text:
    BURL BRADBURN, JR. and JOHN GIPE v. STATE OF MARYLAND
    [No. 228,
    September Term, 1967.]

      Decided June 3, 1968.

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

      Alexander Yankelove and Michael L. Kaplan for appellants.

      Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and Joseph Raymond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellants Gipe and Bradburn were convicted by a jury of larceny of a metal stand and attached poor box (poor box), of robbing a police officer of his espantoon and revolver, and of assault with intent to murder the officer. Each appellant was sentenced to a term of twenty-one and a half years under the jurisdiction of the Department of Correction.

The first contention on appeal is that there was a denial of a speedy trial because the trial was not held as scheduled on February 14, 1967, but postponed to February 20, the six-day lag having been granted at the instance of the State. The contention approaches the frivolous. Pachmayr v. State, 1 Md. App. 270.

Appellants’ claim that the evidence was insufficient to convict is also lacking in merit. The appellants and one Halcomb were accosted by policeman Custis at about 5 :00 a.m. on May 2, 1964, near or in an alley running east and west through the unit block of Collington Avenue in Baltimore in possession of the poor box (which they abandoned when they fled after beating the officer). St. Andrews The Apostle Russian Orthodox Church (which it was stipulated is a corporate entity) is not far away. The sexton testified the poor box had stood in the vestibule of the church for twenty years; that the deposits made in it were collected and twice a year given to orphans by the church; and that the box “belongs to the vestibule of the Church,” and was in the church at 1:00 a.m. on May 2 but not at 4:30 a.m. This evidence permitted the jury properly to infer that the church had a property interest in the box of which the appellants had criminally deprived it. See Lee and Freeman v. State, 238 Md. 224, and Richardson v. State, 221 Md. 85. The box and stand were marked for identification but never, apparently from oversight, formally admitted in evidence. A picture of the box did come in without objection, various witnesses referred to it and described it, and the parties and the court seemingly assumed it was in evidence. The corpus delicti was proven, cf. Banks v. State, 228 Md. 130, and the possession of recently stolen property by the appellants sufficed to support a finding that they had stolen it. Anglin v. State, 244 Md. 652; Chittum v. State, 1 Md. App. 205.

The police officer testified that as he was about to take the trio into the station house, and had taken hold of one of them, he was knocked to the ground from behind and his espantoon and revolver were taken from him. All three continued to hit him, beat him with stick and fists and kick him as he lay on the ground. He was hit on the head repeatedly with his own stick and shot in the face with his own pistol. He was kicked by all three in the face, back and arms. He was taken to the hospital a bloody mess and kept for treatment of multiple lacerations and contusions, including head wounds which required many stitches, and a broken knee.

Appellants argue that the arrest was illegal and their use of force to resist it was justified. If it be assumed that the arrest was illegal, the evidence clearly permitted the jury to find that there had been used entirely unnecessary and excessive force, sufficient to show malice and an intent to kill. See Jenkins v. State, 232 Md. 529, at page 534.

The espantoon was later found by the police not far from the place of the assault. Halcomb’s mother testified that in the ■early morning hours of May 2:

“Earnest [her son] and Johnny [Gipe] and Brad-burn ‘had one [a gun like that shown her which had been proven to have been that of the assaulted officer] at my house * * *. Bradburn rolled a gun up in a handkerchief and I took the gun and threw it away.’ ”

(She threw it in the sewer, and later took the police to recover it.) There was enough to permit the jury to infer that appellants had a larcenous intent in forcibly taking the espantoon and pistol from the officer. Hadder v. State, 238 Md. 341, 354, 355; Midgett v. State, 216 Md. 26, 42.

The appellants complain that the trial judge did not rule as a matter of law that the arrest was illegal. It is not clear that he was requested to do so or that there was any necessity for him to do so, but if he considered such a ruling it was in connection with the admissibility of the poor box, the espantoon and the revolver. He found it unnecessary in this context to make a ruling because nothing was seized as a result of the encounter of the officer with the appellants, the box having been abandoned at the scene, and the espantoon and revolver having been later discarded. In its charge to the jury, the court in effect advised the jury that the arrest had been illegal and put to them the question of the use of excessive force. We find no substance to this contention.

