City Police Department testified that he arrived at the home of Williams at 3:53 A.M., and that after speaking with Williams, and receiving a robbery complaint, he placed Eley under arrest. A search of Eley revealed 33 one dollar bills in his wallet, a ten dollar bill, two one dollar bills as well as some change. The officer related that Williams told him that he was robbed at approximately 2:10 A.M. and that the reason for the delay in reporting the crime was that there was a scuffle in Eley’s room. The officer also stated that it would take approximately 25 minutes to drive from the Y.M.C.A. to Williams’ home.

The only witness produced by the defense was Eley who testified that he is not a resident of Baltimore and that he arrived in Baltimore at approximately 6:30 P.M. the evening of June 2nd; that he came to Baltimore to see a lady he had met in New York City, one Gladys Harvey, and that he saw her that evening when she got off work. Eley testified that he and Gladys Harvey left the Kozy Korner about ten minutes to two on the morning of June 3rd. When they stopped the cab driven by Williams, Eley testified that he did not want to get in because there were two other people in the cab who were quite intoxicated. After dropping off the other two passengers, they proceeded to drop off Eley’s girlfriend at her house. At this point, Williams asked Eley to get in the front seat. Eley then testified that Williams picked up two additional passengers and took one to Fulton Street and one to Carey Street where they then proceeded back to the Y.M.C.A. on Franklin Street. The witness then stated that Williams requested his fare. Eley claimed he gave him a ten dollar bill and received $8.35 change.

During the ride, Eley testified that he dozed off and woke up in a start because Williams was touching him and making “wise” remarks; that at one point, he jumped out of the cab and when advised by Williams that he was only joking, he got back into the cab and told him to take him home. He then stated that Williams accompanied him to his room at the Y.M.C.A. with Eley’s consent and attempted to force him to engage in homosexual activities. Eley said he refused. Williams then offered him $100.00, which could be obtained at Williams’ home, if Eley would not tell his girlfriend, Gladys Harvey, of Williams’ activities. Eley stated that Williams had told him that Gladys Harvey knew Williams’ wife. Eley allegedly agreed to the bargain because he felt sorry for Williams. He also stated that once he arrived at the Williams’ residence, he requested Mrs. Williams to call the police. Mrs. Williams, however, testified in rebuttal, that her husband awakened her when he arrived home, told her that he had been robbed, and that she phoned the police. She denied that Eley asked her to call the police.

To bolster his complaint that the evidence was insufficient, Eley contends that the testimony of Williams was so contradictory as to have no probative force, under the rule of Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683. The alleged inconsistencies relate to the testimony by Williams who made innocuous inconsistent statements concerning (1) the number of passengers in the taxicab at the time Eley and his girlfriend first entered the cab; (2) whether Williams drove Eley directly to the Y.M.C.A. after Gladys Harvey left the cab or whether Williams picked up additional passengers first; (3) the time of the robbery; and (4) whether Williams was uncertain as to whether he had been robbed.

The rule laid down in Kucharczyk v. State, supra, is not applicable if the inconsistencies pertain to minor details, Bell v. State, 2 Md. App. 471, 472, 235 A. 2d 307, Tillery v. State, 3 Md. App. 142, 148, 238 A. 2d 125. The first three alleged inconsistencies pertain to minor details. The fourth is based on an erroneous analysis of Williams’ testimony:

“Q. You came out of the room and you got on the same elevator again ?
“A. Yes.
“Q. Who got on first this time ?
“A. He did.
“Q. You had just been robbed?
“A. I think no, I’m not certain, I think he did.
“Q. The door opened and one of you two got in there first, didn’t you ?
“A. Yes.
“Q. You had just been robbed, is that right?
“A. Yes.”

It is clear that in answer to the first question of whether he had been robbed, Williams was still answering the previous question as to who entered the elevator first. Therefore, the asserted inconsistencies do not fall within the rule pronounced by Kucharczyk v. State, supra.

This Court said in Lucas v. State, 2 Md. App. 590, 235 A. 2d 780, 782 that “In reviewing the sufficiency of the evidence, this Court determines whether the court below has sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant’s guilt.” We hold the evidence here sufficient. The Court below was under no obligation to believe Eley’s story, Lawrence v. State, 2 Md. App. 736, 237 A. 2d 81. We find that the trial judge’s findings were not clearly erroneous, Maryland Rule 1086; we must, therefore, affirm the judgment.

