author: Orth, J., Thompson, J.,

text:
    ROOSEVELT BOONE v. STATE OF MARYLAND
    [No. 48,
    September Term, 1967.]

      Decided January 24, 1968.

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

      Robert F. Freeze for appellant.

      Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Samuel Peregoff, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the majority opinion of the Court. Thompson, J., dissents. Dissenting opinion by Thompson, J., at page 36, infra.

The appellant, Abraham Goode, Alphonso Obadiah Craft, and James Kitt were jointly indicted for the murder and robbery with a deadly weapon of Charles Oliver Hazard by a grand jury for the City of Baltimore on January 29, 1965, prior to the decisions of the Court of Appeals in Schowgurow v. State, 240 Md. 121 and State v. Madison, 240 Md. 265. On November 2, 1965, the appellant and the other co-defendants were again indicted for the robbery with a deadly weapon and, with the exception of Goode, for the murder, and the original indictments against the appellant were dismissed upon his motion based on the decision in Schowgurow on November 9, 1965. On February 14, 1966, upon the appellant’s request for a change of venue, his case was removed to the Circuit Court for Baltimore County where trial was held before a jury. The jury returned a verdict of “guilty” on the murder indictment without specifying whether it was murder in the first or second degree. As Art. 27, § 412, Md. Code (1967 Repl. Vol.) provides that on finding a person guilty of murder, the jury shall “* * * ascertain in their verdict whether it be murder in the first or second degree * * the trial court granted the appellant’s motion for a new trial. The appellant waived a trial by jury at the retrial. The court convicted him of murder in the first degree and sentenced him to imprisonment for the term of his natural life.

The State’s case depended in large measure upon the testimony of the co-defendant, Craft, who was granted immunity from prosecution, the cases against him being stetted. Craft had testified for the State in the trial of the co-defendant, Kitt. When called to the stand in the instant case, however, Craft stated that he had been advised by his attorney that he had been granted immunity in the case of Kitt v. State, for his testimony, “* * * but I was never informed that I would have to testify against Boone in this case, and I informed the State that I didn’t want to testify and I still don’t want to testify in this case.” He indicated that it was his constitutional right not to testify as the testimony might incriminate him but he admitted he testified on “the same charge” in the case against Kitt. The trial court held that Craft was a compellable witness and directed him to answer questions “pertinent to the issue here involved, namely * * * the indictment of the defendant, Roosevelt Boone.” The appellant contends that the trial court erred in compelling Craft to testify. The contention is fully answered by Butz v. State, 221 Md. 68, 73-74:

“The privilege against self-incrimination is a personal one and must be asserted by the witness, and, although it is by no means certain that Mrs. Curry [the witness] properly claimed the privilege, for the purposes of this case we shall assume that neither the court nor the prosecutor, without conferral of power by statute, could grant her immunity and that she properly claimed the privilege. With both of these assumptions in favor of the appellant, it avails him nothing. The privilege belonged to the witness, not to the defendant. Roddy v. Finnegan, 43 Md. 490, 502; Raymond v. State, 195 Md. 126, 130, 72 A. 2d 711. Cf. Richardson v. State, 103 Md. 112, 117, 63 A. 317. It is intended for the protection of the witness only and does not involve any right of the parties to litigation (unless, of course, the witness is also the party). 8 Wigmore, Evidence (3rd Ed.), Secs. 2196, 2270. The testimony given by a witness, who has a proper claim of privilege, is not subject to objection on the ground of privilege at the instance of the defendant, but is competent evidence and admissible against him, if material. Chesapeake Club v. State, 63 Md. 446, 455, 458. And if a witness makes a claim of privilege and it is improperly disallowed by the court, it is not reversible error on behalf of a party to the action. Wigmore, ibid., and other authorities named below.
In making the above ruling, we realize that it is not in conformity with one phase of the Chesapeake Club case, just referred to, and, insofar as that case is to be construed as a general holding to the effect that a defendant in a criminal case is entitled to a new trial because privileged, though material, testimony of a witness, who is not a party, has been admitted in evidence, we decline to follow the same.”

See also Forrester v. State, 224 Md. 337. Thus we think that the testimony of Craft was competent evidence and, being clearly material, was admissible against the appellant. Even assuming that the testimony was privileged, which we need not decide, its admission in evidence did not constitute reversible error. The appellant relies on Royal v. State, 236 Md. 443 and Shifflett v. State, 245 Md. 169, urging that in compelling Craft to testify the trial court did not follow the guidelines as to procedure established by those cases. We do not find them apposite. In Royal the Court found no impropriety in the trial court not requiring the witnesses called by the defendant to testify in his behalf. The Court said, page 448:

“In circumstances where the court is satisfied that the claim has a substantial basis, the mere refusal to testify under a claim of privilege may justify the upholding of the privilege.”

But the Court again stated that “* * * the privilege against self-incrimination is a personal one and only the witness may assert it.” p. 447. Shifflett was an appeal from a contempt citation for refusal to testify and the Court held that since no questions were asked by the prosecuting attorney with regard to matters material to the criminal cases then on trial, there was no contempt.

It is clear that Craft was a principal in the second degree. He drove the automobile used by the actual perpetrators of the crimes and was in close proximity and contiguity to the immediate place where the crimes were committed, in a position to render aid and assistance. Vincent v. State, 220 Md. 232; Agresti v. State, 2 Md. App. 278. He was, therefore, an accomplice. Barton v. State, 2 Md. App. 52. His testimony being admissible, the question is whether it was sufficiently corroborated, the appellant contending that it was not.

At common law a verdict of the jury would not be set aside merely because founded on the evidence of an accomplice which was not corroborated. Luery v. State, 116 Md. 284. Some jurisdictions do not require corroboration. See State v. Carey, 76 Conn. 342, 56 A. 632; Burns v. People, 148 Colo. 245, 365 P. 2d 698; Commonwealth v. Taber, 350 Mass. 186, 213 N. E. 2d 868; Lyda v. United States, 321 F. 2d 788 (9th Cir.). In some jurisdictions it is required by statute. See People v. Kress, 284 N. Y. 452, 31 N. E. 2d 898; Hubbard v. State, 35 Ala. App. 211, 45 So. 2d 795; People v. Lyons, 50 Cal. 2d 245, 324 P. 2d 556. In at least one jurisdiction other than Maryland it is required by judicial decision. See Sherrill v. State, 204 Tenn. 427, 321 S. W. 2d 811.

In Maryland the rule was formulated in Luery v. State, supra. After discussing the reasoning behind the development of the rule, the Court said, pp. 293-294:

“Hence it would seem to be safer to require some corroboration * * *. As the reason for the rule, as adopted by most Courts, is that the testimony of an accomplice alone and unsupported is regarded as too doubtful to be safe, the important matter is to have him supported in at least some of the material points involved, tending to show the guilt of the accused.”

It said, however, that the trial courts should not require too much in the way of corroboration and that it is not required to have sufficient evidence to convict, exclusive of the accomplice’s testimony. In Wright v. State, 219 Md. 643, the Court said, page 648:

“In all of the cases which followed the Luery case, supra, during the period from 1911 to 1950, the rule was restated and the judgments were either affirmed or the appeals dismissed because the sufficiency of corroboration was reviewable only on a motion for a new trial in the lower court and not on appeal.”

Since December 1, 1950 (the effective date of the amendment to § 5 of Article XV of the Constitution of Maryland giving the Court of Appeals the right and duty—if and when a question is properly raised—to review the legal sufficiency of the evidence in a criminal case) to the decision in Wright, the sufficiency of the corroboration of an accomplice’s testimony was considered in a number of cases, and was deemed sufficient because it “* * * consisted of the behavior and conduct of the accused, or his presence at the scene of the crime under suspicious circumstances, or the ample and sufficient testimony of non-accomplice witnesses in support of some of the material points of the accomplice’s testimony.” 219 Md. 648. In Wolf v. State, 143 Md. 489, the Court had said, by way of dictum, that the requirement was that the corroborative evidence “* * * should tend to sustain the charge with respect to ‘some of the material points involved’ [quoting Luery v. State, supra].” In Wright the Court thought it salutary to discuss more fully what was meant by “corroborate” and “some of the material points” or facts. Citing 1 Underhill, Criminal Evidence (5th Ed. 1956) § 185; Wigmore Evidence (3rd Ed. 1940) § 2059 b and c,,and Polansky v. State, 205 Md. 362, it restated the rule as follows, p. 650:

“[N]ot much in the way of. corroboration is required and * * * it is not necessary in and of itself for the corroborative evidence to be sufficient to convict, yet the corroborative evidence must support the testimony of the accomplice as to some of the material facts tending to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself.” (emphasis supplied)

This restatement of the rule is in accord with the reasons requiring the testimony of an accomplice to be corroborated as set forth in Watson v. State, 208 Md. 210 at 217:

“The reason for the rule requiring the testimony of an accomplice to be corroborated is that it is the testimony of a person admittedly contaminated with guilt, who admits his participation in the crime for which he particularly blames the defendant, and it should be regarded with great suspicion and caution, because otherwise the life or liberty of an innocent person might be taken away by a witness who makes the accusation either to gratify his malice or to shield himself from punishment, or in the hope of receiving clemency by turning State’s evidence.”

It is also in accord with the rule as followed in Tennessee where the rule is judicial and not statutory. It was said in Sherrill v. State, supra, 321 S. W. 2d 811, 815:

“The corroborative evidence must of its own force, independently of the accomplice’s testimony, tend to connect the defendant with the commission of the crime.”

