text:
    JOHN PRESTON POFF v. STATE OF MARYLAND
    [No. 166,
    September Term, 1967.]

      Decided February 29, 1968.

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

      James C. Chapin for appellant.

      Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Benjamin R. Woiman, Assistant State's Attorney for Prince George’s County, on the brief, for appellee.
   Per Curiam.

John Preston Poff appeals from his convictions by a jury in the Circuit Court for Prince George’s County of breaking a dwelling house with intent to steal and grand larceny and the concurrent sentences of four years on each conviction. He complains that the lower court improperly denied the admission of certain testimony and that the evidence was not sufficient to sustain the convictions.

The appellant first contends that the refusal of the lower court “* * * to admit testimony of an impeaching witness as to the reputation of a witness for the State * * * was prejudicial error.” He proffered, out of the presence of the jury, the testimony of Raymond Rudolph Mileski, who was indicted with him, to impeach the prosecuting witness. The proffered testimony was that the prosecuting witness was a “fence”—a receiver of stolen goods. “The long settled practice, both in England and in this State * * *, requires that the witness called to prove character, either good or bad, should be interrogated as to his means of knowledge of the general reputation of the person in question among his neighbors, and, what that reputation is.” Sloan v. Edwards, 61 Md. 89, 103. The inquiry must be as to his reputation for truth and veracity. Hoffman v. State, 93 Md. 388, 389. The examination must be confined to general reputation, and not be permitted as to particular facts. Richardson v. State, 103 Md. 112, 118; Rau v. State, 133 Md. 613, 616. Compare Comi v. State, 202 Md. 472. “The regular mode of examining into the character of the person in question, is to ask the witness whether he knows his general reputation (for truth and veracity) among his neighbors,—what that reputation is,—and whether, from such knowledge, he would believe him upon his oath.” Sloan v. Edwards, supra, at 103. In the instant case Mileski did not know the prosecuting witness, did not know others who knew him and had only heard his name mentioned several times by people Mileski did not know. “I can’t even recall the time or the place, but I was familiar somewhat with his name. * * * I never had any personal dealings with him.” We think it clear that the proffered testimony was not properly admissible. Not only did Mileski not know the general reputation of the prosecuting witness for truth and veracity among his neighbors, but the inquiry here proposed had no reference to the general reputation of the witness for truth and veracity. It by no means follows that a reputation for being a “fence,” even if shown, and here it was not shown, necessarily includes a bad reputation for veracity. The lower court did not err in refusing to admit the testimony.

The appellant also proffered the testimony of Mileski to the effect that Mileski did not commit the crime for which he and the appellant were indicted. We think such testimony was in no way relevant to the guilt or innocence of the appellant. The appellant concedes that he is unable to cite any authority “directly on the question of the relevancy” of such testimony. We know of no authority holding it to be relevant and doubt the existence of any. The appellant urges that, by analogy, Md. Code, (1965 Repl. Vol.), Art. 35, § 4, as interpreted in Kinnard v. State, 183 Md. 377, permits the testimony proffered. The statute provides that the person charged, at his own request, shall be deemed a competent witness. Kinnard held that one co-defendant is competent to testify against another co-defendant, on trial together, under a joint indictment, even over the objection of the defendant against whom the testimony is proffered. 183 Md. at 383. Neither the statute nor the case are apposite here, where Mileski’s testimony would be that he, Mile-ski, although indicted, was innocent of the crime. See Boone v. State, 3 Md. App. 11. We note that at the request of the appellant the docket entries were admitted in evidence, and that the docket entries showed that the case against Mileski had been stetted. We find no error in the refusal of the lower court to admit the testimony.

With regard to the sufficiency of the evidence, the contention goes to the identification of the appellant, the appellant urging that the testimony of “the only eyewitness to the alleged crimes was insufficient to support a verdict of guilty.” He concedes that the rule in this State is that the identification of a single eyewitness, if believed, is sufficient to support a conviction. Turner v. State, 242 Md. 408; Crumb v. State, 1 Md. App. 98. He argues, however, that the testimony of the eyewitness, Alfonzo Williams, in the instant case was so contradictory as to have no probative force. Kucharczyk v. State, 235 Md. 334. The weight of the evidence and the credibility of the witnesses are a matter for the trier of facts, Hutchinson v. State, 1 Md. App. 362; Scott v. State, 1 Md. App. 481, and we do not agree that Williams’ testimony was so inconsistent that it should not have been accepted. Bell v. State, 2 Md. App. 471. Williams, a youth 15 years of age, stated that on the day the victim’s apartment was broken into, he had been working outside the building on the lawn. He knew the location of the victim’s apartment and he was in the hall of the building when he saw three men leave the apartment “carrying stuff with them.” Each of them was carrying something. He identified, the appellant as one of them. He saw them get in a station wagon in the parking lot and drive off. He said that he saw the men “close-up,” that he knew the number of the apartment and that he could see the station wagon in the parking lot. The fact that, on direct examination, he gave the time he saw the men as “about three, something like that. I was getting ready to get off from work,” and on cross examination said the time was “two or something like that,” that on being questioned about the length of the appellant’s hair on the day of the crime, he said, “I am not sure, but I think it was” a little bit longer than at the time of the trial, although the wife of the appellant and another witness for the defense testified that it was shorter at the time of the crime than at the time of the trial, and that there was an alleged inconsistency in his identification of another participant in the crime do not, taking the testimony of the witness as a whole, make his testimony so contradictory that it had no probative force. So finding, we cannot say that there was no legally sufficient evidence or inferences drawable therefrom on which the jury could find the appellant guilty beyond a reasonable doubt and we shall not overturn the judgments.

Judgments affirmed.

      . It is clear that the appellant was attempting to show the alleged bad character of the prosecuting witness and that the-proffer was not directed toward impeachment by contradictory proof, by proof of former inconsistent statements or by proof tending to show bias or interest. See Hochheimer, Laws of Crimes and Criminal Procedures, 1st Ed., § 222, p. 206; Sanders v. State, 1 Md.App. 630.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROOSEVELT SESSOMS v. STATE OF MARYLAND
    [No. 176,
    September Term, 1967.]

      Decided February 29, 1968.

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

      Harry Sadoff for appellant.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William É. Yates, II, State’s Attorney for Dorchester County, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty generally of storehouse breaking with intent to steal goods of the value of $100 and upwards and related counts by a jury in the Circuit Court for Dorchester County. He was given a general sentence of imprisonment for a term of 8 years.

On appeal he contends that the search warrant was invalid because probable cause was not shown in the application for its issuance. The basis of the contention is that the facts set forth in the application were on information from an informant and thus hearsay. We believe that the contention is fully answered in Scott v. State, 1 Md. App. 481 in which we reviewed the effect of the 1958 amendment of Md. Code (1967 Repl. Vol.), Art. 27, § 551 and the purport of judicial decisions in this State relating to the matter. We found that the rule of law in this State is not more stringent and demanding than the rule announced by the Supreme Court in search warrant cases. See Jones v. United States, 362 U. S. 257; United States v. Ventresca, 380 U. S. 102. We concluded that the rule in this State authorizes “* * * hearsay information from a reliable source to be utilized in the determination of 'probable cause’ if the issuing court is informed of some underlying circumstances within personal knowledge of the affiant reasonably justifying a belief in the reliability of the information received from a known informant.” 1 Md. App. at 490.

The application for the warrant in the instant case set forth that the affiant, an officer of the City of Cambridge Police Department, was advised by the Department that the crime of grand larceny had been committed; that an informant advised him that a revolver and a double edged knife with rubber case, answering the description of two of the articles stolen, were located “the third floor left rear room (facing the front of said building) of a three story dwelling house situated at 505 Cedar Street, Cambridge, Dorchester County, Maryland” occupied by Roosevelt Sessoms; and that the affiant had been a police officer for approximately three and one-half years. The application further stated:

“That the informant is unknown to your affiant, but that your affiant was advised by the following persons that the informant was a reliable person whose word could be relied upon:
(a) David F. Schroeder, a merchant, who has known the informant for a period of three years.
(b) John W. Gordy, Jr., Personnel Manager for the informant’s employer, who has known the informant for a period of two years.
(c) John Meredith, the informant’s landlord, who has known the informant for a period of two years.”

The affiant averred on the basis of these facts and circumstances that “there is probable cause to believe, and he does believe, that the aforesaid room occupied by Roosevelt Sessoms contains evidence concerning said grand larceny” and prayed for the issuance of a Search and Seizure Warrant. We think that the hearsay information set forth in the warrant was shown to be from a reliable source, and as other underlying circumstances stated in the application, within personal knowledge of the affiant, reasonably justified a belief in the reliability of the information received from the informant, the hearsay information could be properly utilized in the determination of probable cause. Utilizing this information, probable cause was shown for the issuance of the warrant.