Judgment affirmed.


text:
    STATE OF MARYLAND v. MICHAEL DANA GIBSON
    [No. 161,
    September Term, 1967.]

      Decided June 3, 1968.

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

      L. Robert Evans, Deputy State’s Attorney for Baltimore County, with whom were Francis B. Burch, Attorney General, Donald Needle, Assistant Attorney General, and Samuel A. •Green, Jr., State’s Attorney for Baltimore County, on the brief, ior appellant.

      Richard D. Byrd and Donald J. Gilmore, with whom was Wylie L. Ritchey on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

A six-count indictment was returned against appellee Gibson by the Grand Jury of Baltimore County as a result of the death on September 10, 1966 of Diane Grempler by reason of appellee’s alleged illegal and improper operation of a motor vehicle. Each of the first three counts of the indictment charged that appellee “did feloniously kill and slay” the deceased as a direct result of his commission of certain statutory misdemeanors, viz., that he operated his motor vehicle in violation of the motor vehicle laws of Maryland, Maryland Code (1967 Repl. Vol.) Article 66j4, and more specifically

1. As to the first count — that appellee, in violation of Sections 233 and 242, did fail to stop his motor vehicle in dbedience to a stop sign and grant the right of way to a vehicle traveling on a paved highway.

2. As to the second count — that appellee, in violation of Section 209, recklessly operated his motor vehicle upon a public highway.

3. As to the third count — that appellee, in violation of Section 206, operated his motor vehicle under the influence of intoxicating liquors.

The fourth count of the indictment charged that appellee “did feloniously kill and slay” the deceased as a direct result of his commission of a misdemeanor, viz., that he violated the provisions of Section 19.2 of the Baltimore County Code in that he bought, consumed, and possessed an alcoholic beverage on a public highway, he then being a minor.

Each of the first four counts of the indictment expressly characterized the offenses therein charged as constituting a “common law misdemeanor-manslaughter.”

The fifth count of the indictment charged that appellee, while operating a motor vehicle “unlawfully in a grossly negligent manner” caused the death of the decedent. This count of the indictment was expressly based upon Section 388 of Article 27 of the Maryland Code (1967 Repl. Vol.), which provides, in pertinent part, as follows:

“Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as ‘manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle/ and the person so convicted shall be sentenced to jail or the house of correction for not more than three years, or be fined not more than $1,000.00 or be both fined and imprisoned.* * *”

The sixth count of the indictment is not here pertinent.

On March 27, 1967, appellee filed a motion to dismiss the first four counts of the indictment on the ground that each of these counts charged a violation of the common law, viz., “misdemeanor, manslaughter by the operation of a motor vehicle” ; and that as these misdemeanors now constituted a violation of Maryland’s manslaughter by automobile statute (Section 388 of Article 27), the common law offenses were no longer applicable, having been repealed by the legislature as a result of the enactment of that statute.

On June 28, 1967, Judge W. Albert Menchine in the Circuit Court for Baltimore County, granted appellee’s motion to dismiss, stating in a brief opinion accompanying his order that under the common law, a showing of gross negligence was the main requirement for conviction of involuntary manslaughter; and that as none of the four counts alleged either an intention or purpose to harm in the operation of a motor vehicle, or the existence of gross negligence, such counts were not legally sufficient to charge a common law offense. The State has appealed from that order.

The State contends that involuntary manslaughter at common law consisted of an unintentional killing while doing some unlawful act not amounting to a felony, nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself. More particularly, it differentiates the two classes of involuntary manslaughter by characterizing the first class as comprising all those cases wherein the defendant has caused the death of another as a direct and proximate result of doing an unlawful act not amounting to a felony, i.e., a misdemeanor (misdemeanor-manslaughter). As to this category of involuntary manslaughter, the State urges that the existence of negligence is not an element of the offense; that the doing of an unlawful act, which is malum in se or which if malum prohibitum, was in violation of a statute provided to prevent injury to the person, constitutes involuntary manslaughter irrespective of the existence of negligence. The State identifies the second distinct class of involuntary manslaughter as comprising those cases where the defendant, while doing a lawful act in a grossly negligent manner, kills.