The rule as established by statute in New York, Alabama and California is to like effect. In People v. Kress, supra, the Court said that the New York Code of Criminal Procedure, § 399 specifically requires that the evidence connect the defendant with the crime itself. The Code of Alabama (1958) Title 15 § 307 requires corroborative evidence tending to connect the defendant with the commission of the offense and such corroborative evidence is not sufficient if it merely shows the commission of the offense or the circumstances thereof. In People v. Lyons, supra, the Court said, 324 P. 2d 562 that such evidence must tend to connect the defendant with the commission of the offense and implicate him. See 1 Underhill, Criminal Evidence (1956 Ed.) § 184, pp. 399-400.

We think it clear that the rule in this State is that evidence corroborating the testimony of an accomplice is not sufficient if it merely shows the commission of the offense or the circumstances thereof and that some of the material facts of the accomplice’s testimony which it must support are such material facts which tend to show that the accused was either identified with the perpetrators of the crime or had participated in the commission of the crime itself. “Whether the testimony has in fact been sufficiently corroborated must, of course, depend upon the facts and circumstances, and the inferences deducible therefrom, in each case.” Wright v. State, supra, at page 650. The Court of Appeals and this Court in confirming judgments when the question has been raised, have found corroborative evidence tending to identify the defendant with the perpetrators of the crime, or tending to show his participation in the commission of the crime or both. In Keene v. State, 2 Md. App. 325 we reversed judgments rendered on receiving stolen goods because “* * * there was no evidence whatsoever to identify the accused with the perpetrators of the crime or to show that he had participated in the commission of the crime itself * * *” except for the testimony of the accomplice.

From the record in the instant case we find no corroborative evidence supporting the testimony of the accomplice, Craft, as to some of the material facts tending to show that the appellant was identified with the perpetrators of the crime or had participated in the commission of the crime itself. Craft testified that about 12:15 A. M. on January 2, 1965 he, the appellant, Goode and Kitt planned to rob “Little Melvin,” a narcotics pusher. Melvin failed to appear at his house after a wait of some three and one-half hours and the quartet formulated plans for another robbery. Pursuant to the plan, they drove in Craft’s “cream colored yellow” ’62 Chevrolet to a lot “down the street behind” Burman’s Cafe, the place of the intended robbery. Craft remained in the automobile while the other three went toward the cafe. The appellant and Goode were to go inside while Kitt remained outside. Shortly after the three left the automobile, Craft saw a “little boy come by.” The boy had on a hood with the eyes and nose cut out. Kitt came back to the automobile, followed a few seconds later by the appellant and Goode. The appellant went to the rear of the automobile and placed a bag over the license plate and then joined Kitt, Goode and Craft in the automobile. Kitt had a pistol with a white handle and pointed the pistol at Goode because Goode said he had shot someone in the cafe but it was an accident. The appellant grabbed Kitt’s arm saying that “it wasn’t any sense in him shooting” Goode. The appellant and Kitt left Craft’s automobile shortly after the killing, at which time Goode gave some money to each of them. Craft did not remember how any of his companions were dressed.

By stipulation, the State read into evidence the testimony of three witnesses at the first trial, James C. Burman, the owner of the property (the license was in his wife’s name), Wayne Fleming, a young newsboy, and Leon Marchbanks, a police officer. Burman arrived at the cafe about 6:30 A. M. on January 2, 1965, saw blood all over the floor and an open cash register with $23.00 missing therefrom. Fleming, delivering his papers, saw two men inside the cafe about 6:05 A. M. on January 2, 1965. One had on a green jacket. He walked around the corner and two men ran around the corner with bags in their hands. He noticed that one man was a Negro. He gave no description of the other men. They ran to a ’62 or ’63 white Chevrolet. “I think they opened the trunk. They either put something in or took something out and they got in the car, and less than thirty seconds later the car was gone down into the street.” Fleming was wearing a face mask on the morning of the incident because it was cold. The mask was introduced in evidence upon identification by Fleming. Marchbanks, “working the radio car” on January 2, 1965, received a call to go to Bur-man’s Tavern to investigate a holdup. He discovered the bartender, Hazard, had been- shot. Hazard told him that “two colored males came into the bar and ordered a cup of coffee and a bottle of vodka, and when he set the articles on the bar, one subject produced a gun and walked around behind the bar and started going through the cash register, told him to lay on the floor, and Mr. Hazard told him there was some money in a bottom drawer, and as he went to get the money out of the drawer, he said that’s when the subject shot him while he was laying on the floor, and at that time both of them run outside the bar.”

The autopsy report, also admitted in evidence by stipulation, established that Hazard died of a gunshot wound, and that his death was a homicide, incurred during a holdup at Burman’s Cafe, wherein the deceased was found.

The evidence adduced by the State corroborated the accomplice’s testimony as to the commission of the offense and the circumstances thereof but it did not support his testimony as to some of the material facts tending to show that the appellant was either identified with the crime or had participated in its commission. There was no corroborative evidence, for example, that the-appellant was in the company of the perpetrators either shortly before or shortly after the crime, or that he was in the vicinity of the crime when it was committed, or that he was in possession of the murder weapon or of some of the proceeds of the robbery - or that he was seen in Craft’s automobile. In short, there was no evidence to connect the appellant with the perpetrators or the commission of the crime except the testimony of the accomplice and this is not sufficient. In Kitt v. State, supra, in which we found the corroborative evidence to be sufficient, there was the testimony of a non-accomplice, Evelyn Knight, that between 6 :00 A. M. and 7:00 A. M. on the morning of January 2, 1965 the appellant and Kitt came to her house and that Kitt had a gun with a white handle. Kitt also acknowledged to a police officer that he had seen Craft, Goode and the appellant together prior to the commission of the crime. Mrs. Knight was called as a witness by the State in the instant case, but upon objection, her testimony was ruled inadmissible. We find that there was not sufficient corroboration of the testimony of the accomplice to sustain the conviction. We must, therefore, reverse the judgment and shall remand the case for a new trial.

Although the case is remanded for a new trial, it is deemed advisable to consider certain of the appellant’s other contentions.

DOUBLE JEOPARDY

The appellant contends that he was twice placed in jeopardy. This contention is based on two grounds: first, that “jeopardy attached at the moment of the subsequent indictment” returned against him after the decision in Schowgurow v. State, supra, and, second, that he was placed in jeopardy at his first trial in the Circuit Court for Baltimore County, resulting in the granting of a new trial on the murder charge because of the form of verdict of the jury.

Among the rights of an accused in criminal proceedings set forth in Amendment V to the Constitution of the United States is that no person shall “* * * be subject for the same offense to be twice put in jeopardy of life or limb * * This provision has not as yet been held to be applicable to state court prosecutions under the Due Process Clause of the Fourteenth Amendment. Ruckle v. State, 230 Md. 580; Gee v. State, 2 Md. App. 61. However, in Maryland, protection against double jeopardy is available by way of the common law. State v. Barger, 242 Md. 616; Smith v. State, 1 Md. App. 297. In 1863, in Hoffman v. State, 20 Md. 425, 434 the Court of Appeals stated the common law meaning and adopted it:

“At common law it meant nothing more than that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offense.”

In Hoffman, the following proceedings were entered of record, p. 430:

“[BJecause it appears to the said court here, that after the said jury had been sworn, and the above indictment had been read to them, and they had been charged in the usual way by the clerk of the court here, several witnesses for the State who had been in attendance up to that period, had been discovered to be absent, and that after adjournment to the next day, the said witnesses were still absent, which said witnesses had been duly summoned and put under security for their presence in court upon the trial of the case, and attachments against them having been issued and returned ‘non estf no statement having been made or evidence offered to the jury in the said case, therefore, by order of the said court here, the said jury are discharged, and are wholly discharged from giving any verdict of and upon the premises above mentioned in the said case * * * »

The defendant objected to the discharge of the jury and moved the court to discharge him on the ground that he could not be put twice in jeopardy for the same offense. Applying the common law meaning, the Court held that he was not “for the same offense twice put in jeopardy of life or limb,” and that the discharge of the jury, being a matter of discretion of the trial court, was not a subject of review on a writ of error. The defendant based his contention on the double jeopardy clause of the Fifth Amendment. The Court did not discuss the applicability of the clause to state prosecutions (The 14th Amendment was not declared ratified until July 28, 1868) but interpreted the clause in accordance with the authorized exposition established at its adoption, stating that, “Being transformed from a legal maxim to a constitutional clause, does not, it is apprehended, change the meaning of words, although it makes the right they guaranty, more solemn and sacred.” p. 433. It found that in the decisions of the English courts antecedent to the Constitution the term “twice in jeopardy” had been construed as equivalent to autre fois acquit or autre fois convict and that this construetion had been followed by the Supreme Court of the United States and by the courts of Massachusetts, New York and Mississippi. Thus, it said, no man is in jeopardy until verdict is rendered. The common law meaning of double jeopardy as stated in Hoffman was followed in Anderson v. State, 86 Md. 479, the Court holding that the fact that a jury in a criminal case was discharged because unable to agree upon a verdict was no bar to a subsequent trial “* * * because there was no verdict by the jury, and no man is in jeopardy until verdict has been rendered.” p. 482. Hoffman was cited in Robb v. State, 190 Md. 641, 650 as authority for the statement that the rule against double jeopardy is not set out in the Maryland Constitution but is applied in this State as a doctrine of the common law and also in State v. Barger, 242 Md. 616, 619 where the rule as set forth in Hoffman was quoted in a discussion of “The Principle of Double Jeopardy”. We find no case in this State holding directly or by inference that the common law meaning of double jeopardy as enunciated in Hoffman is not now controlling. The effect of the entry of a nolle prosequi is not inconsistent with this common law meaning. If entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal. Hochheimer, The Laws of Crimes and Criminal Procedure, 2nd Ed. § 152, p. 171. For entry of a nolle prosequi before trial see Barrett v. State, 155 Md. 636; for such entry after trial has begun see Friend v. State, 175 Md. 352. The great majority of the cases in this jurisdiction in which the question of double jeopardy is presented involve the question after a verdict of acquittal or conviction. It has been established that an accused cannot be again tried after a verdict of acquittal. As the Court said in State v. Shields, 49 Md. 301, 303 (quoted in State v. Adams, 196 Md. 341, 348):

“It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters’.not whether such’ verdict be the result of a misdirection of the judge oh a question of law, or of a misconception of fact on the part of the jury.”