The appellant attempts to distinguish Scott by urging that “* * * much more information, especially personal knowledge of the Sheriff (the affiant) was presented in the application for the search warrant” in Scott than in the instant case. Even assuming this to be correct, we have found the application here sufficient to show probable cause and that the application in Scott may have contained more information is not material. He also argues that the victim should have made an affidavit “as to the crime committed against him in detail” as part of the application. He cites no authority for this proposition and we deem it to be without merit. We think it apparent from the application that the affiant had reasonable cause to believe a felony had been committed.

The appellant also attacks the warrant on the ground that in the affiant’s testimony at the trial, he said that the informant told him that “she had seen certain weapons in the appellant’s apartment” but when the informant testified, she said that “the only knowledge she had about any weapons was what she had overheard in a conversation.” While such inconsistency may go to the credibility of the witnesses, a matter to be considered by the trier of facts, it is not relevant to the issue of probable cause for the issuance of the search warrant. It has been firmly established in this State that “the court’s consideration of the showing of probable cause should be confined solely to the affidavit itself.” Smith v. State, 191 Md. 329, cert. den. 336 U. S. 925. In Scarborough v. State, 3 Md. App. 208, we said that evidence outside the affidavit, no matter by whom produced or how, is not relevant to the inquiry of probable cause.

The remaining contention of the appellant is that the validity of the search of his premises and seizure of the evidence cannot be on the ground that he consented to it. We need not reach this contention as we have held that the search warrant was valid. In any event, however, we think that the appellant did consent to the search. After the search warrant was issued, but before it was executed, the appellant was “brought to (police) headquarters.” A police officer testified that “he was asked could his premises be searched. He was advised why he was here at headquarters and asked could his room or where he lived be searched and he consented. Before the warrant was read to him, he consented to us that we had the right to search his room. * * * [H]e said, ‘You do not need a search warrant. I will take you there myself and let you search my room.’ ” The search warrant was then read to him and he was asked if he understood what had been read. He said, “Yes, I understand you but you don’t have to have this. I will take you there myself.” “And again he consented that we could go to his room and search it.” The police and the appellant went to his room described in the warrant. The appellant “* * * took his keys out and unlocked the door. He went in before us and the other officers came in behind Mr. Sessoms. And we begun our search.” The appellant does not contend that his consent was not voluntarily made but argues that the State “abandoned” the consent when the search warrant was read to him. He now alleges that his premises were searched pursuant to the warrant. But the appellant consented to the search both before and after the warrant was read to him and such consent was consistent with his defense at the trial—that anyone could get in his room with a skeleton key, “the key that you buys in the five and ten cent stores * * * two for nineteen cents,” and that he did not know that the articles seized were in his room. The appellant cites no authority, and we know of none holding that when the State has obtained a search warrant, be it valid or invalid, it must rely exclusively on the warrant, and thus there cannot be a valid search by consent under such circumstances. We think that upon legally sufficient evidence that consent was voluntarily given, a search would be valid even though a search warrant had been issued.

We hold that the trial court did not err in admitting the evidence of which the appellant complains.

Judgment affirmed.


author: Orth, J.,

text:
    DORIS HELENE HOTT v. STATE OF MARYLAND
    [No. 220,
    September Term, 1967.]

      Decided February 29, 1968.

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

      William L. Wilson, with whom was Edward J. Ryan on the brief, for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald W. Mason, State’s Attorney for Allegany County, and J. Frederick Sharer, Deputy State’s Attorney for Allegany County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Doris Helene Wilson married Howard Vernon Hott on August 22, 1952 when she was 19 years of age. Four children were born of the marriage, the oldest, as of May 1966, being 12 years of age and the youngest 5 years of age. For the first four years of the marriage all went well, but the marriage relationship from that time on was marked by frequent beatings by the husband of his wife. Although the husband drank excessively, the beatings appeared to be the result of his violent temper rather than alcohol. He beat her up and blackened her eyes “many a times,” gave her a “bloody nose, bloody mouth,” broke her teeth, making it necessary for her to get a dental plate, hit her in the ear causing a hearing defect, broke her eyeglasses about five or six times—“that is what he would hit for first because I can’t see without my glasses”—kicked her in the stomach, pulled her hair, knocked her down, beat her with his fist and whipped her with a belt. He would beat her up because “that is just the way he was. He just had a bad temper and would beat me up just for little things I did around the house or for mistakes I made.” He destroyed the household effects while in his angry moods and in 1965 she bought five sets of new dishes because he broke “all the others that I had.” He called her a whore and cursed her in the presence of the children and taunted her as being only half a woman after she had a hysterectomy. He beat the children on occasions and compelled them to watch while he beat her. She called the police on only one occasion in January 1966, because he told her that if she ever reported the beatings he would kill her and the children. She also did not want him arrested because she thought “it might make him lose his job at the mill or something like that.” He was a good provider, giving her all but about $15 of his weekly check of between $50 and $100.

About October 1965 Howard Hott became ill “in the form mostly of gastrointestinal complaints, nausea, vomiting and stomach ache pain that cleared up.” In December of that same year he had “some swelling of his face and redness of his eyes an<i * * * some more abdominal pain.” He began to have burning and tingling sensations in his fingers and toes. On February 1, 1966 he was admitted to Potomac Valley Hospital complaining of recurrent vomiting, discomfort in the upper abdomen, a skin rash on the hands and feet and a tingling sensation of the hands and feet. Routine laboratory and X-ray studies indicated he had “an ulcer in the first part of the small intestine just below the stomach. It was initially felt that this ulcer could have caused his vomiting and discomfort in the upper abdomen and he was started on routine ulcer management.” He was in the hospital until February 10th and his condition seemed to improve. When he was discharged “he had persistent numbness and tingling in the hands and feet, but otherwise he was essentially asymptomatic.” The day following his discharge from the hospital he again began to have recurrent vomiting and discomfort in the upper abdomen. He was readmitted to the hospital on February 13, 1966 and “his condition had deteriorated considerably. At that time he complained of rather severe headache, recurring vomiting, discomfort in the upper abdomen, weakness of the upper extremities, and of the lower extremities, making it somewhat difficult for him to walk and the parasthesia or numbness of his hands and feet had increased.” The exact cause for this set of symptoms was not apparent to his physician and on February 17th he was transferred to West Virginia University Medical Center. At that time “he was seriously ill * * * and his condition was deteriorating relatively rapidly.” His pulse was fast, his heart rate was fast, his skin was dry and his mouth, throat and the lining inside his eyes were dry and inflamed. He had a scaling red rash on his body and decreased breath sounds in the base of both lungs. There was no evidence of heart failure except the fast heart rate and a chest X-ray confirmed this. He could not move his arms and legs and his reflexes were diseased. Based on symptoms, findings and laboratory data the conclusion clinically was that he was suffering from arsenic intoxication. He died March 2, 1966. The final clinical diagnosis was death due to arsenic intoxication. The conclusion on the findings of the autopsy was that the cause of death was “cardiac failure secondary to myocarditis, which was produced by arsenic.” An analysis was made of specimens of the deceased’s liver, bones, hair and fingernails. Arsenic was present in each.

On March 30, 1966 the wife of the deceased gave a statement to the police which was reduced to writing, subscribed and swmrn to by her. She described the marital relationship substantially as heretofore summarized. She said that in September 1965 her husband “brought home a bottle of poison and poured it along the cellar walls” because there were termites in the cellar. He used it all and brought home a second bottle which he placed on a window-shelf in the basement “right beside the door that goes outside.” On Monday or Tuesday before Halloween, either October 25th or 26th 1965 she “started to put it in Howard’s coffee * * * I put it in his coffee for supper that night.” She put about a half an inch of the poison in his cup of coffee. Fie drank it. He had slapped her and called her a w'hore two days before and “it took me that long to get enough nerve to do it.” She put about the same amount of poison in his coffee at supper three or four days before Thanksgiving, about November 22, 1965 and again the day after Christmas, 1965. Either Friday or Saturday, January 14th or 15th, 1966 she and her husband had been out and when they arrived home he shoved her for no reason at all. Her brother was present and her husband hit her “three or four times” and pulled her hair. Her brother made him stop. Her husband asked for another cup of coffee. “When he said that, I thought that would be a good time to give him another shot.” She brought the poison bottle up from the cellar, poured the same amount as before in a cup, filled the cup with coffee and gave it to her husband. “He drank the cups of coffee each of the four times I put the poison in them.” After that she did not give him “any additional poison * * * he got sick on Sunday, January 30, 1966, and that’s the reason I didn’t have to give him any more.” She agreed to give the bottle and its remaining contents to the police and accompanied them to her home. She gave them a pint bottle of “Elkays Insect Killer.” It had been locked in a cabinet in the basement.