Appellants’ final contention worthy of discussion is that the court’s instructions on joint criminal liability were prejudiciously erroneous. The claimed grievance, in reliance on Agresti v. State, 2 Md. App. 278, is that the court told the jury that appellants could be found to be principals in the second degree without specifying that there must be a prior finding of a principal in the first degree. The charge advised the jury that:

“* * * it is not necessary * * * that you determine actually who wielded the nightstick or actually took the nightstick from the person of Officer Custis or who actually took the gun from the officer or who actually handled the gun and when these actions were done if you find that these actions were a joint venture or a joint action or a joint effort of * * * [the] two defendants * * * anyone who aids and abets in the commission of a felony is as liable as anyone else who takes an active part in that act, limited only by the fact that mere presence at the scene without doing anything else is not sufficient to convict.
“If you find this was a joint effort, that the two defendants actively participated in and abetted that joint effort it is not necessary for you to determine who actually did what specific act.”

We cannot see how any hurt could have come to the appellants from the charge. The evidence is quite clear that Gipe* Bradburn and Halcomb all were active participants in the assault and robbery of the officer and so were more than accessories. Agresti is not controlling. All those who participate in a felony are equally guilty. Boone v. State, 2 Md. App. 80; McEntire v. State, 2 Md. App. 449.

Judgments affirmed.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    GEORGE MORRIS v. STATE OF MARYLAND
    [No. 249,
    September Term, 1967.]

      Decided June 3, 1968.

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

      Harold Buchman for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Brands B. Burch, Attorney General, William B. Whiteford, Assistant Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Allan B. Lipsom, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The Appellant was convicted of obtaining money under false pretenses from the Baltimore City Welfare Department on the basis of testimony which established that while he was receiving Welfare payments under the name of George Chesnut, he failed to notify the Department that he was at the same time receiving income from gainful employment under the name George Morris.

As a part of its proof that the Appellant on occasion had used the name George Morris, the State offered in evidence several statements which were produced by an attorney who had formerly represented the Appellant in a civil matter, which statements bore the signature, George Morris. Also, the attorney’s receptionist was pemitted to testify, over objection, that the Appellant was known to her both as George Morris and as George Chesnut and that the office files indicated that he used both names. The Appellant asserted that his real name was George Chesnut and he denied ever having used the name George Morris. He admitted, however, that the attorney who produced the statements had previously represented him in a civil matter.

In this appeal, it is contended that the introduction of statements bearing the signature George Morris and the testimony of the receptionist identifying the Appellant as George Morris- and George Chesnut were in violation of the confidential relationship between attorney and client. The statements were offered not for their substance but solely for the purpose of identifying the Appellant as a client who had represented his name to be George Morris. Thus, the question for determination is-whether the identity of a client is protected by the privilege which ordinarily attaches to communications arising out of the attorney-client relationship. While the issue appears to be one of first impression in this State, it has been the subject of decision in a number of jurisdictions throughout the Country.

The principle of the attorney-client privilege is grounded in the common law, and, according to Professor Wigmore, its history goes back at least to the reign of Elizabeth I. See 8 Wigmore, Evidence, Sec. 2290 (McNaughton, rev. 1961). In some States the privilege has been recognized and regulated by statute ; but by and large, the common law principle has remained unchanged even in those states which have enacted specific statutes since they have been interpreted as simply reflecting the common law doctrine. Professor Wigmore phrases the principle as follows (supra, Sec. 2292) :

“(1) Where legal advice of kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.”

It is apparent from the foregoing statement that what is sought primarily to be protected are the communications between the client and the attorney, the modern theory being that an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor. Miller, The Challenge to the Attorney-Client Privilege, 39 Va. L. R. 262, 268 (1963). However, since resort to the privilege obviously tends to stifle the truth, which is-what courts are seeking to ascertain, the privilege is not without limitations. See McCormick, Evidence, Sec. 94. Thus, in Coulton v. United States, (C.C.A. 2d) 307 F. 2d 633, Cert. Den. 371 U. S. 951, Chief Judge Lumbard, after reciting the attorney-client privilege, stated (p. 637) :

“But, although the word ‘communications’ must be broadly interpreted in this context, see 8 Wigmore, Evidence, Sec. 2306 (McNaughton, rev. 1961), the authorities are clear that the privilege extends essentially only to the substance of matters communicated to an attorney in professional confidence. Thus the identity of a client, or the fact that a given individual has become a client are matters which an attorney normally may not refuse to disclose, even though the fact of having retained counsel may be used as evidence against the client.”