See also State v. Reed, 12 Md. 263. In Barger v. State, 235 Md. 556, the accused was indicted for murder and found by a jury to be guilty of murder in the second degree. On appeal, the Court reversed the judgment and remanded the case for a new trial because the trial court erred in denying an advisory instruction with regard to the right of the accused to assert the defense of self defense. Following remand the State indicated it intended to retry the accused as if he were being tried for the first time and the accused moved to dismiss the indictment on the ground of double jeopardy. The lower court granted the motion “as to murder in the first degree” and the State appealed, State v. Barger, supra. The Court held “* * * that where there has been a regular trial on a valid indictment and a finding of not guilty of murder in the first degree the accused cannot thereafter be tried at the instigation of the State for the offense of first degree murder” and “* * * the appeal and granting of a new trial did not have the effect of waiving the question of double jeopardy as to first degree murder.” pp. 625-626, 628. In reaching the decision the Court cited three cases as sufficient to illustrate the effect of the common law rule as it has been consistently applied in this State—State v. Shields, supra; Cochran v. State, 119 Md. 539; State v. Rosen, 181 Md. 167. In each the accused had been acquitted on a valid indictment and further prosecution was barred. Although the rule against double jeopardy also forbids a second trial for the same offense when the accused was convicted, Gilpin v. State; 142 Md. 464, this does not preclude a retrial granted on remand upon reversal of the judgment on appeal. See State v. Williams, 5 Md. 82. So in State v. Barger, supra, the Court held that Barger could be tried again on second degree murder or manslaughter. Whether the rationale be that there is no conviction outstanding when judgment is reversed or that a waiver is accomplished by the affirmative action of the defendant when he procures a judgment against him to be reversed or set aside on appeal, the Court of Appeals and this Court have consistently permitted the accused to be again tried upon a reversal. Other cases in which the question of double jeopardy has been presented are consistent with the rule. If an accused has not been tried on a valid indictment, he has not been put in jeopardy and may be tried again. Kearney v. State, 48 Md. 16, 27. The same is true of trial on an invalid information. Stearns v. State, 81 Md. 341, 347; State ex rel Shatzer v. Warden, 192 Md. 728, 729; Basta v. State, 133 Md. 568, 572. It is noted that each of Kearney, Stearns, Shatzer and Basta cited Hoffman. Defective delinquent proceedings do not place one in jeopardy, Eggleston v. State, 209 Md. 504. Punishment by prison authorities for escape is no bar to prosecution for escape. Ford v. State, 237 Md. 266. Discharge at a preliminary hearing before a magistrate does not bar a subsequent prosecution, Wampler v. Warden, 231 Md. 639. A prosecution in a magistrate’s court for contributing to the delinquency of a minor, over which that court had exclusive jurisdiction, was no bar to prosecution in a circuit court for statutory rape, over which the magistrate had no jurisdiction, Bennett v. State, 229 Md. 208.

Having determined that the common law meaning of double jeopardy, as stated in Hoffman v. State, supra, is controlling in Maryland, we apply it to the facts before us. Clearly the first ground urged by the appellant to support his contention that he was twice put in jeopardy—that he was placed in jeopardy at the moment the second indictment was returned against him —is without merit. At that time he had not been brought to trial under the first indictment; he had not been even once placed in jeopardy. And even if he had been previously tried under the first indictment which he elected to declare invalid, jeopardy would not have attached. Sadler v. State, 1 Md. App. 383.

The factual situation with regard to his second ground—that he was placed in jeopardy at his first trial—is that the jury at that trial returned a verdict of guilty on the murder indictment without specifying whether it was murder in the first or second degree and was discharged without so finding. The question is whether the verdict was a final one of acquittal or conviction. The verdict was not pursuant to Md. Code (1967 Repl. Vol.) Art. 27, § 412 which provides that on finding a person guilty of murder, the jury shall “* * * ascertain in their verdict whether it be murder in the first or second degree * * *,” and was, therefore, improper. In State v. Sutton, 4 Gill 387, the indictment contained two counts, first for rape and second for assault with intent to rape and the jury, making no finding on the first count, rendered a verdict of guilty on the second count. The lower court discharged the defendant and the State sued out a writ of error. The Court found, “This verdict, therefore, in the language of the books, was ill, and should have been set aside by the Court.” p. 391. It did not agree with the course pursued by the lower court in arresting judgment and discharging the accused, stating, p. 391:

“It cannot be said with correctness, that a verdict, which in legal contemplation is a nullity, could jeopard the life or limb of a party. * * * The verdict was imperfect, and the matter in issue not ascertained, as that the Court could render any judgment thereon, and therefore it was a mis-trial. The County Court erred in discharging the prisoner; the Court should have awarded a venire de novo.”

In Ford v. State, 12 Md. 514, the Court, noting that the statute required that the jury, on a conviction of murder, ascertain in their verdict whether it be murder in the first or second degree, found that a verdict of “guilty” was not sufficient, and said, at 549:

“In the eye of the law, there has been no valid and sufficient verdict; and, as a consequence, there must be a new trial. This case is not like Cochrane v. State, 6 Md. 400, where there was a necessity to find a new indictment, because of the defect in the one on which the accused was arraigned and tried. In this case there is no defect in the indictment, and the party can be tried again on it, as in State v. Sutton, 4 Gill, 494. This was a mistrial, and a venire de novo must be awarded.”

In Williams v. State, 60 Md. 402, the foreman declared the verdict of the jury to be guilty of murder in the first degree. On a poll of the jury, each juror responded guilty without specifying the degree of murder. The Court held the verdict a nullity. It said, at 404, “[T]he verdict rendered on the poll is a defective verdict, and we must reverse the judgment and award a new trial.” In Price v. State, 159 Md. 491, the jury returned a verdict of guilty of murder in the first degree without a finding on the issue of sanity which had been raised. The Court said, p. 500:

“As in the crime of murder it is indispensable for the jury to find the degree in order for the court to know what sentence or judgment may be given, so where, after indictment, the defence is taken on insanity, it it similarly made requisite by statute that the party’s sanity both at the time of the alleged offence and of trial must be found by verdict before a sentence or judgment may be passed.”

It held, p. 503 :

“On the fatally incomplete verdict given in the appeal at bar the trial court had no jurisdiction to proceed to a judgment, which, being a nullity, is no bar to a second trial, and the judgment entered should be reversed and the case should be remanded for a second trial under a writ of venire facias de novo.”

We hold that the verdict of the jury on the murder indictment at the first trial of the appellant was a nullity and the appellant was not thereby either convicted or acquitted of murder in the first or second degree. There being no final verdict either of acquittal or conviction, the appellant was not put in jeopardy at that trial and was, therefore, not put twice in jeopardy by the first retrial, and will not be put twice in jeopardy by retrial for murder on remand upon our reversal of the judgment of the second trial.

STATEMENTS OP THE APPELLANT

At the trial Craft testified that when the appellant returned to the automobile after the crime he said he put a bag over the license and shortly afterwards, in preventing Kitt from shooting Goode, said that “it wasn’t any sense in him * * * shooting him.” The appellant claims it was error to allow this testimony because those statements had not been furnished by the State in answer to his motion for discovery. We think the statements were not such “oral statements” as to be within the purview of Maryland Rule 728 and were not inadmissible for the reason urged. Barton v. State, 2 Md. App. 52.

THE LEGALITY OF THE ARREST

We need not decide if the arrest of the appellant was without sufficient probable cause as he contends. No “fruits” of the arrest were admitted in evidence against him and even' if the arrest were illegal, that does not, in and of itself, preclude a trial or vitiate a conviction. Hutchinson v. State, 1 Md. App. 362; Nadolski v. State, 1 Md. App. 304; Powell v. State, 1 Md. App. 495.