It is the State’s position that the common law misdemeanor-manslaughter rule is applicable in Maryland and has not been revised, amended or repealed by the manslaughter by automobile statute (Section 388), which it contends applies only to-a case where the defendant is charged with an unintentional killing in the course of doing a lawful act in an unlawful manner, i.e., driving a motor vehicle in a grossly negligent manner. It is upon this premise that the State maintains that the first four counts of the indictment properly charged the offense of common law manslaughter in that the appellee operated his vehicle in violation of the law in the four particulars set forth in counts one through four of the indictment; that the first three of these are mala in se, but even if mala prohibited, they were violations of statutes calculated to prevent injury to the person.

The appellee, on the other hand, urges that the common law crime of involuntary manslaughter where homicide was the unintentional result of an automobile accident has been repealed by Section 388, and that all cases involving the unintentional killing of a person by an automobile can only be prosecuted under the manslaughter by automobile statute; and that in such prosecutions the State carries the burden of proving gross, negligence in order to obtain a conviction.

Manslaughter is a common law offense and a felony in Maryland; it may be voluntary or involuntary, depending upon the requisite intent, and since the crime is not defined by statute, it is afforded its common law meaning in this State. Connor v. State, 225 Md. 543; Chase v. Jenifer, 219 Md. 564. By Section 387 of Article 27 of the Maryland Code, manslaughter, whether voluntary or involuntary, is punishable by a term of imprisonment not exceeding ten years. The crime of manslaughter by automobile created by Section 388 is a separate statutory misdemeanor, unknown to the common law, and is punishable under the statute by a designated fine and/or imprisonment in jail or the house of correction for a term not to exceed three years. See Connor v. State, supra.

Involuntary manslaughter at common law has been generally defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. See 1 Warren on Homicide (Perm. Ed. 1938), 420, 421; 26 Am. Jur. Homicide, Sec. 18, 44; 40 C.J.S. Homicide, Sec. 55, and cases therein cited. To this basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum, and as to the second and third classes of the offense, that the negligence be criminally culpable, i.e., that it be gross. Clark and Marshall, Crimes (Sixth Ed.), Sections 10.04, 10.12-10.14; Perkins on Criminal Law, pp. 34, 57-61; Wharton’s Criminal Law and Procedure, (Anderson Ed.), Vol. 1, Sections 289-292, 296, and cases therein cited.

It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, or by negligently failing to perform a legal duty (the second and third classes of involuntary manslaughter above delineated), the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life. Maryland v. Chapman, 101 F. Supp. 335 (D. C. Md.); Palmer v. State, 223 Md. 341; Craig v. State, 220 Md. 590; Chase v. Jenifer, supra; Neusbaum v. State, 156 Md. 149. It is equally well settled that the Legislature, in enacting Section 388, making it a misdemeanor to cause the death of another as a result of operating an automobile “in a grossly negligent manner,” intended to adopt this same standard of gross negligence (a wanton or reckless disregard of human life) as the minimum requirement to support a conviction for this statutory offense. Connor v. State, supra; Lilly v. State, 212 Md. 436; Thomas v. State, 206 Md. 49; Duren v. State, 203 Md. 584; Hughes v. State, 198 Md. 424; Montague v. State, 3 Md. App. 66.

It is likewise clear that the Maryland cases have generally recognized that a charge of involuntary manslaughter at common law could in some circumstances at least be based on the doing of an unlawful act. In Neusbaum v. State, supra, the court, in defining a felonious homicide, characterized the crime so as to include those cases where one takes the life of another unintentionally and without excuse “while needlessly doing anything in its nature dangerous to life, or who causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong.” 156 Md. at page 155. To like effect, the court in Insurance Company v. Prostic, 169 Md. 535, in discussing a felonious homicide, held at page 539 that “when the person acting has no intention to injure anybody, but death is the result of unlawful action endangering life, there is manslaughter, at least.”

Neusbaum and Prostic seemingly share a common thread— that where a prosecution for involuntary manslaughter is based on the commission of an unlawful act causing death, the act must itself be dangerous to life. As the Prostic court observed, if the person causing the death of another “intends to do an unlawful and wrongful act, which is punishable because it is wrong in itself, and in doing it he inflicts an unforeseen injury, he is criminally liable for that injury” [since] “[t]here are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief, and the party committing them causing death by such conduct will be guilty of manslaughter.” 169 Md. at page 539.