On April 4, 1966 the grand jury presented that Doris Helene Hott did “murder Howard Vernon Hott by administering a certain poison.” An indictment was returned against her and she was tried in the Circuit Court of Allegany County before a jury. On May 17, 1966 she was found guilty of poisoning and defiling and corrupting and contaminating certain drink or food of Howard Vernon Hott, which was the offense charged in the second count of the four count indictment, the other counts charging the offenses of murder by poison, attempt to commit the offense of which she was convicted and attempt to poison. On June 22, 1966 she was sentenced to imprisonment for a term not to exceed 8 years.

On appeal from the judgment it is contended that the evidence was not sufficient to sustain the conviction and that the written statement given by her to the police was improperly admitted in evidence.

The offense of which the appellant was convicted is proscribed by Art. 27, § 451, Md. Code (1967 Repl. VoL). The section consists of only one sentence but contains two parts. The first part concerns the corruption or contamination of sources of domestic water supply “by means of disease germs or bacteria or the insertion of any other poison or poisonous matter therein.” The second part provides:

“* * * and every person, his aiders and abettors, who, by like means, knowingly and wilfully poisons, defiles or in any way corrupts or contaminates any drink, food or food products or supply, or attempts so to do, or conspires or connives thereat; shall be guilty of a felony * * *.”

It is clear, therefore, that the poisoning, defiling, corruption or contamination of drink or food must be by means of disease germs, bacteria, poison or poisonous matter.

There was in evidence two definitions of poison. A resident physician in internal medicine at the West Virginia University Medical Center defined it, according to Dorland’s Medical Dictionary, as “any substance when injected into, digested, absorbed, applied or made within the body itself or inhaled, can cause damage to structure or disturbance of functioning.” An “assistant toxicologist to the Chief Medical Examiner’s Office in Baltimore” stated:

“A poison, in very broad terms, is any substance absorbed by any roots to any significant amount which proves detrimental to the health or causes death.”

A chemist for the West Virginia State Police made an analysis of Elkays Insect Killer and found no arsenic in it. He stated that the compounds contained in the solution “could be harmful, but it takes a fairly large quantity of it to be harmful.” He was unable to give an opinion as to how great a quantity would prove harmful to a human being but he did not believe that the amount of liquid shown to have been taken out of the bottle of the insect killer given to the police by the appellant over a period of four months would have any deleterious effect mixed with coffee. Nor could the toxicologist give a definite answer as to what quantity would have to be taken in order for it to be toxic or harmful:

“It’s not easy to answer this question. Lots of things have to be considered. What amount might be fatal or what amount might cause an ill effect. Considering that a man who is healthy was impaired already, for example, by abuse of alcohol, it might be quite different and be much less amount of the substance to be injurious to health. We do know definitely from the literature, for example, that quite a margin exists in taking such substances from small amounts up to one liter. Even so, the question cannot be easily answered by saying well, one gram or ten milliliters is poisonous or toxic or harmful.”

His analysis showed that the principal ingredient, 99.5 per cent, of Elkays was a solvent, a hydrocarbon, which he referred to in plain terms as kerosene. There was a “very, very small concentration of the three chemicals which are considered as insect killers * * *. If you take now a cupful of this substance, even a coffee cup full of this substance, there might only be a few drops or a few crystals of this insect killer in it (the rest being the solvent, kerosene) * * * so the harmful effect of the solvent has to be considered primarily, I think.”

It has been consistently held that in order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there be no legally sufficient evidence or rational inferences drawable therefrom on which the jury could find a defendant guilty beyond a reasonable doubt. Agresti v. State, 2 Md. App. 278, 284.

We agree with the appellant that the evidence adduced was not sufficient to show' that the coffee, by the introduction in it of Elkays, was poisoned, defiled or in any way corrupted or contaminated by the means required by the statute. Elkays was not shown to be a poison within the definitions. One expert did not believe that the amount of the substance alleged to have been placed in the coffee over a period of four months would have any deleterious effect. It appeared from the testimony of the other expert that the three chemicals considered as insect killers in the substance were not in sufficient quantity in the coffee to be harmful and that if the Elkays was harmful to the deceased it would have to be from the solvent, kerosene. But there is no evidence that his illness was caused by the kerosene. On the contrary, his illness and death were from arsenic poisoning, and no arsenic was found in Elkays. However, this finding is not dispositive of the case. The proof of the charge under which the appellant was convicted was not limited to Elkays Insect Killer as the means of poisoning the food, and the question is whether there was sufficient evidence or rational inferences drawable therefrom on which the jury could find the appellant guilty beyond a reasonable doubt of contaminating the food or drink of her husband by means of arsenic.

We think it clear from the evidence that arsenic is a poison —it was the cause of the death of Howard Vernon Hott. The internist produced by the State stated that the most common form of arsenic, arsenic trioxide, is “a white powder, practically tasteless and odorless.” In her statement the appellant said the label of the bottle containing the substance which she put in her husband’s coffee contained the word “Poison.” She said, I read the label and it said, ‘Do Not Take Internally’ and ‘Poison.’ ” Asked how the word “Poison” was written out, she replied, “I don’t remember but it said “Poison.” On the stand she admitted saying that. The bottle of Elkays given by her to the police did not contain the word “Poison” anywhere on the labels. Although the label on the back of the bottle cautions: “Harmful if swallowed,” the labels do not say “Do Not Take Internally.” Further in her statement upon being asked when she noticed the words on the label of the bottle of poison, “Do Not Take Internally” and “Poison” she replied, “When Howard was pouring it out one time, I don’t remember when it was.” The word “poison” in describing what she gave her husband is used some forty-five times in the statement, once in her own handwriting when she interlined, “Pie drank the cups of coffee each of the four times I put the poison in them,” but the substance is never referred to as Elkays and when asked if she knew what kind of poison she was administering to her husband she said “no,” explaining in her testimony that she so answered “because it wasn’t any poison * * * I knew it wouldn’t hurt him because I stuck my finger down in the bottle and tasted it myself.” Yet she also said that she decided to poison her husband because of the beatings, “I was going to hurt him like he hurt me.” She also said in her statement that the bottle was full when she started to give it to her husband and that after putting it in his coffee four times it was “a little over half full.” The bottle given to the police was marked by them to show the height of the contents. The mark indicated that it was over three-quarters full. Elkays, on its labels, represents that it “controls flies, mosquitoes, ants, several types of roaches, water bugs, centipedes, silverfish, gnats, bed bugs and clothes moths.” Termites are not mentioned, but her husband bought something to kill what he thought were termites. There was testimony that forms of arsenic, calcium arsenate and lead arsenate, are in other insecticides. The toxicologist testified that he poured some of the Elkays Insect Killer into a cup of coffee because “* * * when I was confronted first with the problem I got this bottle, which has a certain odor and which I immediately saw is an immersible solvent with water. I wondered how that could be, how can it be mixed because it won’t mix. If you pour that into any liquid solution like coffee or water or what have you you certainly will have a separation of the two layers. It’s like oil pouring on water. It doesn’t mix with it. It stays as a clear layer on top of it. It has a peculiar faint odor and I wondered, without knowing anything about the case, how anybody could drink such a thing, if he is not, if you permit me to say, drunk. He would immediately recognize there is something which doesn’t belong in it. So, without knowing anything about the case, I just wondered, * * *, how anybody could drink such a thing.” We think, therefore, that there was sufficient evidence for the jury to find that it was not the Elkays Insect Killer that the appellant put in her husband’s coffee and that the bottle she gave to the police did not contain the substance she put in his coffee. Whether she gave that bottle to the police by mistake or on purpose is immaterial. But it does not follow that there was no evidence or rational inferences therefrom sufficient for the jury to find that she put arsenic in the coffee.

During her husband’s illness the attending physicians talked to her several times about poison per se and arsenic, but she made no mention to them of what she had done because she was “afraid.” Asked if she realized that if she told the doctors that she had given her husband poison “they would have a better chance of getting Howard better or saving his life,” she said, “I never thought of that.” There was testimony, without objection, from a sister of the deceased that the deceased said in the hospital in the presence of the appellant, that he wished his wife would get out of the room, “she has tried to poison me too many times.” The appellant made no reply. Another witness, a friend of the deceased, visited the deceased at his home on February 12, 1966. This witness testified, without objection, that the deceased, “out of a clear, blue sky sat up on the bed and said, T believe the old woman is trying to poison me with arsenic.’ ” The appellant “was sitting on the other side of the bed and she looked at me and she filled up with tears and said, ‘ain’t that awful, the way I have been taking care of him.’ And that is all that was said about that.” The deceased was employed by the West Virginia Pulp and Paper Mill. A criminal investigator of the Maryland State police testified that he made an investigation at the Mill which showed that no arsenic was used there, “everything that they use is * * * Federal Drug Administration approved.” The appellant was asked by the police on March 30, 1966 if her husband had any insurance on his life and she replied, “I really don’t know anything about any insurance. He always took care of that.” She denied that any insurance company had been in touch with her and said she had not received any insurance money. “I have a little over $300 and have been living on that.” The mother-in-law, father-in-law, and two sisters-in-law of the appellant testified that on January 2, 1966 the appellant said that if anything happened to Howard “I will be a rich widow.” There was evidence that the appellant was the beneficiary of an “immediate relief fund” from the employer of her husband in the amount of $1102.50 and under a group insurance policy in the amount of $6000. There was testimony from an insurance agent that the appellant was the beneficiary under two insurance contracts totalling $15,460 and that he had discussed them with the deceased and the appellant in March of 1963. He had called on the appellant about March 8, 1966, received the policies from her and completed the claim forms. At the time of the trial only $500 had been, paid to the appellant and this from the amount due under the immediate relief fund.