THE CONVICTION OF A CO-DEFENDANT

The appellant alleges that when called to trial in Baltimore City Goode pleaded guilty to murder in the second degree and that the plea was accepted by the trial court. He contends that, in view of this, he should not be convicted of murder in the first degree, especially since Goode was the one who pulled the trigger. The appellant cites no authority, and, we doubt the existence of any, to support this contention. If it had merit its logical extension would be that the acquittal of a co-defendant would require the acquittal of all other co-defendants. At best it would preclude the trier of facts from an independent determination of the case before it. We note that neither the fact of Goode’s conviction nor the testimony of the witnesses examined by the court upon Goode’s confession in order to determine the degree of murder as required by Code, Art. 27, § 412 were offered in evidence at the appellant’s trial. The contention for this reason alone has no merit on appeal. Johnson v. State, 2 Md. App. 235. But in any event we do not think that such evidence would be admissible at the guilt stage of the proceedings if proffered. The fact of the conviction or acquittal of one person charged with a crime is neither relevant nor material to the issue of the guilt or innocence of another person charged with the same crime as a co-perpetrator. Contrary to the position taken by the appellant, we feel that the admission of evidence of the conviction of a co-defendant at a prior trial would be prejudicial error.

THE APPLICABILITY OP MIRANDA

The first trial of the appellant was held on March 7, 1966 and March 8, 1966 resulting in a verdict of the jury on the murder indictment as hereinbefore set forth and convictions of robbery and attempted robbery with a deadly weapon. In affirming the judgments on the robbery offenses, we found the statement of the appellant properly admitted in evidence. We held that it had been freely and voluntarily given and that the standards enunciated in Miranda v. Arizona, 384 U. S. 436, decided June 13, 1966 were not applicable as Miranda is not retroactive. Boone v. State, 2 Md. App. 80, 93-97. Because of the defective verdict on the murder charge, the appellant was granted a new trial with respect to that offense on motion made by him. The retrial was subsequent to the decision in Miranda, and at that trial, the lower court held that the statement was inadmissible because Miranda was then applicable and its procedural safeguards had not been observed. The question whether the Miranda warning requirements, as the prerequisite for the admissibility of a statement, although otherwise freely and voluntarily made, are to be applied to retrials occurring after June 13, 1966 of cases that were originally tried on a valid indictment prior to that decision has not been determined by the Court of Appeals and is a matter of first impression before this Court.

We feel it neither logical nor reasonable that the case should be retried under a rule, not prevailing at the first trial, making the statement, which was admissible at the first trial, inadmissible on retrial. We think it not in the best interest of public justice for Miranda to be so applicable. Fundamental fairness flows both to the State and to a defendant, not only to one to the exclusion of the other. So feeling, it is necessary to determine whether we are precluded from holding Miranda to be inapplicable under the circumstances here before us, and the answer lies within the four corners of Johnson v. New Jersey, 384 U. S. 719. In Johnson, the Supreme Court, called upon to determine whether Miranda (and also Escobedo v. Illinois, 378 U. S. 478) should be applied retroactively, held that “* * * Miranda applies only to cases in which the trial began after the date of our decision * * June 13, 1966. p. 721. The holding was restated throughout the opinion. “All of the reasons set forth above for making Escobedo and Miranda nonretroactive suggest that those decisions should apply only to trials begun after the decisions were announced.” p. 732. “Prospective application only to trials begun after the standards were announced is particularly appropriate here.” p. 732. “In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced.” p. 733. “This we have done in Miranda (laid down additional guidelines), and these guidelines are therefore available only to persons whose trials had not begun'as of June 13, 1966.” p. 734. We cannot conclude that by using the word “commenced” once the Court intended a different significance than it intended when it used the words “began” or “begun.” “Begin” is defined in Webster’s Third New International Dictionary of the English Language, unabridged, 1968, as “to perform or execute the first part of an action, activity or procedure” and “commence”, given in explanation thereunder, as “show occurrence or performance of first steps or stages.” The definition, therefore, does not preclude, but rather supports, an inference that a case coming up for retrial on the granting of a motion or a reversal on appeal “began” at the first trial where the occurrence or performance of the first steps or stages was shown. We think that the language used does not compel us to close our eyes to the fact that the trial of the appellant actually began prior to Miranda and that, for the purposes here considered, the second trial for the same offense and on the same facts, as an incident to the granting of the motion because of the defective verdict, simply amounted to a continuance of the same case looking toward a final judgment of either acquittal or conviction. In context, we take “began,” “begun” and “commenced” in Johnson to refer only to those trials in which the defendant was first called to trial after the stated date.

We are inclined toward this view by the failure of the Court to “* * * find any persuasive reason to extend Escobedo and Miranda to cases tried before those decisions, even though the cases may be on direct appeal”, it being “* * * clear that there are no jurisprudential or constitutional obstacles to the rule * * *” adopted in Johnson, 384 U. S. at p. 733. As was said in State v. Vigliano, 232 A. 2d 129 (N. J. 1967), “If such reliance on previous law is sufficient reason not to apply Miranda to cases tried and still on direct appeal on June 13, 1966, it would seem that such reliance should have the same operative effect if the appeal results in a reversal and order for a new trail” or if a new trial is granted upon motion duly made. For the reviewing court not to consider the Miranda rules on appeal, but to have them suddenly become applicable on retrial after a reversal for reasons foreign to such rules, seems to us to be completely illogical. We think that the Supreme Court did not so intend. See State v. Vigliano, 232 A. 2d 129 (N. J. 1967). We believe that the language of the Court in discussing its holding is also significant. It said, 384 U. S. at p. 732:

"Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused. Prospective application only to trials begun after the standards were announced is particularly appropriate here. Authorities attempting to protect the privilege have not been apprised heretofore of the specific safeguards which are now obligatory.” (emphasis supplied)

We also find support for our view in the reasons of the Court for its holding. It listed three'factors influencing its decision : the purpose of the Miranda standards; reliance on preMiranda rules; and the effect on the administration of the criminal laws. It noted that, although the prime purpose of the Miranda rulings was “* * * to guarantee full effectuation of the privilege against self-incrimination * * * they encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion.” 384 U. S. at p. 729-730. Thus, in the absence of the Miranda safeguards, the accused “* * * may invoke a substantive test of voluntariness which, because of abusive practices, has becoming increasingly meticulous through the years.” So the integrity of the fact finding process is not as substantially improved by Miranda as it has been by other of its decisions. It found that law enforcement officers had been relying on preMiranda rules in obtaining confessions and that retroactive application would not have the justifiable effect of curing error committed in disregard of constitutional rulings already clearly foreshadowed. It felt that retroactive application of Miranda “* * * would seriously disrupt the administration of our criminal laws.” 384 U. S. at p. 731. In the light of those various considerations it concluded that Miranda should not be applied retroactively. The presence of a disrupting effect similar to that considered by the Supreme Court as well as the import of the other two criteria, reinforced by the language of the Court in stating its holding and the exclusion of cases in which direct appeals were pending at the time of the decision, leads us to conclude that we are not compelled by Johnson to apply Miranda to retrials such as the one before us. The pr^-Miranda rules, including those announced in Escobedo, were available to the appellant to protect the integrity of the fact finding process. Holding Miranda applicable to his retrial would effect no significant improvement therein and would be inconsistent with the apparent intention of the Supreme Court to give stability and uniformity to cases in which the trial began before the date of that decision. See People v. Worley, 227 N. E. 2d 746 (1967).

Other jurisdictions have considered the question with disparate results. The following cases held that the Miranda requirements do not apply in retrials: Jenkins v. State, 230 A. 2d 262 (Del.); People v. Worley, 227 N. E. 2d 746 (Ill.); State v. Vigliano, 232 A. 2d 129 (N. J.); Commonwealth v. Brady, Pa. D. & C. 2d (Crawfford Co., Pa.), 1 Cr. Law Rep. 2305 (17 July 1967). Contrary cases are: Gibson v. United States, 363 F. 2d 146 (5th Cir. 1966); State v. Brock, 101 Ariz. 168, 416 P. 2d 601; People v. Doherty, 429 P. 2d 177 (Cal.); State v. Ruiz, 421 P. 2d 305 (Hawaii); State v. McCarther, 416 P. 2d 290 (Kan.); Creech v. Commonwealth, 412 S. W. 2d 245 (Ky.); State v. Jackson, 155 S. E. 2d 236 (N. C.); State v. Shoffner, 143 N. W. 2d 458 (Wis.). It is noted that with the exception of People v. Doherty, supra, the cases holding that the Miranda requirements apply at retrials contain little, if any, discussion of the problem and we do not find them to be persuasive. People v. La Belle, 53 Misc. 2d 111, 277 N. Y. S. 2d 847 (Rensselaer County Ct.) held that Miranda did not apply to retrials but a majority of the New York Supreme Court Appellate Division, Third Department held to the contrary in People v. Sayers, 284 N. Y. S. 2d 481.

We find that the trial of the instant case began on March 7, 1966, prior to the decision in Miranda v. Arizona, supra. We feel, within the meaning of Johnson v. New Jersey, supra, that neither the fact of retrial upon grant of motion made by the appellant nor the fact of retrial upon reversal of judgment and remand by this Court on appeal by him, although both subsequent to the decision in Miranda, constitutes the case as one in which the trial began after June 13, 1966. Therefore, Miranda does not apply. The guidelines established by that decision were not available to the appellant at his original trial, were not available to him at the retrial had and will not be available to him at the retrial to be had.

Contentions of the appellant, properly before us, not herein disposed of, are not considered in view of our reversal of the judgment.

Various documents were submitted to this Court by the appellant in proper person entitled “Supplement to Brief,” “Amendment to Supplement” and “Additional Brief.” Although the Maryland Rules provide for the filing of a reply brief, Rule 1030 a 3, there is no provision for the filing of supplemental, additional or amended briefs. The contentions in the various documents submitted are not properly before us and we do not consider them.