It appears, therefore, to be well settled that “the rule making communications between attorney and client privileged from disclosure ordinarily does not apply where the inquiry is confined to the fact of the attorney’s employment and the name of the person employing him since the privilege presupposes the relationship of client and attorney and therefore it does not attach to its creation.” See collection of cases in Anno.—Disclosure of Client’s name or business, 114 A.L.R. 1332. See also 3 Wharton’s Criminal Evidence, Sec. 809 (Anderson’s Edition); Wigmore, supra, Sec. 2313; McCormick, supra, Sec. 94; 97 C.J.S. Witnesses, Sec. 283 e.

Most of the authorities agree that there may be special circumstances under which the revelation of a client’s identity may violate the attorney-client privilege, as for example, where so much of a confidential communication has already been disclosed that revealing the identity of the client would amount to a full disclosure of the confidential communication. NLRB v. Harvey, (C.C.A. 4th) 349 F. 2d 900. In the case at bar, however, no special circumstances are present. We think it is clear that the substance of the statements upon which the Appellant’s signature appeared was not placed in evidence, the purpose of offering them being solely to identify the Appellant. His objection goes only to the signatures which constituted evidence that the Appellant had previously represented his name to be George Morris and which afforded an opportunity to compare those signatures with those of the endorsements on the Welfare checks and the employers checks. It is apparent, therefore, that the revelation of the Appellant’s identity by the attorney’s receptionist and the production of the Appellant’s signatures, under the circumstances here existing, did not constitute a violation of the confidential relationship' between the Appellant and his previously employed attorney and, accordingly, his objection to their admission is without merit.

Judgment affirmed.


author: Murphy, C. J.,

text:
    JOHN RHODES McGHEE v. STATE OF MARYLAND
    [No. 257,
    September Term, 1967.]

      Decided June 3, 1968.

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

      Benjamin L. Brown for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and John H. Lewin, Assistant Stale’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted by the court sitting without a jury of (a) daytime housebreaking committed on May 23, 1967, and (b) with being a rogue and vagabond on June 2, 1967. He was sentenced to five years under the jurisdiction of the Department of Correction for the housebreaking offense and was given an eighteen-month consecutive sentence under the rogue and vagabond charge. He contends on this appeal that the evidence was insufficient to support either conviction.

The Housebreaking Offense

There was evidence adduced at the trial to show that Joseph Kutlik left his home on May 23, 1967 at approximately 9:20 a.m. with his wife to go shopping, securing the house as he left; that when they returned approximately one hour later, they found the glass in the door broken, the house ransacked, and certain items taken; that a locked strong box owned by Mr. Kutlik, and located in his second floor back room in a chiffonier, had been pried open; and that two latent fingerprints, removed from the strongbox by the police on the day of the crime, were identified as those of the appellant. Appellant denied having committed the crime and testified that when the police questioned him on June 14 about the offense, he was caused to place his hands on the box, thus explaining the presence of his fingerprints. There was evidence that the fingerprint comparison had been made prior to June 14.

It is well settled that fingerprint evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. See McNeil v. State, 227 Md. 298. In Lawless v. State, 3 Md. App. 652, we concluded that such “other circumstances” need not be those completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. We there said:

“A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent.”

To like effect, see Mills v. State, 3 Md. App. 693; McCargo v. State, 3 Md. App. 646; Hannah v. State, 3 Md. App. 646; Musgrove v. State, 3 Md. App. 54.

The evidence showed that the victim did not know the defendant and had never seen him before the crime. The strong box upon which appellant’s fingerprints were found was an object of such character, and so located within the victim’s home,, that we conclude that the evidence of appellant’s fingerprints, was sufficient in the circumstances of this case to support the conviction, the breaking being clearly established, and the time between such breaking and the discovery of the crime being a little more than one hour.

The Rogue and Vagabond Conviction

The evidence showed that on June 2, 1967 at approximately 10:30 a.m., Detective Moore was driving his vehicle when he-observed an individual, later identified as Mark Davis, on the porch of 2544 Boarman Avenue in Baltimore City. He also then observed the appellant standing on the street alongside the house. Moore made a U turn, coming back to the scene and, after observing Davis place his hands on the door, called him over to ask what he was doing. Davis told the officer that he-was looking for James Montgomery. At this time, Moore observed a combination hammer and screwdriver sticking out of Davis’s pocket.

It was established at the trial that no James Montgomery lived at 2544 Boarman Avenue and no one by that name was-known in the neighborhood. It was also established that when Detective Moore passed the appellant, he was going in a northerly direction and that when the officer made his U turn, appellant turned around and proceeded in a southerly direction.