It is not disputed that the appellant put something in her husband’s coffee on four separate occasions, the latter part of each of October, November and December 1965 and the middle of January 1966. Her husband first became ill in October 1965. In December 1965 he had “swelling of his face and redness of his eyes * * * some more abdominal pains” and burning and tingling sensations in his fingers and toes. He became much worse on January 30, 1966 and was admitted to the hospital on February 1st. He improved enough to be discharged but the day after he returned home he began to have recurrent vomiting and discomfort in the upper abdomen. After three days at home his condition had deteriorated considerably and he was readmitted to the hospital. He died on March 2nd and it was determined that his illness and death were due to arsenic poisoning. From the evidence, the appellant had a primary motive and obvious opportunity to administer poison to her husband. We do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, as that is the prerogative of the trier of facts. But we think it clear that the evidence and proper inferences therefrom were sufficient to show that the appellant had contaminated the coffee of her husband by means of arsenic and that the jury, on such evidence and inferences could find the appellant guilty as charged beyond a reasonable doubt.

The contention that the written statement given by the appellant to the police was improperly admitted in evidence is predicated upon the allegation that the guidelines enunciated in Miranda v. Arizona, 384 U. S. 436, were not followed by the police in obtaining the statement. She does not contend that it was otherwise involuntary. Miranda is only applicable to those cases, the trial of which began after June 13, 1966. Johnson v. New Jersey, 384 U. S. 719; Boone v. State, 2 Md. App. 80. The appellant’s trial began May 16, 1966 and Miranda is not available to her.

Judgment affirmed; appellant to pay costs.


text:
    RALPH CARDER, JR. v. WARDEN, MARYLAND PENITENTIARY
    [No. 122,
    September Term, 1967.]

      Decided March 6, 1968.

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

Ralph Carder, Jr. seeks leave to appeal from an order of the Circuit Court for Howard County dated November 6, 1967 denying his petition for revision of the court’s earlier order of August 17, 1967, modifying its initial order of March 1, 1967, pursuant to which applicant had been granted a belated appeal under the provisions of the Uniform Post Conviction Procedure Act.

The applicant was convicted of murder in the Circuit Court for Howard County on February 28, 1964 and was thereafter sentenced to life imprisonment. He appealed from his judgment of conviction on March 26, 1964, but the appeal was dismissed by appellant’s counsel on November 4, 1964. On August 17, 1966, applicant filed a petition under the Uniform Post Conviction Procedure Act seeking a belated appeal on the ground that his earlier appeal had been dismissed without his consent and knowledge. By its order dated March 1, 1967, the court granted a belated appeal, giving the reasons for its action in a memorandum opinion accompanying the order as follows:

“This Court believes that it is probable that the Petitioner did not understand that the dismissal of an appeal was not the same thing as the affirmance of the judgment and sentence of the trial court after the appeal had been argued and considered. The record does not satisfactorily establish that he was definitely told of the action his attorney proposed to take and that he agreed to it. In view of the decision of the Court of Appeals in a somewhat analogous case, State v. Shoemaker, 225 Md. 639, and in view of the fact that a life sentence has been imposed on the Petitioner, justice requires that he be granted a delayed appeal. No criticism of the Petitioner’s trial counsel is suggested. He appears to have served his client zealously and conscientiously throughout the trial and afterward. It is probable that a misunderstanding occurred but, considering the possible stakes involved and the fact that there is power to rectify the matter, this Court reaches the conclusion stated.”

The State did not seek leave to appeal from the court’s order granting the belated appeal within the thirty-day period provided in Article 27, Section 645-1 of the Maryland Code (1967 Repl. Vol.). After applicant’s appeal was docketed in the Court of Special Appeals, he filed a motion on May 20, 1967 with this court to have the case remanded to the Circuit Court for Howard County so that proceedings could be initiated to vacate the conviction under Schowgurow v. State, 240 Md. 121. While this motion was pending for decision, the State, on June 28, 1967, filed a “Petition for Modification” of the order of the Circuit Court for Howard County which had granted applicant the delayed appeal. In its petition the State alleged that the court “did not apparently consider what, if any, effect the Schowgurow decision would have upon the Court’s Order granting relief.” The State’s petition requesting reconsideration “of the scope of the order granting a delayed appeal” was apparently bottomed upon Maryland Rule 764 b, applicable in criminal cases, which vests certain “revisory power and control over the judgment or other judicial act forming a part of the proceedings.”

The court considered the State’s petition for modification and on July 13, 1967 filed its memorandum opinion stating, in effect, that in granting the applicant a belated appeal, it had not considered the impact of the Schowgurow decision, but that “it was not contemplated by this court that the relief granted extended further than permitting an appellate review of the criminal case.” The court noted that Schowgurow was decided on October 11, 1965, and that, as of that time, applicant’s conviction was final. The court, therefore, entered an order on August 17, 1967, amending its order of March 1, 1967 to “preclude the said Ralph Carder from having his judgment and sentence remanded for further proceedings to challenge his original indictment on the basis of the Schowgurow decision.”

Applicant did not file an application for leave to appeal from the amended order within the thirty-day period, but instead filed a petition on September 14, 1967 seeking revision of the court’s order of August 17, 1967, stating therein that the court was without jurisdiction to amend its order, and that the judgment of conviction was not final under the Schowgurow decision. On November 6, 1967, the court denied applicant’s petition for revision. From the denial of that petition, applicant filed his application for leave to appeal on November 29, 1967.

The State takes the position that the application for leave to appeal was not timely filed, since it was filed more than thirty days after the court’s amended order of July 13, 1967. The applicant, on the other hand, takes the position that his application for leave to appeal was filed within thirty days from the court’s order of November 6, 1967, denying his petition for revision of the court’s amended order of July 13, 1967, and is thus timely filed.

We think it clear that the Circuit Court for Howard County had authority to amend its order of March 1, 1967 under that part of Maryland Rule 625, applicable to judgments entered in post conviction cases (see State v. Giles, 239 Md. 458, at pages 467-468) which vests revisory power and control in the court over its judgments, inter alia, for “mistake or irregularity.” On the record before us, we conclude that the court’s action in amending its initial order was taken under this Rule, and that applicant, being “aggrieved” by the amended order, should have filed his application for leave to appeal therefrom within the statutory thirty-day period.

We are moreover of the opinion that under the circumstances of this case, the post conviction judge acted within his authority in limiting the scope of the relief granted applicant to appellate review of his criminal conviction, so as to preclude him from having his judgment of conviction summarily vacated under Schowgurow. Maryland Rule BK 45 provides that the post conviction judge, after the hearing on the petition, “shall make such order on the petition as justice may require” and that in the event that the order shall be in favor of the petitioner, “the court may also provide for rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper.” We think the post conviction judge could properly conclude—for purposes of applying the Schowgurow rule of retroactivity in applicant’s case—that his judgment of conviction was not other than “final” within the meaning of Schowgurow on October 11, 1965, the date of that decision; and that the Schowgurow court, in excepting “convictions which have not become final before rendition of this [Schowgurow] opinion” from the otherwise purely prospective operation of the legal principles enunciated in their decision, did not contemplate the automatic inclusion within such exception of a case in which a judgment of conviction had become final long prior to Schowgurom but where, in subsequent post conviction proceedings, a belated appeal was granted. Compare Brady v. Warden, 2 Md. App. 146. So viewed, we think that the amended order of July 13, 1967 was properly entered under Maryland Rule 625, that its substance was not other than in conformity with Maryland Rule BK 45, and that nothing in the Schowgurom decision itself prohibited the post conviction judge from limiting the scope of his relief to a belated appeal, excluding from such relief the right to vacate the judgment of conviction under Schowgurom, and demand a new indictment. In so concluding, we note that the applicant, at his original trial, did not raise any question concerning the composition of either the grand or petit juries.

Application denied.

      . In view of our holding herein, we have denied applicant’s motion of May 20, 1967 requesting that we remand his direct appeal to the Circuit Court for Howard County so that proceedings could be there initiated to vacate the conviction under the authority of the Schowgurom case.


author: Murphy, C. J.,

text:
    JOHNNY MACK BROWN v. STATE OF MARYLAND
    [No. 129,
    September Term, 1967.]

      Decided March 6, 1968.