Judgment reversed; case remanded for a new trial.

Thompson, J.,

dissenting:

Although I concur with the result of the majority decision I cannot agree that the standards of voluntariness required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 will not apply to a retrial of this case. The majority interprets Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882, which held that Miranda would not apply to cases brought to trial before June 13, 1966 to refer to original trials only and not to retrials.

In Johnson, the Supreme Court had several alternatives. It could, of course, have applied the classic doctrine of Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (on right to counsel) that a court’s decision is completely retroactive; or it could have applied the same rule it had applied in Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601, which held that Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (on Search & Seizure) was applicable to all cases in which a state court decision had not become final prior to announcement of Mapp; or it could have applied the rule it subsequently applied in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, which held that United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926 and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, (on line-ups) were applicable only to line-ups conducted after the announcement of Wade and Gilbert.

Instead of applying any of these rules Johnson adopted the middle ground, which permitted a prosecutor not to introduce confessions that had been procured in violation of Miranda rules, but at the same time did not disturb completed trials. It seems apparent that the Supreme Court did not adopt the Stovall rule because it regarded improper confessions as more serious than improper line-ups; and it did not adopt the Gideon rule because it regarded improper confessions less seriously than a trial without counsel.

All of the majority’s reasoning for adopting its rule on retrials is equally applicable to subsequent trials pursuant to indictments filed before June 13, 1966; yet, they do not go so far. I quite agree that they should not go so far because such a holding would be contrary to the express language of Johnson. I think that it is equally clear that Miranda applies to a retrial as well as an original trial after the magic date. The majority of the members of this court reject the views of the majority of the courts by stating, in curious language, that these cases “contain little, if any, discussion of the problem and we do not find them persuasive.” The majority of the courts are merely carrying out the directions laid down in Johnson; therefore, they feel that little discussion is necessary. Those applying the contrary doctrine do discuss it at length because they are trying to avoid the obvious.

If the majority could give, or if I could think of, one reason why Miranda should not apply to retrials which is not equally applicable to a trial under an indictment filed prior to June 13, 1966, I would agree with them. Since there is no such reason, I must dissent.

      . Although it does not appear from the evidence introduced in the instant case, Goode pleaded guilty to murder in the second degree before the second indictment was filed.

      . The case went to the jury on the robbery indictment on two counts—robbery and attempted robbery with a deadly weapon. The jury returned a general verdict of guilty and the appellant was sentenced to 18 years (subsequently reduced to 17 years). The judgment was affirmed by this Court. Boone v. State, 2 Md. App. 80.

      . On May 3, 1966, Kit was found guilty of murder in the first degree (without capital punishment) and robbery with a deadly weapon by a jury in the Criminal Court of Baltimore. He was sentenced to imprisonment for the term of his natural life in the .murder charge and for a term of 20 years on the robbery charge, the sentences to run consecutively. The judgments were affirmed by this Court. Kitt v. State, 2 Md. App. 306.

      . For cases in which the corroborative evidence tended to identify the defendant with the perpetrators of the crime see: Ferraro v. State, 200 Md. 274; Wright v. State, 219 Md. 643; Mulcahy v. State, 221 Md. 413; Forrester v. State, 224 Md. 337; Boggs v. State, 228 Md. 168; McKenzie v. State, 236 Md. 597; Barton v. State, 2 Md. App. 52; Kitt v. State, 2 Md. App. 306.
      For cases in which the corroborative evidence tended to show the defendant’s participation in the crime itself see: Polansky v. State, 205 Md. 362; Brown v. State, 210 Md, 301; Judy v. State, 218 Md. 168; DeHart v. State, 227 Md. 239; McDowell v. State, 231 Md. 205; Tucker v. State, 237 Md. 422; O’Connor v. State, 1 Md. App. 627; Bright v. State, 1 Md. App. 657; Wilson v. State, 2 Md. App. 210; Johnson v. State, 2 Md. App. 235.
      For cases in which the corroborative evidence tended both to identify the defendant with the perpetrators of the crime and to show his participation in the crime itself see: Nolan v. State, 213 Md. 298 (the corroborative evidence was sufficient but the judgment was reversed for other reasons); Novak v. State, 214 Md. 472; Booth v. State, 229 Md. 528.

      . The issue was posed in Cichos v. State, 385 U. S. 76, 87 S. Ct. 271 but the Supreme Court did not reach it, dismissing the writ of certiorari as improvidently granted. Rehearing was denied. 385 U. S. 1020. In State v. Adams, 196 Md. 341, 344 the Court of Appeals said that the prohibition of double jeopardy in the Fifth Amendment was not a requisite of due process under the Fourteenth Amendment.

      . Downum v. United States, 372 U. S. 734, a federal prosecution, decided one hundred years after Hoffman on comparable facts is contrary to the holding in Hoffman. The Court found that the defendant had been placed in jeopardy, the jury having been discharged after being selected and sworn because witnesses for the prosecution were absent, saying, p. 736:
      “At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest —when there is an imperious necessity to do so. [However] the discretion to discharge the jury before it has reached a verdict is to be exercised ‘only in very extraordinary and striking circumstances,’ [because] the prohibition of the Double Jeopardy Clause is ‘not against being twice punished, but against being twice put in jeopardy.’ ”
      We do not have before us and do not decide whether the fact situation presented in Hoffman would today afford an accused relief, for reasons other than double jeopardy, as, for example, under the due process clause of the Fourteenth Amendment.

        . In Gilpin the Court found that the accused was not put twice in jeopardy when he was tried and convicted of conspiracy to rob after being acquitted at a former trial of the robbery of the same person as the offenses were separate and distinct.

      . This thought was apparent in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 making rules concerning the conduct of line-ups, announced in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926 and Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, applicable only to line-ups conducted after the common date of the three decisions. The Court said:
      “We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable.” 87 S. Ct. at 1972.

      . See cases collected in the majority opinion.


source: Caselaw Access Project

author: Murphy, C. J.,

license: Public Domain

text:
    WILLIAM RANDOLPH FREY AND GEORGE EDWARD PEYTON v. STATE OF MARYLAND
    [No. 83,
    September Term, 1967.]

      Decided January 31, 1968.

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

      Claude A. Hanley for appellant Frey and Nelson W. Gatton for appellant Peyton.

      William E. Brannan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, L. Robert Evans, Deputy State’s Attorney for Baltimore County, and Charles E- Eoos, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellants, William Frey and George Peyton, together with a co-defendant, James Peyton, were jointly indicted under two separate indictments, charging (together with allied counts) (a) breaking the dwelling of Louis J. Barry on March 22, 1966 with intent to steal, and (b) breaking the storehouse of Everett Smith on April 7, 1966 with intent to steal. The court, sitting without a jury, (Maguire, J. in the Circuit Court for Baltimore County) convicted appellants of housebreaking under the Barry indictment, and storehousebreaking and grand larceny under the Smith indictment, and imposed sentences of five years on each count, to run concurrently. James Peyton was acquitted.

Appellants’ principal contentions on this appeal are that there was no probable cause for the issuance of the search warrant pursuant to which their apartments were searched, and that, in any event, the warrant was illegal as constituting a general one prohibited by both the State and Federal Constitutions.

The evidence showed that on May 12, 1966, Corporal Maddox of the Baltimore County Police Department applied to a judge of the Supreme Bench of Baltimore City for a search warrant, outlining in his application and affidavit therefor, in considerable detail, these facts: that the affiant (Maddox) had met with the same informant on three separate occasions— April 16, April 25, and May 9, 1966; that the informant told him that the appellants, and John Peyton, had stolen a safe from the Oak Grove Apartment rental office, and another safe from the Julius Requard rental office in Dundalk, abandoning both safes in a wooded area, the location of which the informant designated; that the informant’s information concerning the safe burglaries, together with the modus operands of the crimes, correctly corresponded with police records; that one of the stolen safes was not recovered until the very day that the informant told the police where it could be located; that the informant told police that a “torch set” had been stolen in the Requard burglary which appellant Frey had given to him; that the informant gave the torch set to the police, which police verified as that stolen from Requard; that the informant told police that the appellants, together with John Peyton and William Wingate, had broken into the Sterling T.V. Shop on April 22, 1966; that the police verified the occurrence of this crime, and learned that a 1958 Chevrolet, with Maine license plates, belonging to appellant Frey, was seen in close proximity to the burgled premises on the night of the crime, and that appellant Peyton, William Wingate, and John Peyton, were seen by police near the burgled premises at approximately the time the crime was committed; that the informant also stated that the appellants, together with John Peyton and William Wingate, had also broken into a home at a location which he generally described, and stolen therefrom a number of articles, some of which he designated, and with respect thereto, stated that the stereophonic record player stolen in that burglary could be found in appellant Peyton’s living room; that a portable television set so stolen was located in appellant Frey’s apartment; that a transistor radio stolen in said burglary could be located in the apartment of John Peyton, and that a camera stolen in the burglary could be found in Wingate’s apartment. The affidavit stated, in effect, that the police verified the fact that a burglary occurred in the general area described by the informant at the home of Louis Barry, and that articles were stolen therefrom of a description similar to that given by the informant.

The application for the search warrant recited that on the basis of the stated facts the affiant believed that the informant was reliable, and that articles stolen in the burglary of the Barry house “are presently located on the premises of 2008 East Pratt Street, and that the said premises has been kept, used and occupied by William Frey, William Wingate, George Peyton, and John Peyton * * On this information, the affiant requested a search and seizure warrant be issued authorizing him to “enter and search the said premises.”