Mrs. Anne Inbinder, whose home is directly across the street from the above mentioned address, testified that on the morning in question, she was sitting in her living room and observed through her window appellant and Davis go up to the porch at 2544 Boarman Avenue. One remained on the porch and the other walked a short distance away, keeping watch on the house.

Mrs. Bertha Dieterway, another eyewitness, testified that she saw both men walking down the street together and that Davis went on to the porch and appellant went to the back yard.

Appellant testified on his own behalf that he resided in the •area and that he was returning from a shoe shop; that he had been with Davis earlier, and that when he saw him on the porch, he stopped and waved; and that he had no knowledge of any intention of Davis to burglarize the premises or to act in •concert with him.

In finding appellant guilty of being a rogue and vagabond, the trial judge stated that the evidence proved to him that Davis was about to break into the house when he was observed by Moore; that Davis had a typical burglar’s tool upon him when : apprehended, namely a hammer with a screwdriver built into it, with a deafening device on the striking part of the hammer; that appellant’s participation in the crime was as an accomplice; and that he was a lookout. As there was evidence showing that appellant was on the porch of the home with Davis, and later was seen in the back yard, and that Davis had a burglarious •implement in his possession, we think the conviction could, under the circumstances, have been based upon that part of the rogue and vagabond statute (Section 490 of Article 27 of the Maryland Code) proscribing any person from being found “in or upon any dwelling house * * * or in any enclosed yard or .garden or area belonging to any house, with an intent to steal any goods or chattels, * * See Thomas v. State, 1 Md. App. 528; Allen v. State, 2 Md. App. 740. We also think that ap-pellant was properly convicted under that part of the rogue and vagabond statute pertaining to the apprehension of any person "having “upon him,” inter alia, implements “at places and under circumstances from which an intent may be presumed feloniously to break and enter into any dwelling house, * * In 'this connection, we have held that it is not necessary to prove actual physical possession of such burglarious instruments at the time of the arrest, an inference drawn from proper evidence sufficing to establish the requisite elements of the offense. See Shipley v. State, 243 Md. 262; Woodell v. State, 2 Md. App. 433; Thomas v. State, supra. Appellant’s involvement with Davis on the porch of the home and his subsequent actions at the scene of the crime, including the fact that he was observed' walking up and down the front of the house in such a manner as to suggest that he was a lookout, are evidentiary factors giving rise to an inference that appellant shared a common criminal purpose with Davis, namely to break into the house in question, and, consequently, appellant would properly be chargeable with having “upon him” the burglarious implement actually found upon appellant’s confederate Davis at the time of that individual’s arrest. See also Day v. State, 2 Md. App. 404; Allen v. State, 2 Md. App. 740.

Judgments affirmed.


author: PgR Curiam.

text:
    NATHANIEL ELWOOD BROWN v. STATE OF MARYLAND
    [No. 243,
    September Term, 1967.]

      Decided June 4, 1968.

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

      Frank Cannizzaro, Jr., for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State's Attorney for Baltimore City, and I. Elliott

      Goldberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   PgR Curiam.

On May 25, 1967, the appellant, Nathaniel Ellwood Brown, was convicted of murder in the second degree in the Criminal Court of Baltimore by Judge James A. Perrott, sitting without a jury. On June 6, 1967, appellant’s Motion for a New' Trial was denied and he was sentenced to thirty years imprisonment under the jurisdiction of the Department of Correction.

Appellant raises three contentions on appeal.

1. That his oral statements were inadmissible in view of Miranda.

2. That the lower court erred in not accepting the defense of self-defense.

3. That the evidence was insufficient to sustain the conviction.

From the evidence adduced at the trial the court could properly find that Daniel Clay was shot to death by the appellant on September 12, 1966, in front of 1413 Pennsylvania Avenue, Baltimore, Maryland.

An autopsy report, submitted into evidence by stipulation, established that the deceased, Daniel Clay, age 23 years, Negro male, 6' 9" tall, weight 157 lbs., died as the result of multiple gunshot wounds of the chest, causing a massive internal hemorrhage.

The State’s first witness was Officer Carl Johnson who testified that upon receiving certain information regarding a shooting, he investigated and found the deceased lying on the sidewalk, with his head and shoulders leaning against the building at the above address, and that no weapon was observed upon the deceased nor within the vicinity of his body. He further testified that he called an ambulance and was unable to ascertain the identity of the assailant.