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

      Bernard A. Greenberg for appellant.
    ■ Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Chaides B. Moylan, Jr., State’s Attorney for Baltimore City, and Alan B. Lipson,

      Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

The appellant, Johnny Mack Brown, was convicted of murder in the first degree on March 7, 1967 by the court sitting without a jury and sentenced to life imprisonment in the Maryland Penitentiary. He contends on this appeal (a) that his confession was secured in violation of the principles enunciated in Miranda v. Arizona, 384 U. S. 436, and was thus improperly admitted into evidence at his trial, and (b) that certain statements made by a police officer to the appellant’s father while appellant was in police custody were also erroneously admitted into evidence at his trial, and (c) that the evidence was insufficient to support the conviction.

There was evidence adduced at the trial from which the trier of fact could find that in the late afternoon of September 26, 1966, Gail Jefferson, age fourteen, was shot with a .22 caliber bullet while playing in the courtyard of an apartment project and died shortly thereafter; that at 8:31 p.m. that same day, the appellant phoned the police stating: “I’m Johnny Mack Brown, and I want to give myself up for shooting that girl today. I am walking from Fayette and Broadway to 302 North Ann Street, my mother’s house”; that the police, at 8:35 p.m., arrived at appellant’s mother’s home, at which time the appellant, in company with his father, walked up to the police and stated: “I’m the one that called. I’m the one that did the shooting”; that appellant then gave the officers a .22 caliber bullet, after which he was taken to police headquarters and placed in a cell; and that at'8:55 p.m. he was taken to the Sergeants’ Room for interrogation where, within a short time thereafter, he gave police a written statement to the effect that he had shot Gail Jefferson with his .22 caliber rifle from the window of a second floor apartment of a friend’s home because the victim had teased him earlier in the day.

Appellant contends that his statement was improperly admitted at the trial over his objection since the State failed to prove that he had voluntarily, knowingly and intelligently waived his constiutional right to remain silent and to have counsel to represent him.

The record discloses that appellant was interrogated by Detective Donald Raley and Sergeant Carl Zamerelli in the presence of two other officers. Raley testified that before any interrogation began appellant said that, “he wanted to tell us what had happened,” and also said, “I want to get it off my chest.” An objection to the admission of these oral statements was made by appellant and the objection was sustained by the court. Detective Raley was then asked, “What was the next thing that was said or done?” He answered, stating that, “We had the typewriter and what not prepared and we prepared to take a statement.” Raley further testified that, “prior to taking any statement from him,” appellant was told of his right to remain silent, that anything he said would be used against him in court, that he could have a lawyer present if he cared to have one, and that if he could not afford an attorney, one would be secured for him. Detective Raley was then asked:

“Q. What happened if anything after you told the defendant, after you gave him this information?
“A. He told us what had happened.
“Q. Before you started to get anything, was there any other discussion on any other matter preliminary to taking down the statement on paper ?
“A. Well we asked him some questions, some little background what had happened.”

On cross-examination, Detective Raley was asked:

“Q. In fact after you finished advising him of his rights you didn’t ask him whether or not he wanted a lawyer, did you ?
“A. We asked him already, yes.
“Q. You did?
“A. We asked him if he wanted a lawyer and he said he wanted to tell us what—”

At this point, the State objected and Detective Raley did not complete his answer. The court then adjourned for lunch.

On re-direct examination, Raley testified that he had no doubt that the appellant understood the Miranda warnings. Appellant objected to the answer and the objection was sustained by the court. Raley was then asked:

“Q. Did the defendant ask any questions after the warnings were given, * * * ?
“A. The defendant stated he wanted to give—”

An obj ection to the answer was sustained by the court.

Raley was thereafter asked on re-direct:

“Q. What if anything did the defendant say as you gave him these warnings ?
“A. Nothing. We went ahead with the statement with the exception he wanted to give a story, his side of the story.”

As the State’s re-direct examination of Detective Raley progressed, it sought to show that in the preliminary part of appellant’s written statement, he expressly acknowledged that he understood the Miranda warnings, and nevertheless wanted to tell the police what had happened. An objection to this line of testimony was sustained by the court. Thereafter, Raley was asked:

“Q. Did Mr. Brown at any of those times prior to, during or subsequent refuse to give you any information concerning this offense ?
“A. No, sir.
“Q. Did Mr. Brown question you as to what you meant after you had given him the warnings you already testified to ?
“A. No.”

On re-cross examination of Detective Raley, he testified that appellant was asked, “if he wanted an attorney present at the time he was talking to us.” The record does not reveal what, if any, response appellant made to that question.

Appellant testified as to the voluntariness of his statement, and was asked:

“Q. What were you told by the police if anything ?
“A. They asked me if I—I ain’t had to say nothing, I could remain silent, if I want I could have a lawyer right there where I was, let him hear what I was telling them.
“Q. Speak clearly ?
“A. They told me I could remain silent and if I don’t want I ain’t have to say nothing without a lawyer would be there to listen to hear what I say.”

To the question of “whether he knew that he could have a lawyer right then and there,” appellant answered in the negative but the court sustained an objection to this answer. Appellant was then asked by his counsel:

“Q. What did you say if anything after you were informed of your rights ?
“A. I didn’t say anything. I just started telling them what had happened.”

On cross-examination, the appellant testified:

“Q. Mr. Brown, it was your intention all along to turn yourself in and to tell the police about what had happened, was it not ?
“A. Yes.”

Appellant’s statement was then offered in evidence. The appellant objected on the ground that the evidence failed to show a knowing and intelligent waiver of his right to remain silent and to have a lawyer present to represent him. The court concluded that the statement was admissible in evidence, stating:

“THE COURT: I find that any indecision about what was told to the defendant by Detective Raley has been answered conclusively by the testimony of the defendant himself who certainly corroborates Detective Raley when he said, yes, the police told me among other things I could have a lawyer right there with me. The defendant stated I didn’t say anything after I was informed of my rights. Then I just told them what happened.
“THE COURT: I hold that the police in this case acting through Detective Raley at that time clearly told the defendant of his existence of his rights under Miranda together with the other information according to the testimony pertaining to the fact that no promises were made, no inducements were made, no coercion, no violence exerted and it seems to me to be very clear that the police had met affirmatively the burden upon them placed on them by the Miranda case.”

The written statement, as read into evidence, contained by way of introductory matter a recitation of the details of the particular crime which the officers were investigating, together with the fourfold Miranda warnings, after which appellant was asked, “Johnny, do you understand what I just said?” to which he replied:

“Yes, I understand what you said; & I want to tell you just what happened.”

We have no difficulty in concluding that appellant was afforded all the constitutional warnings to which he was entitled under the Miranda decision, including advice in clear terms that he had a right to have counsel present during the interrogation. But as Miranda makes clear at page 475, if after such warnings have been given, custodial interrogation is undertaken without the presence of an attorney, and a statement is taken, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Equally plain from Miranda is the flat holding at pages 475 and 479 that no evidence obtained as a result of a custodial interrogation can be used against an accused unless and until the prosecution demonstrates a waiver of his constitutional rights within the meaning of Johnson v. Zerbst, 304 U. S. 458, a case which holds that waiver of a fundamental constitutional right is ordinarily “an intentional relinquishment or abandonment of a known right or privilege,” the determination of which “must depend in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Within this framework, the Miranda court, in the course of its opinion, articulater further guidelines governing waiver of an accused’s right against self-incrimination and to retained or appointed counsel at the interrogation, namely:

(1) “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained * *
(at page 475)
(2) “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (at page 475, quoting from Carnley v. Cochran, 369 U. S. 506)
(3) “That the accused’s ‘failure to ask for a lawyer does not constitute a waiver’.” (at page 470)
(4) “The mere fact that he [the accused] signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.” (at page 492)

It is against this background that we consider whether appellant knowingly and intelligently waived his Miranda rights before making his statement. The record discloses that appellant was seventeen years of age when the crime was committed and had a ninth grade education; that on two occasions shortly after the crime—at a time when he was not in police custody —appellant' voluntarily contacted the police to tell them that it was he who had shot the girl and that he wanted to surrender himself. It further appears that appellant’s father advised him to tell the police what had happened, and from appellant’s own testimony it is clear that he intended from the outset to do so. His written statement containing the incriminating admissions was not spontaneously offered, however, but rather was secured following a brief “custodial interrogation” within the meaning of the Miranda decision. And while it appears clear from appellant’s own testimony that he understood that he had a right to remain silent and to have counsel present during the interrogation, the testimony does not show that he expressly waived these rights. On the contrary, the testimony shows only that after the warnings were given to him, appellant said nothing but promptly proceeded to give police an incriminating written statement. In finding that appellant’s statement was admissible as having been secured in conformity with the dictates of the Miranda decision, the trial judge did not, at the time of such ruling, have in evidence the express acknowledgement of the appellant, contained in his written statement, to the effect that he understood the import of the Miranda warnings and nevertheless wanted to make a statement.