The search warrant was issued on May 12, 1966. It recited that there was probable cause to believe that a misdemeanor was being committed “on the premises known as 2008 East Pratt Street, a two-story brick apartment house, * * * the said premises being an apartment house.” The affidavit of Maddox was included as a part of the search warrant. The warrant commanded the police, inter alia, “to enter and search the said premises” and “to seize all fruits and instrumentalities having to do with the larceny and receipt of the aforementioned stolen goods, believed by the affiant to be kept in Room #1 and Room #2 of 2008 East Pratt Street * *

On May 13, 1966, Corporal Maddox, together with an officer of the Police Department of Baltimore City, went to the apartment building at 2008 East Pratt Street to execute the search warrant. They first located appellant Frey’s apartment, it being apartment \ 1 in the basement of the building. They read the search warrant to him and thereafter searched his apartment, seizing numerous articles therefrom which had been stolen in the Barry burglary, as well as articles stolen at the time of the Smith storehousebreaking. The officers thereafter went to appellant Peyton’s apartment, it being on the first floor in the rear of the building and designated apartment #2. They read the warrant to Mrs. Peyton, and thereafter seized the stereo record player, stolen from the Barry residence and specifically described in the warrant, as well as other articles stolen at the time of that burglary, together with a number of other items stolen during the Smith storehousebreaking.

After searching the appellants’ apartments, Maddox “went into” the other two apartments in the building looking for appellant Peyton and Wingate, a right which he thought he had under the warrant. He was given an electric toaster by the second floor tenant, a relative of the appellant Peyton’s sister, who told him that the toaster had been obtained from appellant Frey. Neither the toaster nor any other evidence taken from other than the appellants’ apartments were introduced in evidence at the trial. Maddox testified that in searching for the stolen property, the only apartments he considered were those occupied by the appellants.

The building landlord testified that there were four apartments in the building; that his tenants were “very transient,” that they moved in and out, that a “whole gang” lived with appellant Peyton, including James Peyton and, while not clear from his testimony, possibly John Peyton. So interrelated were the inhabitants of the building that during the trial they were referred to as residing in “Peyton Place.”

Appellants’ contention that there was no probable cause for the issuance of the search warrant is seemingly predicated on the premise that the affidavit was defective since it was based on information provided by an unidentified informant. That an affidavit may be based on hearsay information provided by an unidentified informant, and need not reflect the direct personal observations of the officer, is settled beyond question. Aguilar v. Texas, 378 U. S. 108; Scott v. State, 1 Md. App. 481. The probable cause necessary for the issuance of a search warrant requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched. Salmon v. State, 2 Md. App. 513. It is thus essential that the magistrate to whom application is made for a search warrant be informed of some of the underlying circumstances from which the informer concluded that the crime was being or had been committed, and that, as here, the stolen goods could be found in a designated place; and, additionally, some of the underlying circumstances from which the officer concluded that the informer was credible or his information reliable. Aguilar v. Texas, supra; Scott v. State, supra. Thus, a general statement received from an unnamed informant, who is only alleged to be “considered reliable,” without any reason given as to the basis of that conclusion, would not constitute probable cause for the issuance of the search warrant. See Gatewood v. State, 244 Md. 609.

Tested by these standards, and bearing in mind that the presence or absence of probable cause to support the search warrant must be determined solely from the allegations of the application for the warrant, Henderson v. State, 243 Md. 342; Clayton v. State, 1 Md. App. 500, we think it too clear to require discussion that sufficient underlying circumstances were set forth in the affidavit to demonstrate that the police could properly conclude that the informer was reliable. While the affidavit does not recite any particulars to show the basis or the source of the informer’s knowledge of appellants’ involvement in the burglaries, and there is no indication in the affidavit that the informer had, in fact, seen the specified stolen goods in appellants’ apartments, or in the apartments of John Peyton or William Wingate (Cf. Rugendorf v. United States, 376 U. S. 528), we think, upon consideration of the entire affidavit that the informer’s intimate knowledge of the criminal operations of the appellants and their companions in the commission of the crimes specified, including the Barry burglary, verified in part by the police, was such as to implicitly constitute a sufficient showing of underlying circumstances from which the informer concluded that certain of the stolen goods could be found in the designated apartments. In concluding that the warrant was issued upon sufficient probable cause, we are mindful of the observations so forcefully made by the Supreme Court in United States v. Ventresca, 380 U. S. 102, viz., that the requirements of the Constitution are practical and not abstract, that search warrants must be tested and interpreted by magistrates and courts in “a commonsense and realistic fashion,” that the preference to be accorded a warrant indicates that in a doubtful or marginal case a search under a warrant may be sustainable, where without one it would fail and that “a grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting,” and finally that:

“'Phis is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. See Aguilar v. Texas, supra [378 U. S. 114, 12 L. Ed. 2d at 729]. Recital of some of the underlying circumstances in the affidavit is essential [as it is under the Maryland statute] if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra at 270 [of 362 U. S.].”

Nor do we find merit in appellants' contention that the search warrant was invalid as constituting a general warrant. A general warrant, broadly defined, is one which fails to sufficiently specify the place or person to be searched or the things to be seized, and is illegal since, in effect, it authorizes a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution, Article 26 of the Maryland Declaration of Rights, and Section 551 of Article 27 of the Maryland Code (1967 Repl. Vol.), all of which require that search warrants particularly describe the place to be searched and the things to be seized, so as to prevent the search of one place, or the seizure of one thing, under a warrant authorizing search of another place, or the seizure of another thing. See Stanford v. Texas, 379 U. S. 476; Salmon v. State, supra.

That the warrant here involved sufficiently specified the stolen articles thought to be located in the apartments of the appellants, John Peyton and William Wingate, is entirely clear. And we think that the command of the search warrant to enter and search the two-story brick building at 2008 East Pratt Street, “the said premises being an apartment house,” did not purport to authorize the search of the entire apartment house since the affidavit accompanying the warrant, and made a part thereof, particularly specified that the apartments to be searched were those occupied by the appellants Peyton, Frey, John Peyton and William Wingate. There is, of course, no formula which can be used to measure the particularity with which premises must be described in a search warrant, the adequacy of such description in every case necessarily depending on the facts and circumstances there present. Tucker v. State, 244 Md. 488, 496. A description of a place to be searched is ordinarily, sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. Steele v. United States, 267 U. S. 498; Saunders v. State, 199 Md. 568. In determining whether the description of the place to be searched meets these standards, it is permissible to look to the affidavit as well as the warrant since the affidavit is a part of the warrant and incorporated by reference therein. See Fry v. United States, 9 F. 2d 38 (9th Cir.); People v. DeLago, 266 N. Y. S. 2d 353; Ellison v. State, 212 S. W. 2d 387 (Tenn.); Varon, Searches, Seizures and Immunities, Vol. 1, p. 319.

Certainly, a designation in the affidavit of the apartments to be searched as those being occupied by the appellants, John Peyton and William Wingate, limited the “premises” to be searched to those occupied by these individuals and made clear that the entire building was not the subject of the warrant. So limited, the warrant sufficiently describes the places to be searched within constitutional and statutory requirements. See Kenney v. United States, 157 F. 2d 442 (App. D. C.); Commonwealth v. Lillis, 209 N. E. 2d 186 (Mass.); People v. Estrada, 44 Cal. Rptr. 165 (D. C., Calif.); People v. Johnson, 267 N. Y. S. 2d 301. Since it was the obvious intent and direction of the warrant to authorize a search of only the designated apartments, we decline to read it with “the precision of a pedantic grammarian,” People v. Johnson, supra, at page 303. We thus conclude that this is not a case where a search warrant is void for unqualifiedly directing the search of an entire apartment house where probable cause is shown only as to certain of the units therein. Such cases are collected in an annotation appearing in 11 A.R.R. 3d 1330, and, on the facts of this case, we deem them inapposite. See particularly, however, United States v. Hinton, 219 F. 2d 324 (7th Cir.), and compare Bland v. State, 197 Md. 546; Lucich v. State, 194 Md. 511, and Ferguson v. State, 236 Md. 148.

Appellants further contend that the court’s ruling in sustaining the State’s objections to certain questions asked of appellant Peyton on direct examination by his counsel was incorrect and constituted prejudicial error. Appellant Peyton testified that he had been away in Maine and that upon his return, he found certain property in his apartment. He was then asked to testify as to what he was told concerning the circumstances under which this property found its way into his apartment. Upon objection by the State, Judge Maguire ruled, we think correctly, that the proffered testimony constituted an inadmissible hearsay declaration.

Hearsay evidence is defined as “testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCormick, Evidence (1 Ed. 1954) § 225, p. 460. Defense counsel here attempted to elicit from appellant Peyton a statement that either his uncle or his wife had told him that the stolen property had been brought to the apartment by Peyton’s uncle. We think that such testimony would have been clearly objectionable as hearsay, being an attempt to establish that the uncle had in fact brought the property there, a matter concerning which the witness had no first-hand knowledge. Had the appellants wished to established this proposition properly, they could have produced a witness with the requisite knowledge. This they failed to do. We see no error in the court’s ruling'.