It is against this background that we examine whether the first four counts of the indictment returned against the appellee • — which are expressly bottomed upon the applicability of the so called misdemeanor-manslaughter rule (an unintended homicide committed in the course of doing an unlawful act, i.e., committing a misdemeanor) — properly charge an existing offense in this State, when considered in light of the provisions of Section 388 and of the legislative intention in enacting that statute.

We note at the outset that the manner of operating a motor vehicle is commonly regulated in detail by statute or ordinance and that it is an unlawful act in itself to drive a vehicle in violation of such laws. It is not, however, a generally accepted rule that the fact alone that the operator of an automobile was violating the motor vehicle laws when his car struck and killed a person renders him, without more, guilty of involuntary manslaughter at common law. The authorities are divided on the question, some holding, as in State v. Hupf, 101 A. 2d 355 (Del.), that where a person violates a traffic statute which proximately results in the death of another, he is guilty of involuntary manslaughter, without regard to whether the violation was malum prohibitum or malum in se, and irrespective of whether there was any proof that the motorist’s conduct evidenced a wanton or reckless disregard for the lives and safety of others. Other authorities support the view as articulated in State v. Strobel, 304 P. 2d 606 (Mont.), that such violations of law proximately resulting in the death of another, whether the violation was malum in se, or malum prohibitum, do not constitute involuntary manslaughter, unless the element of criminal negligence is also present. .Still other authorities distinguish between unlawful acts mala prohibita and mala in se, and conclude, in effect, that where the violation was merely malum prohibitum, no criminal homicide results, unless the violation was dangerous to life and constituted a reckless disregard for the safety of others; but that where the unlawful act underlying death was malum in se the violator would be guilty of involuntary manslaughter, even though the unlawful act was not calculated to cause death. The cases are collected at 7 Am. Jur. 2d, Automobiles and Highway Traffic, Sec. 279, and in Wharton’s Criminal Law and Procedure (Anderson Ed.), Vol. 3, Sec. 973.

The only case in Maryland involving a charge of common law involuntary manslaughter growing out of the operation of a motor vehicle is Neusbaum v. State, supra. In that case, decided in 1928, thirteen years before the enactment in 1941 of what is now Section 388, the indictment specified that the defendant “feloniously and negligently did kill and slay” the deceased. The court there held that as the offense was based on the theory that the decedent had been killed as a result of the defendant’s negligence in operating his vehicle, it was necessary to prove that such negligence was gross or criminal, since no other degree would be felonious. Neusbaum did not concern itself with that species of involuntary manslaughter upon which the four counts of the indictment now in question are expressly based, although, as heretofore indicated, the dictum in that case is that, where a prosecution for involuntary manslaughter is predicated on the commission of an unlawful act causing death, the act must itself be dangerous to life. This dictum would appear to be consistent with the holding in Worthington v. State, 92 Md. 222, a case decided in 1901, which concluded, in effect, that since an unlawful attempt to procure an abortion (a misdemeanor) is an act dangerous to life (or malum in se), a death resulting from such an attempt will not be less than manslaughter.

While these cases might be construed to place Maryland among those authorities which hold that an unintentional killing committed in the course of doing some non-felonious unlawful act dangerous to life or malum in se, constitutes involuntary manslaughter at common law, irrespective of the •existence of criminal negligence, we are persuaded that if such was ever the law of this State, it no longer has any application to those cases where the homicide results unintentionally from the operation of a motor vehicle — it being our view that such cases can only be prosecuted under Section 388.