As heretofore noted, the Miranda court held flatly that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained,” nor will “failure to ask for a lawyer * * * constitute a waiver.” But the ultimate determination of whether the appellant knowingly and intelligently waived his Miranda rights before making a statement is governed, in the final analysis, by whether the particular facts and circumstances surrounding the case are such as to demonstrate an intelligent and intentional relinquishment or abandonment of a known right or privilege. Carnley v. Cochran, supra; Johnson v. Zerbst, supra. Thus, in United States v. Hayes, 385 F. 2d 375 (4th Cir.), it was held, in effect, that an express statement by an accused undergoing custodial interrogation that he understood his Miranda rights, and nevertheless wanted to make a statement, is not an essential link in the chain of proof of waiver. In that case, the court held that “strong and unmistakable circumstances” may, upon occasion, establish an effective equivalent to an express waiver of an accused’s Miranda rights, and that to constitute such a waiver “the attendant facts must show clearly and convincingly that he [the accused] did relinquish his constitutional rights knowingly, intelligently, and voluntarily * * The Hayes court, in finding that the accused had effectively waived his Miranda rights, considered a number of factors in reaching its conclusion, among them the fact that the defendant was permitted to make a telephone call prior to his interrogation, that there was no allegation of physical or psychological coercion, that the defendant was healthy and alert and did not appear unnerved, that he was fully advised of his constitutional rights and did not deny that he understood them, and that there was no showing that his intellectual endowments were in any way impaired.

In the present case, as in Hayes, there was no allegation that appellant was subjected to physical or psychological coercion, or that his intellectual endowments were impaired. That he was fully advised of his constitutional rights is abundantly clear from the record and we are persuaded, particularly from appellant’s own testimony, that he understood them. Of prime importance in determining whether there was an effective waiver of these rights is the fact that appellant, apparently acting under some parental guidance, voluntarily surrendered himself to police with the intention of telling them “what had happened.” That he did so tell the police within a very short time after the interrogation had begun is likewise significant. In considering the conduct of the appellant, therefore, as it bears on the question of waiver, we think it manifest that he was not a person, such as contemplated by the Miranda decision, who, by reason of the custodial interrogation, is suddenly placed under a compulsion to speak where he might not otherwise do so.

Despite the fact that the testimony at trial prior to the admission of appellant’s statement failed to show an express waiver of appellant’s right to remain silent and to counsel, we nevertheless hold that the totality of the circumstances—the attendant facts of the case—are such as implictly show that he voluntarily and intelligently relinquished these rights and made a statement. We think that from the time appellant phoned the police to arrange for his surrender, to the time he signed the written transcript of his statement, he had a continuing disposition to make a statement to the police about the crime, that he was expressly and clearly warned of his constitutional rights, regarding self-incrimination and of the right to counsel, and: that he understood what he was told.

In concluding that the circumstances of this case show a valid waiver, we have, of course, considered the fact that appellant was only seventeen years of age at the time of the crime and possessed a ninth grade education. We have also considered the fact that while appellant’s father was present at the police station, he did not request, and the police did not therefore deny him, access to his son during the interrogation. See State v. Hance, 2 Md. App. 162. And while we have not considered appellant’s express waiver of his constitutional rights - contained in his written statement as substantive evidence of waiver—since the statement was not introduced in evidence until after the issue had been decided by the trial judge—it does tend to show in explicit terms the existence of the waiver that we have found implicit on the facts and circumstances of this, case. We, therefore, find no error in the admission of appellant’s confession into evidence.

Appellant next contends that it was prejudicial error for the-trial court to have admitted the testimony of Detective Raley whereby he related the substance of his conversation with appellant’s father at the police station. The record discloses that prior to any questioning of the appellant at the police station, Detective Raley told appellant’s father, in response to his inquiry as to his son’s status, that the police were going to talk-to the appellant if he so desired, that the appellant did not have-to talk to the police, that he could remain silent, and that the-police would get the appellant a lawyer if he wanted one. While-we agree that the verbal exchange between the detective and appellant’s father, out of appellant’s presence, was not relevant to the issue of whether appellant was personally apprised of his Miranda rights or whether, having been so apprised, he waived them, nevertheless we hold that the admission of the conversation into evidence, even if erroneous, was in no way-prejudicial.

Finally, we see no merit in appellant’s contention that the evidence was insufficient to support his conviction. By his confession, appellant admitted shooting the victim under circumstances showing a wilful, deliberate and premeditated killing. There was independent evidence that the murder weapon belonged to appellant and the corpus delicti was independently established. And the trial judge was not required to believe appellant’s testimony at trial that the shooting resulted from an accident.

Judgment affirmed.

      . In Miranda, the court held at page 476—
      “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.” (Emphasis supplied.)


author: Morton, J.,

text:
    BRUCE GEORGE HANNAH, JR. v. STATE OF MARYLAND
    [No. 93,
    September Term, 1967.]

      Decided March 12, 1968.

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

      Joseph S. O’Brien, Jr., for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom ■were Francis B. Burch, Attorney General, William A. Lin■thicum, Jr., State's Attorney for Montgomery County, and -Barry H. Helfand, Assistant State’s Attorney for Montgomery >County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant, Bruce George Hannah, Jr., was convicted of ;arson and burglary by a jury in the Circuit Court for Montgomery County. Judge Walter H. Moorman, the presiding judge, sentenced him to the Maryland Penitentiary for periods •of fifteen years and five years, respectively, the sentences to be served concurrently.

In this appeal, he contends (1) that the failure of the lower «court to make timely appointment of counsel constituted a denial of due process and (2) that there was legally insufficient evidence to support the jury’s verdict.

Hannah was arrested on July 14, 1966, in connection with a fire wdiich had occurred in St. Paul’s Methodist Church, Kensington, Maryland, early in the morning of May 3, 1966. Unable to furnish bond, he remained incarcerated until his trial, which was held on December 8, 1966. Pie had waived a preliminary hearing on July 19, 1966; was indicted on September 8, 1966; and arraigned on October 7, 1966, at which time counsel was appointed to represent him. Plis Motion to Dismiss for Lack of a Speedy Trial was based on the alleged excessive lapse of time between the date of his arrest and the appointment of counsel. The Motion, after hearing, was denied by the lower court on ■October 25, 1966.

I.

In support of his first contention, the Appellant argues that the failure to appoint counsel in a timely manner: (a) prevented the Appellant from making a well reasoned decision with regard to his right to a preliminary hearing, (b) made more -difficult the preparation of his defense with respect to the collection of evidence, and (c) caused a delay in the trial of his case, thereby denying him his right to a speedy trial. We find these arguments to be unconvincing.

There is no requirement that a preliminary hearing be held, ■even if demanded, since it is not an essential proceeding in obtaining a valid conviction, Ross v. Warden, 1 Md. App. 46, 52, and even where a preliminary hearing is conducted, this Court has held that, except in the most unusual circumstances, an accused has no absolute right to have counsel appointed prior thereto. Crumb v. State, 1 Md. App. 98, 104. The Appellant’s reliance upon Miranda v. Arizona, 384 U. S. 436; Escobedo v. Illinois, 378 U. S. 478, and Gideon v. Wainwright, 372 U. S. 335, is misplaced. Miranda and Escobedo deal with the validity of confessions in the absence of counsel; and as Chief Judge Murphy stated for this Court in State v. Hardy, 2 Md. App. 150 (p. 155):

“Contrary to the view that Hardy’s attorney urged upon the court at the post conviction hearing, Gideon v. Wainwright, 372 U. S. 335, deals with representation by counsel at the trial itself, and does not apply the rule to counsel ‘retrospectively to every substantive stage of a criminal proceeding in Maryland.’ There is no constitutional requirement that a person be granted counsel at the time of arrest.”

It is apparent, therefore, that the lapse of time between the Appellant’s arrest and the appointment of his counsel did not constitute a denial of a speedy trial or a denial of due process of law.

II.

We think there was legally sufficient evidence to support the jury’s verdict. The record revealed that the Minister of St. Paul’s had left the church about 10:50 P.M. on the evening of May 2, 1966, being the last to leave. About 12:50 A.M. on the morning of May 3, 1966, he received a call telling him of a fire at the church. Upon his arrival he could see that the sanctuary was in flames and thereafter he was able to enter the church with the Fire Marshal. He was unable to say whether anything was missing. However, he did identify a partially burned photograph of a religious picture used as a teaching aid in the church school. He explained that it was found on the floor of an interior storage closet in a room where only teachers in the school were allowed; that the picture, along with others, was regularly kept on a table in the outer area; and that the pictures were not distributed outside the church. It was on this picture that the Appellant’s fingerprints were found.

The Minister further testified that certain entrance doors to the church were normally open during the day and normally closed and locked by a night watchman between 10:30 P.M. and 11:00 P.M. each evening. Referring to the evening in question, the Minister stated: “We pay a man to lock that building and I was there when he locked the building.” He conceded, however, that he did not personally check to ascertain whether the doors were actually locked, but he did hear the doors being closed. Finally, he testified that when he arrived during the fire, one of the exterior doors, which had been closed prior to the fire, was open.