Appellant Frey maintains in addition that the evidence against him was insufficient in law to support the verdict. We find no merit in this contention. It is well established that the unexplained and exclusive possession of recently stolen goods permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief. Anglin v. State, 244 Md. 652, 656. This presumption has been applied in a conviction of burglary, Anglin v. State, 1 Md. App. 85, as well as in a conviction for grand larceny, Gamble v. State, 2 Md. App. 271. The term “recent,” when used in connection with recently stolen goods, is a relative term, and its meaning as applied to a given case will vary with the circumstances of the case. Gamble v. State, supra. In Anglin v. State, 1 Md. App. 85, the time was over six months. We find that the unexplained presence of stolen property in Frey’s apartment some five to six weeks after its theft constituted sufficient evidence under the circumstances of this case to support his conviction as to the housebreaking count in the Barry indictment and the storehouse-breaking and grand larceny counts in the Smith indictment.

In a reply brief, appellant Frey contended for the first time that the affidavit and application for the search warrant showed on their face that Corporal Maddox was a police officer of Baltimore County, and that the action of a judge of the Supreme Bench of Baltimore City, in issuing a search warrant to him for execution in Baltimore City was beyond the judge’s jurisdiction and beyond Corporal Maddox’s power to execute; and that it was a violation of due process of law and the rights guaranteed to appellant by power of the State and Federal Constitutions. Not having been raised or decided below, this contention is not properly before us. Pressley v. State, 244 Md. 664; Sherrod v. State, 1 Md. App. 433. Moreover, the question was not raised in appellant’s brief and cannot ordinarily be raised for the first time in a reply brief. See Rule 1031 and Baxter v. State, 223 Md. 495. Under these circumstances, the contention is not properly before us for review.

Judgments affirmed.

      . The police did not recover the portable television set which the informant stated would be found in appellant Frey’s apartment, and none of the articles stolen from the Smith storehousebreaking were described in the search warrant. The fact that the articles seized were not among those listed in the search warrant does not, of course, vitiate the warrant. While the general rule is that property other than that for which a search is being made under the authority of a search warrant cannot be seized where it does not come within the description of the warrant, Brooks v. State, 335 Md. 23, an exception to that rule exists where officers lawfully on the premises discover other property which they have reasonable cause to believe has been stolen. See Anglin v. State, 1 Md. App. 85. We think the exception to the rule is applicable under the facts of this case and appellants make no contention to the contrary.

      . That the officers, in executing the warrant, went into the second and third floor apartments in search of appellant Peyton and Wingate does not invalidate the warrant or constitute it a general one. It is clear from the testimony that the officer was not undertaking to search these units, but rather was looking for these individuals, presumably to make an arrest. In any event, in determining the validity of the warrant, we do not consider events transpiring during or after its execution, except perhaps as they color the officers’ understanding of the import of the commands expressed in the warrant.


author: Per Curiam.

text:
    DANIEL W. CARROLL, JR. v. STATE OF MARYLAND
    [No. 136,
    September Term, 1967.]

      Decided January 31, 1968.

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

      Michael Lee Kaplan 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 B. Dudley, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

Appellant, Daniel W. Carroll, Jr., complains of his convictions of robbery with a deadly weapon, assault with intent to murder and carrying a deadly weapon by a jury in the Criminal Court of Baltimore, Judge J. Harold Grady, presiding. Appellant was sentenced to twenty years, fifteen years, and two years, respectively, on the above convictions, all sentences to run concurrently.

On appeal, the appellant raises two contentions:

1. That the evidence was insufficient to sustain the conviction.
2. That the lower court committed reversible error in allowing the testimony of Mrs. Hilda Wyatt to be heard by the jury.

On December 16, 1965, at approximately 9:15 p.m.. Miss Flora Startt, a Librarian at the Enoch Pratt Library, was returning home from work when, after posting a card at the corner mailbox, she was seized by the neck and choked. The ensuing struggle culminated in her being pushed to the ground and having a gun pressed into her right side and discharged. The resultant wound in her lower abdomen was very serious and in addition to which she sustained bruises of the neck, legs and ankles. Her attacker was in front of her for “probably a few minutes.” At the conclusion of this vicious attack, her purse was stolen and the culprit fled.

Miss Startt’s description of her assailant was a Negro male, hatless, wearing a brown army-type jacket, dark trousers, and with a thin face, closely cropped hair, about five feet six inches or shorter and probably between twenty-three and thirty years of age. At the trial, Miss Startt identified the appellant as being her assailant.

Miss Elizabeth Wayenick heard the noise of the scuffle but saw no one other than Miss Startt when she reached the scene.

Officer Robert Novak of the Baltimore City Police Department received a call at approximately 9:30 p.m. on the same evening, whereupon he and Officer Becroft began cruising the area. After a time lapse of about one minute, Officer Novak from the description furnished him observed appellant in a car, followed same and pulled it to the curb. After identifying appellant, who was wearing a dirty army-type jacket, dark pants, and no hat, and who was in an acúte stage of nervous agitation, Officer Novak arrested him.

Mrs. Hilda Wyatt, the mother of a friend of the appellant, testified tliat having.seen appellant on the night of the commission of the crime, when he was brought to her home by police and had a discussion with her son, and her observation of him at the trial, that it was her opinion that, at the trial, the appellant appeared to weigh more and was “bigger all over.”

In trial before a jury, this Court can review the sufficiency of the evidence, but this Court does not inquire into and measure the weight of the evidence, but only determines whether there is any relevant evidence which could properly sustain a conviction. Culver v. State, 1 Md. App. 406, 230 A. 2d 361 (1967); Quinn v. State, 1 Md. App. 373, 230 A. 2d 368 (1967); Borman v. State, 1 Md. App. 276, 229 A. 2d 440 (1967); Graef v. State, 1 Md. App. 161, 228 A. 2d 480 (1967).

From the evidence adduced at trial, the trier of facts properly found that Miss Startt had been robbed and shot and that the person responsible for the crime did have a deadly weapon. Therefore, the matter for resolution was the identification of the guilty party. This element was sufficiently satisfied by the positive identification of the appellant, at the trial, by the victim, Flora Startt.

It is well settled that identification by the victim, if believed by the trier of facts, is ample evidence to sustain a conviction. Walters v. State, 242 Md. 235, 237, 218 A. 2d 678 (1966); Hutchinson v. State, 1 Md. App. 362, 367, 230 A. 2d 352 (1967); Crumb v. State, 1 Md. App. 98, 103, 227 A. 2d 369 (1967). The initial equivocation by the victim when identifying the appellant in a picture, out of court, clearly attaches to the weight of the evidence and not to its admissibility and remains a matter for the determination of the trial court. Logan v. State, 1 Md. App. 213, 228 A. 2d 837 (1967). The weight of the evidence and the credibility of the witnesses as well as the sufficiency of the identification of the accused are matters primarily for the trial court as the trier of facts to determine. Hursey v. State, 233 Md. 243, 244, 196 A. 2d 472 (1964). See Booth v. State, 225 Md. 71, 169 A. 2d 388 (1961); Daniels v. State, 213 Md. 90, 131 A. 2d 267 (1957).

We find that there was legally sufficient evidence from which the jury could be fairly convinced beyond a reasonable doubt of the appellant’s guilt.

The second contention is also without merit. In Avey v. State, 1 Md. App. 178, 228 A. 2d 614 (1967), this Court cited Cook v. State, 225 Md. 603, 610, 171 A. 3d 460, cert. den. 368 U. S. 970, 82 S. Ct. 445, 7 L. Ed. 2d 398 (1961) wherein the Court of Appeals of Maryland said:

“This Court has stated that the trial court is in an advantageous position to judge the question of prejudice and its decision with reference thereto should not be reversed unless it is clear that there was prejudice.”

See Lusby v. State, 217 Md. 191, 195, 196, 141 A. 2d 893 (1958).

The lower court did not view the testimony of Mrs. Hilda Wyatt concerning changes in the appellant’s weight and general appearance as prejudicial, nor do we. We find that this testimony possessed substantial probative value bearing upon the issue of identity and was not prejudicial to the defendant.

Judgment affirmed.


author: Morton, J.,

text:
    WAYNE MUSGROVE v. STATE OF MARYLAND
    [No. 279,
    Initial Term, 1967.]

      Decided February 1, 1968.

      The cause was argued before Anderson, Morton, Orth, and Thompson, JJ., and Evans, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.

      Stanley M. Diets for appellant.

      Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Linthicum, Jr., State’s Attorney for Montgomery County, and James Tome's, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant, Wayne Musgrove, was convicted of daytime housebreaking and grand larceny by a jury in the Circuit Court for Montgomery County. Judge James H. Pugh, the presiding judge, thereupon imposed a general sentence of ten years in the Maryland Penitentiary.

It appears that the apartment of Julius Kristal was entered illegally during the daytime. When called by the State, Mr. Kristal testified that he left his apartment on the morning of November 19, 1965, and upon his return at approximately 5 :30 P.M. that day, he found the apartment “in a shambles.” Mr. Kristal testified that cash in excess of $100 was missing from the apartment and that his jewelry case had been opened and certain items of jewelry were missing therefrom. When asked about the condition of the entrance door, Mr. Kristal stated, “I wouldn’t know, I didn’t look at it, not anticipating anything.” He also testified that keys to the apartment were possessed by himself, his wife, his nineteen year old son, and the resident manager. He indicated that on the day in question an engineer had been in his apartment for the purpose of making repairs. Neither Mrs. Kristal nor the Kristal’s son were called as witnesses.