There is no legislative history to which we may turn to ascertain the exact reach of Section 388, or of the effect of that statute upon the common law felony of involuntary manslaughter. We think it plain, however, that when Section 388 was enacted by Chapter 414 of the Acts of 1941, there then existed much confusion and little enlightenment among the authorities with respect to which of the several theories underlying application of the misdemeanor-manslaughter rule was the correct one. Quite clearly, where such unintentional homicides proximately resulted from driving an automobile in violation of laws designed to regulate and control the operation of motor vehicles in the interest of public safety there was an overlapping and blurring between and among the different theories of criminal responsibility, since in most instances such a violation constituted not only an unlawful act, but one dangerous to the lives and safety of others and such as manifested a wanton and reckless disregard of human life. We believe that the Legislature in enacting Section 388 to punish persons who cause the death of another “as the result of the driving, operation or control of an automobile * * * in a grossly negligent manner,” intended to treat all unintended homicides thereby resulting in the same way, without regard to whether the homicide occurred in the course of doing a lawful or an unlawful act, or whether such act was malum in se or merely malum prohibitum. To otherwise conclude would be to attribute an intention to the Legislature to permit the prosecution of offenders either for the felony of common law manslaughter, with its ten-year penalty, or for the statutory misdemeanor of manslaughter by automobile, with its three-year penalty, even though, where the prosecution is based upon gross negligence, the proof necessary to justify a conviction in either case would be precisely the same (a wanton or reckless disregard of human life). A similarly incongruous result would follow from attributing an intention to the Legislature to permit a felony conviction and ten-year sentence upon simple proof that the accidental homicide occurred in the commission of an unlawful act (a misdemeanor), while requiring a greater degree of proof under the statute to support a conviction for a lesser grade of homicide, a misdemeanor punishable by a maximum of three years imprisonment. In construing statutes, results that are unreasonable or inconsistent with common sense should be avoided, whenever possible. See Height v. State, 225 Md. 251. We conclude, therefore, that in enacting Section 388, the Legislature intended to deal with an entire subject matter — unintended homicides resulting from the operation of a motor vehicle — and that the common law crime of involuntary manslaughter, when based on homicides so occurring, is in conflict with the statute and must yield to it to the extent of the inconsistency. See Lutz v. State, 167 Md. 12. We observe in this connection that in enacting Section 388, the Legislature expressly provided (Section 2 of Chapter 414 of the Acts of 1941) that “all acts inconsistent with the provisions of this Act are repealed to the extent of such inconsistency.” While the crime of manslaughter is not defined by statute in Maryland, it is, as heretofore stated, recognized by Section 387 of Article 27 and provision made for its punishment. The rule is well settled that “where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute imposes a different penalty for the same, or practically the same, offense, the later statute repeals the earlier one, and this is true whether the penalty is increased or diminished.” 82 C.J.S. Statutes, Sec. 303. See also 50 Am. Jur. Statutes, Sec. 567.

In holding that the first four counts of the indictment must be dismissed, we are not unmindful of the rule that statutes in derogation of the common law must be strictly construed (Gleaton v. State, 235 Md. 271). Nor do we overlook the proposition that it is not to be presumed that the Legislature intended to make any innovation upon the common law further than that required (Luts v. State, supra). And we have not failed to consider cases such as State v. London, 162 A. 2d 150 (Me.), and authorities therein cited, certain of which appear to hold, in circumstances not dissimilar to those presented by the instant case, that a negligent or reckless homicide statute punishing manslaughter by automobile does not repeal the crime of common law involuntary manslaughter when based on death occurring from a motor vehicle accident during the commission of an unlawful act. See also Clark and Marshall, Crimes, Sec. 10.13. The cardinal rule in the construction of statutes is, however to effectuate the real and actual intention of the Legislature. In affirming the dismissal of the first four counts of the indictment, we believe we have accomplished this purpose.

Order affirmed.

      . While ordinarily the State has no right of immediate appeal from an order dismissing less than all counts of an indictment (see State v. Gregg, 163 Md. 353), it appears that after the court’s order, the State entered a noils prosequi to the remaining counts of the indictment.

      . In which event it may constitute murder.

      . There must, of course, be a causal connection between such gross negligence and death to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended. Palmer v. State, supra; Craig v. State, supra.

      . Under Section 388, violation of a statute enacted for the control of motor vehicles, by itself, is usually not sufficient to support a conviction. See Abe v. State, 230 Md. 439 (exceeding the speed limit), and Lilly v. State, supra (driving through a stop sign, excessive speed, and driving under the influence of alcohol). See also Clay v. State, 211 Md. 577, setting forth the test for determining when an individual may be deemed to be driving while under the influence of alcohol.

        . Section 388 does not, of course, abrogate the crime of manslaughter in those cases where the killing was accomplished by intentionally running over the victim in an automobile. Connor v. State, supra; Allison v. State, 203 Md. 1.