A detective of the Montgomery County Police Department testified as to the finding of the Appellant’s fingerprints and estimated that the impression was made between twelve and twenty-four hours prior to its being “lifted” by the police. Although the detective was not present “when it was dusted,” it was turned over to him as he came on duty on May 4, 1966. Representatives of the County Fire Department testified that, in their opinion, the fire was of an “incendiary” origin.

The Appellant told the police that he had never been in the Church, stating that he lived nearby, had heard the fire engines and went to the scene of the fire.

“It is generally recognized that fingerprint evidence found at the scene of a crime must be coupled with evidence oj other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. 3 Wharton Criminal Evidence (12th ed.), sec. 982; II Wig-more, Evidence (3rd ed.); §414.” (Emphasis added). McNeil v. State, 227 Md. 298, 300. We think that the “evidence of other circumstances” requirement was met. The lower court had before it not only the Appellant’s fingerprints found upon the charred religious picture, but additionally, the fact that the fingerprints had been recently placed thereon; that the picture was found in a place where it did not belong; and that no other persons than members of the teaching staff were permitted in the area where the picture with the Appellant’s fingerprints thereon was found. We are of the opinion that there was adequate evidence to support the jury’s finding that the Appellant’s fingerprints were impressed on the picture at the time the crimes of arson and burglary were committed.

The Appellant’s argument that the “verdict of guilty of arson must have been predicated on speculation” is not persuasive. Fire Department experts testified that the fire did not result from natural causes but was of an incendiary origin; and there was ample evidence from which the jury could infer that the Appellant “wilfully and maliciously” set the fire. Md. Code, Art. 27, Sec. 6; McDowell v. State, 231 Md. 205.

Likewise, we find no merit in the Appellant’s argument that since nothing was found to be missing, there could be no burglary. The crime of burglary consists of the breaking and entering of the dwelling house of another in the nighttime with intent to commit a felony. Hall v. State, 1 Md. App. 392. A church may be the subject of common law burglary. McGraw v. State, 234 Md. 273; Dortch and Garnett v. State, supra. Here the open entrance door which had been secured earlier was evidence of the breaking; the fingerprints of the Appellant and the other evidence demonstrated that the Appellant had entered; and the arson was certainly evidence of an intent to commit a felony. It is well settled that in prosecutions for burglary, intent may be inferred from the circumstances. Irving v. State, 230 Md. 364.

Judgment affirmed.

      . The State suggests that the sentence of fifteen years imposed in connection with the Appellant’s conviction of arson exceeds the maximum provided in Md. Code, Art. 37, Sec. 7-—burning of a church. It is clear, however, that he was convicted of violating Art. 37, Sec. 6—common law arson, which provides for a maximum-, sentence of twenty years. The common law definition of a dwelling house encompasses a church. Dortch and Garnett v, State, 1 Md. App. 173.


text:
    STATE OF MARYLAND v. GEORGE J. PANAGOULIS
    [No. 127,
    September Term, 1967.]

      Decided March 12, 1968.

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

      Prank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George’s County, and Vincent J. Femia, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      J err old V. Powers, with whom was Edward J. Bagley on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

On February 6, 1967 two indictments were returned against the appellee charging that he bribed and conspired to bribe a member of a municipal corporation of this State. lie moved to dismiss the indictments and, after hearing, the motions were granted by the Circuit Court for Prince George’s County, the court finding that the appellee was immune from prosecution. The State appealed.

Evidence was adduced at the hearing to show that a “congressional candidate” had presented information to the grand jury of Prince George’s County concerning alleged irregularities in zoning matters and that among those persons alleged to be “involved” was the appellee. In a newspaper article admitted in evidence it was stated that the State’s Attorney said that “every name” given by the informant would be questioned by the grand jury. The appellee testified that he was aware of this. He said that on November 3, 1966, Vincent J. Femia, then an Assistant State’s Attorney for Prince George’s County, called him about making a statement to the State Police investigators. Later that day, about 11:30 P.M., Femia again called the appellee, who, as a result of the call, went to the Seat Pleasant Station, arriving there about midnight. Femia and two State Police corporals were present. He was interrogated “on matters pertaining to these zoning irregularities” for about two and one-half hours. At the conclusion of the interrogation the appellee asked Femia “if it would be necessary for me to appear before the Grand Jury since I had already given this testimony to the police officers, and he answered yes * * * I then asked him when and he said, ‘this morning.’ ” The appellee called Femia about 9:15 A.M. on November 4th, and Femia asked him to “come down.” He met Femia at the police office and they went to the grand jury room by way of the “back door” to avoid publicity. The appellee testified before the grand jury on the zoning matters. A transcript of a part of the proceedings before the grand jury was read into evidence. It showed that the appellee was sworn and requested that he be permitted to make an opening statement. His remarks were transcribed as follows

“May I say that at the outset I wish to express my sincere appreciation to the staff of the State’s Attorney’s Office—excuse me—the staff of the State’s Attorney, Mr. Marshall, Mr. Femia, and to the members and foreman of the Grand Jury for affording me this opportunity to appear before you this morning to clarify any allegations that may have been made concerning me in the past several weeks. I previously had instructed my accountant to make all his records available to you. I gave your investigators a very comprehensive statement as early as this morning and turned over any records that I had to them for any verification of any facts, and I shall try to answer any questions that may be propounded to me as truthfully and as conscientiously as I possibly can.”

At the hearing in the instant case the appellee testified that he had appeared before grand juries at least twice a year since 1955 and always made an introductory statement similar to the one he made on November 4th.

Femia’s testimony confirmed the circumstances surrounding the interrogation of the appellee in the early morning hours of November 4th. His recollection was that the appellee said upon the conclusion of the interrogation, “Would it help if I appeared before the Grand Jury?” Before receiving a reply, the appellee changed the question to “Would it help the Grand Jury if I appeared before the Grand Jury?” Femia replied, “Well, to tell you the truth, George, from what I heard tonight it sure can’t hurt you and it has to help them, any information they can get.” He denied telling the appellee that it was necessary for the appellee to appear before the grand jury and did not recall the appellee asking if it was necessary for him to go before that body. “But I do know this, that at no time did I indicate that he had to testify. At no time did I indicate this-to him. Now, I have been a prosecutor long enough to know that if a man stands accused of anything the last place you take him is in the Grand Jury room. That sort of puts you out of business.” The Court said to Femia, “As I understood a while ago (the appellee) didn’t in so many words say, “I want to go before the Grand Jury,” and Femia replied, “that is correct, not to me anyway.”

Each of the State Police officers present during the interrogation of the appellee had some recollection of the conversation between Femia and the appellee about the grand jury. Neither could recall the exact words. One said that the 'appellee “said something to the effect that he wanted to appear and get this whole mess straightened out.” The other stated he heard the appellee saying that “he was anxious to clear this matter up, that he wanted to do anything possible to clear the matter up, and that he was — wanted to know if he could help the Grand Jury in any way by testifying, and that he was anxious to testify before the Grand Jury if that •would help in any way clear it up.”

Arthur A. Marshall, Jr., the State’s Attorney for Prince 'George’s County, testified that during the investigation the ■ appellee offered “to turn over all his books and records, I 'think he did, and income tax statements. I believe he has ■done that. He offered to meet with these State Police investigators, and I do know offered to do anything that was •possible to bring this to a conclusion.” Between October 25, 1966 and November 4, 1966 during a telephone conversation between Marshall and the appellee, the appellee asked “* * * 'if there was anything he could do, and he offered to come "before the Grand Jury or do anything further that he could ■possibly do to cooperate. I think his words would have been ■something to the effect like, ‘Would it help to come before the Grand Jury, would it satisfy them,’ and I think my response would have been something like, ‘It certainly wouldn’t ‘hurt you.’ ” Marshall said he never directed the appellee to -appear before the grand jury, did not issue a summons for him to appear and did not, either by letter or orally, direct 'his appearance.

It is clear that the appellee appeared before the grand jury ■of Prince George’s County on November 4, 1966 and testified. We think, and it is not contended to the contrary, that 'his testimony was with regard to the investigation by the ■grand jury of zoning matters, and that the indictments returned against him were a result of that investigation. The ■question is whether the appellee was exempt from proseention, trial and punishment because he appeared before the grand jury and so testified.

On March 30, 1868 the General Assembly approved Chapter 369 of the Acts of 1868, enacted in compliance with the requirements of Article 3, § 50 of the Constitution of Maryland of 1867. As now codified, with amendments, in Md. Code (1967 Repl. Vol.), Art. 27, § 23, it proscribes, in part here relevant, bribing public officials, including a member of any municipal corporation of this State, and the demand or receipt of a bribe by such officials. The section continues:

“and any person so bribing * * * or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses ; provided, that any person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify.”