The Appellant contends, arid the State concedes, that there was no evidence presented which would establish a breaking into the apartment as required by Md. Code, Art. 27, Sec. 30 (1967 Repl. Vol.), the statute under which Musgrove was indicted. We agree, and accordingly, the judgment of conviction for daytime housebreaking will be reversed.

The only evidence connecting the Appellant with the crime of larceny was his fingerprint which was found upon Mr. Kristal’s jewelry case and he contends that this evidence was insufficient to sustain his conviction.

It is a sound principle of law that proof of fingerprints corresponding to those of the accused, found in the place where a crime was committed, under such circumstances that they could only have been impressed at the time the crime was committed, may be sufficient proof of identity to sustain a conviction. Wharton, Crim. Ev., Vol. 3, Sec. 982, p. 480; Underhill, Crim. Ev., Vol. 1, Sec. 142, p. 269. In McNeil v. State, 227 Md. 298, the Court of Appeals dealt with a set of facts not dissimilar from those presented in the instant case. The record there indicated that a tavern had been closed for business and locked up on February 7, 1961. The proprietor had visited the tavern on February 28, 1961, and found everything in order. When he again visited the tavern on March 4, 1961, he found that a cellar window had been broken out, that his safe had been severely damaged and that various machines had been broken into and various items had been taken from the premises. A police officer testified that he found a partially empty beer bottle beside the safe, from which bottle he had obtained a fingerprint. An expert testified that the fingerprint was that of the accused, and that it had been left on the bottle not more than eighteen hours prior to March 4, 1961. The proprietor testified that the bottle was not there upon his previous visit. The Court of Appeals held that the evidence was sufficient to support the inference of guilt drawn by the trial court, sitting without a jury. The Court stated at page 300:

“It is generally recognized that fingerprint evidence found at the scene of the crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime.”

In the instant case we have only the Appellant’s fingerprint on the jewelry case, with no reference to the period of time within which it had been placed there; and a statement by Mr. Kristal that he did not know the Appellant, had never seen him before and did not authorize him to go into his apartment on November 19, 1965. It should be noted that by his own testimony, Mr. Kristal admitted that he was not the only person in possession of a key to the apartment. Certainly his wife and son, whose failure to testify was conspicuous, had every right to authorize another person to enter the apartment. Moreover, it was conceded that the apartment had been occupied by a repairman during a part of the day the crime occurred.

It is true that fingerprints of an accused found in a home or apartment ordinarily would require different and perhaps less proof by the State to explain their presence than fingerprints of an accused found in premises open to the public. Nevertheless, we cannot find that the fingerprint evidence found at the scene of the crime in this case was sufficiently coupled with evidence of other circumstances reasonably tending to exclude the hypothesis that the print was impressed at a time other than that of the crime. Accordingly, the judgment will be reversed, and the case remanded for a new trial.

The Appellant also contends that the taking of his fingerprints by the police for comparison purposes was unlawful. It appears that the Appellant voluntarily surrendered to the police upon learning that there was a warrant for his arrest. He was then released on bail and advised to appear several days later for a preliminary hearing. When he appeared for the preliminary hearing his request for a postponement to enable him to retain counsel was granted. As he was leaving the Courtroom he was told by a police officer to accompany him to police headquarters for the purpose of taking his fingerprints. The Appellant contends that this constituted an illegal arrest and the fingerprints thus taken were inadmissible.

This contention is not properly before us because the only evidence of what took place is a statement by counsel for the Appellant at a bench conference out of the presence of the jury. The police were not questioned as to the manner in which the Appellant’s fingerprints were taken and the Appellant did not take the stand. But even if it should appear on retrial that the facts, properly adduced, are as stated by counsel at the bench conference, we see nothing improper in the obtention of the Appellant’s fingerprints in the manner alleged, or their introduction into evidence. There is no constitutional proscription against compelling an accused to submit to fingerprinting, Schmerber v. California, 384 U. S. 757, at p. 764; United States v. Wade, 388 U. S. 218; and since the Appellant was at large on bail, we see nothing improper in the alleged procedure followed by the police in obtaining the accused’s fingerprints.

Judgment reversed and case remanded for a new trial.


author: Anderson, J.,

text:
    JAMES EVERETT WILLIAMS v. STATE OF MARYLAND
    [No. 81,
    September Term, 1967.]

      Decided February 1, 1968.

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

      Benjamin L. Brown for appellant.

      Richard M. Pollitt, Special Attorney, with whom were Francis B. Burch, Attorney General, Charles U. Moylan, Jr., State’s Attorney for Baltimore City, and Robert Sapero, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Anderson, J.,

delivered the opinion of the Court.

Appellant, James Everett Williams, was convicted in the Criminal Court of Baltimore by the court, sitting without a jury, of malicious destruction of property and larceny of goods over the value of one hundred dollars. He received concurrent sentences of one year and eight years in the Maryland House of Correction.

The sole contention raised on this appeal is that the evidence was not sufficient to sustain the conviction.

On October 22, 1966, at approximately 10:00 a.m., Jack Brown, a partner in the Bonded Loan Company, 4 N. Eutaw Street, Baltimore, Maryland, and his friend Sidney Newburg observed, from inside the shop, the breaking of the display window and a person, later identified as John Smith, Jr., reach in the window and take therefrom a tray of rings. Mr. Brown and his friend pursued Smith. During the chase, about a block and one half from the shop, Brown and Newburg observed that the appellant was also running in front of Smith. The police joined in the pursuit and apprehended Smith and the appellant. Throughout the pursuit, appellant remained in front of Smith. Neither was observed carrying anything, nor was there direct physical contact between them while in flight. When apprehended, appellant and Smith were not together. Appellant was never observed by anyone at the scene of the crime when the display window was broken.

At the trial the appellant took the stand but Smith did not. Appellant’s testimony set forth a denial of participation in or knowledge of the offense. He stated that he was an escapee from the Maryland House of Correction and was seeking assistance from an attorney. He testified he was returning from a visit to that attorney’s office when he observed Smith in flight and that he then began running for fear of being apprehended as an escapee. Nothing was found on the appellant when apprehended which would connect him with the offense, nor was there evidence to establish a connection or relation between Smith and the appellant.

Our juridical history has long reflected the basic premise that “[ejveryone accused of crime is presumed to be innocent; and, in order to justify a finding of guilt, it is incumbent upon the State affirmatively to establish the defendant’s guilt beyond a reasonable doubt.” Johnson v. State, 227 Md. 159, 163, 175 A. 2d 580 (1961). The rule regarding the sufficiency of the evidence was noted in Spencer v. State, 1 Md. App. 264, 267, 229 A. 2d 151 (1967) quoting Vincent v. State, 220 Md. 232, 151 A. 2d 898 (1959):

“In every criminal case, evidence, to meet the test of legal sufficiency, must show directly, or support a rational inference of, the facts required to be proved; and the facts must be established, or the inference supported, beyond a reasonable doubt or to a moral certainty, or a reasonable doubt of an opposite fact must be created.”

Flight from the scene of a crime is a factor that may be considered in determining guilt. Davis v. State, 237 Md. 97, 105, 205 A. 2d 254 (1964); Tasco v. State, 223 Md. 503, 509, 165 A. 2d 456, cert. denied, 365 U. S. 885, 81 S. Ct. 1036, 6 L. Ed. 2d 195 (1960); Clay v. State, 211 Md. 577, 585, 128 A. 2d 634 (1957).

“Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. * * * It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” (Emphasis supplied). Wigmore, Evidence § 276 (3d ed. 1940); Davis v. State, supra, 105.

The State urges that the instant case is governed by Tasco v. State, supra. We agree. However, the facts in the instant case dictate an opposite holding from that urged by the State. In Tasco, the Court of Appeals, speaking through Judge Prescott, stated at page 509, “* * * it is elementary that the mere presence of a person at the scene of a crime is not, of itself, sufficient to establish that that person was either a principal or accessory to the crime. Watson v. State, 208 Md. 210, 117 A. 2d 549; Judy v. State, 218 Md. 168, 146 A. 2d 29. But presence at the immediate and exact spot where a crime is in the process of being committed is a very important factor to be considered in determining guilt.” (Emphasis supplied.)

Applying the above principles of law to the instant case, we find that the appellant, concededly, was observed in flight and apprehended at the cessation of same, but this, alone, will not suffice to sustain a conviction. There was no legally sufficient evidence that the appellant participated in the crimes charged. The record before us fails to establish the presence of the appellant at the immediate vicinity where the crime was committed. We do not find that flight from the general vicinity of the crime, standing alone, is adequate to establish the presence at the scene necessary to sustain the finding of the lower court. Furthermore, appellant had good reason to flee. As we stated in Spencer v. State, 1 Md. App. 264, 268-269, 229 A. 2d 151 (1967), citing Estep v. State, 199 Md. 308, 314, 86 A. 2d 470 (1952):

“The conjectures of the trial judge might be entirely correct. But no matter how suspicious the circumstances, a conviction without proof cannot be sustained under the laws of this State. A person is innocent until he is proved guilty, and there must be evidence which leads to such a result.”

Since, however, the sole reason for reversal is the insufficiency of evidence, and this may be supplied by the State, we will therefore remand the case for a new trial. Estep v. State, supra; Wright v. State, 198 Md. 163, 81 A. 2d 602 (1951); Spencer v. State, supra.

Judgments reversed and remanded for a new trial.