The exemptions in § 23 extend to proceedings before grand juries. Brown v. State, 233 Md. 288. In resolving the question, therefore, it must be determined whether the appellee was compelled to testify, and, if so, whether, under the circumstances present, he obtained immunity. We think that State v. Comes, 237 Md. 271, is controlling.

THE COMPULSION OF THE WITNESS

In State v. Comes, supra, the Court had before it whether a subpoena was an indispensable factor in compelling a witness to testify under the statute. It said, p. 278:

“Many lengthy and able opinions have been written dealing with the compulsoriness or the voluntariness of the disclosure made. However, we see no necessity for laboring this question unduly. The following is, we think, a short but complete answer thereto. Every person is presumed to know the law; hence, the appellee, once he got before the grand jury whether by subpoena or otherwise, presumptively knew that he was subject to contempt proceedings and imprisonment, if he refused to answer questions relative to the bribery laws. Brown v. State, supra. As we stated in Sullivan v. Sullivan, 234 Md. 67 (a divorce case):
‘Acquiescence to or assent to what one cannot prevent does not amount to a voluntary agreement thereto.’ ”

We must take this language to mean what it clearly says. Therefore, with regard to the question of a witness being compelled to testify, it is immaterial how he got before the grand jury. Once he is there, is sworn and testifies, he has been compelled to testify within the meaning of the statute. We hold that the appellee was “compelled to testify in behalf of the State.”

THE IMMUNITY OE THE WITNESS

It does not necessarily follow, however, that although a person is compelled to testify within the meaning of the statute by the fact of the grand jury receiving his testimony relevant to the matter before it, that such person is always exempt from prosecution on such matters.

Both Article 22 of the Maryland Declaration of Rights and the Fifth Amendment to the Constitution of the United States provide, although in slightly different language, that no person shall be compelled to give evidence against himself in a criminal case. In Malloy v. Hogan, 378 U. S. 1, the Supreme Court held that the protection of the federal constitution’s privilege against self-incrimination flowed to the states through the Fourteenth Amendment. But even before the decision in that case, the Court of Appeals of this State, in Brown v. State, supra, held that the two constitutional provisions against self-incrimination were in pari materia and should receive a like construction. The statute, here under consideration, by its express terms, not only makes a person a competent witness in bribery cases, but compels him to testify. It thus takes away his constitutional privilege against self-incrimination when he is compelled so to testify and grants him an immunity from prosecution, trial and punishment in place of the privilege. Such a statute is valid if its effect is to grant protection as broad as that afforded by the privilege which it displaces. Art. 27, § 23 has been held to afford such protection. Brown v. State, supra, p. 297. “Immunity” and “privilege” are therefore not interchangeable terms and it is necessary to distinguish between them. Wigmore, Evidence (McNaughton Rev.) Yol. VIII, § 2281 “points out that ‘immunity’ signifies the beneficial result to the offender, i.e., the nonliability of the offender for the offense itself, while ‘privilege’ denotes the noncompellability to speak about the offense. In other words, by an immunity the offender’s guilt ceases; under a privilege it continues.” State v. Comes, supra, pages 275-276. It is within such frame of reference that the holdings in Comes come in focus. Comes held that under the statute here involved it was not necessary that a witness claim his privilege against self-incrimination in order to obtain the exemption afforded by the statute. We think it obvious that as the statute takes away the privilege, the witness cannot lose the immunity granted by the statute by failing to assert a privilege not available to him. The Court concluded its opinion in State v. Comes, supra, by saying, p, 282:

“In making this ruling, we are not to be understood as intimating that no witness, who appears before a grand jury and testifies, may not do so ‘voluntarily’. Instances have been known where witnesses, either by subterfuge (such as a witness using another witness’ subpoena), collusion, or otherwise have appeared before grand juries and testified for the specific purpose of attempting to obtain immunity. No such question is raised herein (and we leave all questions of this nature open) ; the appellee, in good faith, responded to the radio call to appear before the grand jury, was sworn, and testified under oath.”

Although the Court in making the statement referred to the appearance of a witness “voluntarily”, we think it clear from the opinion that it was not then considering the question of the compellability of a witness but the question of immunity afforded him; the appearance of a witness before a grand jury for the specific purpose of attempting to obtain immunity under the circumstances set forth by the Court would result in a waiver, by reason of his conduct, of the immunity to which he would be otherwise entitled. AVe note that the Court referred to instances where witnesses appeared before grand juries “by subterfuge * * *, collusion, or otherwise”, (emphasis added) and testified for the specific purpose of attempting to obtain immunity. We think, therefore, that there may be instances other than “subterfuge” and “collusion” whereby a witness waives his immunity. Even a constitutional right may be waived. Cohen v. State, 235 Md. 62, 70, cert. den. 379 U. S. 844; Goetzke v. Warden, 1 Md. App. 3, 7 and cases therein cited. We feel that a witness may waive his immunity, expressly or by his conduct.

The appellee did not expressly waive immunity from prosecution with respect to his appearance on November 4th. The lower court found as a fact that there was “no such * * * ‘subterfuge, collusion’ or the like to get in the grand jury room for the sole ptirpose of obtaining immunity” and from the record before us, we agree. We also think that there were no other circumstances shown sufficient to establish that the appellee otherwise waived immunity by his conduct. That he may have hoped to convince the grand jury that he was in no way culpable and so prevent an indictment from being returned against him or that, in the words of the lower court, “his hope in going before the grand jury was to help himself,” are not sufficient to constitute a constructive waiver of immunity. Nor may he be denied the immunity because he in fact knew or was presumed to know the law and was thus aware that if he testified under the circumstances here present, he would be exempt from prosecution. The grand jury and the prosecuting authorities are also presumed to know the law, and when the appellee was permitted to testify without an express waiver of immunity by him, he was then, under the circumstances existing, in the absence of conduct on his part sufficient to constitute a waiver, exempt from prosecution, trial and punishment. The lower court did not err in granting the motions to dismiss the indictments.

Order dismissing the indictments affirmed; county commissioners of Prince George’s County to pay costs.

      . According to the clerk charged with the ministerial duty of scheduling and arranging for the appearance of witnesses before the grand jury, the name of the appellee was not on her list of witnesses for November 4, 1966 and she did not know that he was to appear that day.

      . Within the context of the question, we consider the phrase “exempt from prosecution, trial and punishment” to be synonymous with the word “immunity” and use them interchangeably in this opinion.

      . The immunity granted by the statute is a broad one. “It effectively bars the use of ‘leads’ to convict the witness of the offense as to which he testifies, and it covers the offense of attempting to bribe as well as actual bribing. We further think that the broad language referring to ‘any such crime of which’ he ‘may have been guilty’ may fairly be construed and should be construed as including conspiracy to violate the bribery law; but even if it were not, this gap in statutory protection would be closed by Section 39 of Article 27.” Brown v. State, 233 Md. 288, 297-298.
      Code, Art. 27, § 39 provides for immunity to like effect with regard to conspiring to commit the offenses set forth in § 23, (and also subtitles “Gaming” and “Lotteries”). Brozvn, note 2 at p. 294, lists other statutes in this State dealing with compellability of testimony and grant of immunity, noting that the language is not uniform.

      . In Comes the appellee was not subpoenaed but appeared before the grand jury and testified after receiving a radio call from the dispatcher’s office of his employer. The dispatcher received his order to call the appellee from the Assistant State’s Attorney, who in turn, had been directed by the grand jury to secure the appellee’s attendance. The Court held that the appellee did not appear before the grand jury voluntarily.

      . Although not material to his compellability, the circumstances of his appearance may be material to a determination of whether he waived immunity as hereinafter discussed.

      . Malloy v. Hogan was decided June 15, 1964 and Brown v. State was decided January 13, 1964.

      . Absent a statute compelling a witness to testify and granting him immunity if so compelled, if he wants the privilege he must claim it. Neither the State nor the federal constitutional provision precludes a witness from testifying, voluntarily, relative to matters which may incriminate him. See United States v. Monia, 317 U. S. 424; Gamble v. State, 164 Md. 50.

      . The Court asked Femia why a written waiver was not obtained and in explanation P'emia said:
      “Sir, very simply, we - - - he asked us, we didn’t ask him. And, Judge, remember, he is the Chief of Police.
      The man asked us to come and testify before the Grand Jury. To have this man sign a written w^aiver - - - you are asking me why, I am telling you why - - - in my opinion it would have been quite embarrassing. The man is a friend of all of us and had been * * * I can’t assign any particular reason, Your Honor, except that it was by his request that he was going in there.”
      Femia also agreed, however, as hereinbefore noted, that the appellee did not say to him, in so many words, “I want to go before the Grand Jury.” AVe note that the appellee also appeared before the grand jury at a time subsequent to November 4, 1966. At his subsequent appearance he signed a waiver of immunity.