The State’s second witness was Joyce Worley who testified that she and Annie Williams were in the vicinity of the shooting when they heard a shot. As they ran to the scene, they bumped into the appellant, whom they knew well and positively identified, and were informed by him that he had shot her cousin, the deceased.

The State’s next witness was Annie Williams whose testimony fully substantiated the aforenoted testimony of Joyce Worley.

The State’s next witness was the deceased’s mother, Eaura Clay, who testified that on the date in question, the appellant came to her house seeking out the deceased for the' expressed purpose df apologizing to him for an argument they had the previous night. After waiting a short while, he left.

The State’s final witness was Detective William Schneeman who testified that while sitting in his office on September 14, 1966, at about 9:10 p.m., the appellant came to his office door and stated, “I’m Fish. You are looking for me.” He further stated to the effect, “I shot and killed that man.” Detective Schneeman responded, “What?” and invited the appellant inside. The appellant continued his explanatory statement, without interruption, “I want to tell you about it. My mother told me come in and get it squared away.” Appellant then entered and sat down and was informed that the officers would like to go over the statement again, “get it written down, advise you of your rights, and get a written statement.” Appellant was then informed of his Miranda rights, excepting the warning that anything he said could and would be used against him in a court of law.

After reviewing the question of voluntariness, the trial court excluded the written statement, while admitting the oral statement.

Appellant, testifying in his own defense, stated that he was 29 years old, 5' 7" tall, weighing 106 lbs., and admitted shooting the deceased, but urged the court to find that he had acted in self-defense. As background to the shooting, the appellant testified that he owed the deceased $85.00 for some drug purchases, plus an additional amount for some drugs he had agreed to sell for the deceased but had converted the drugs to his own use instead. It was over this owed money that the prior argument arose and the deceased knocked the appellant to the ground and kicked him. It was allegedly to repair the friendship from this altercation that the current confrontation arose. After the appellant admitted that he was in the wrong and told the deceased that he had spent the money which he previously had for him, the deceased stated, “I’m tired of this” and reached for his back pocket while asking, “Where’s my money ?”. Deceased then, according to the appellant, “hit me on my shoulder, knocked me down, went to kick me, going in his back pocket. Before I know it, I come out with the gun, shooting, getting away from him. He was still coming. I kept on shooting.” The gun was allegedly given to the appellant to sell earlier in the evening and he just happened to be carrying it at the time of the attack.

Appellant’s testimony regarding the circumstances surrounding the oral statement, was diametrically opposed to that of Detective Schneeman. Appellant contends that upon entering the police station, he approached an officer and stated, “I’m inquiring about a murder I’ve been accused of.” Thereupon, another officer was summoned and he began questioning the appellant and invited him into an office. Appellant urges that he initially refused to give a statement because he was “under the influence of narcotics and I would rather see a lawyer before I give a statement or anything.” He stated that thereafter the officer continued to urge him to give a statement, since he said he didn’t do it, and that thereafter, due to his groggy condition and the officer’s persistence, he finally gave in and made the desired statement.

Detective Schneeman testified again on redirect. After reviewing the contradictory testimony addressed to the circumstances surrounding the oral statement, the trial judge, in performing his duty of judging the credibility of the witnesses, found that Detective Schneeman’s version was the credible one. McRae v. State, 3 Md. App. 388, 393, 239 A. 2d 607, 610 (1968).

Appellant’s first contention urges that the oral statement was inadmissible owing to the failure of the police to interrupt the appellant after the initial statement, “I’m Eish, I shot that man,” and fully advise him of the warnings enunciated in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

It is well settled that under Miranda volunteered statements or “blurts” are admissible. Carrington v. State, 1 Md. App. 353, 357, 230 A. 2d 112, 114 (1967) citing Campbell v. State, 244 Md. 363, 366, 223 A. 2d 604, 606-607 (1966); Carwell v. State, 2 Md. App. 45, 50, 232 A. 2d 903, 906 (1967).

We think it clear that the oral statement was not obtained by a “custodial interrogation.” In discussing the procedural safeguards set forth in Miranda, we stated in Carwell v. State, supra, at page 50:

“We held in Gaudio and Bucci v. State, 1 Md. App. 455 that those safeguards applied to statements made during a ‘custodial interrogation’ and that Miranda did not protect an accused ‘under any and all circumstances * * * to the extent that no inquiry at all by the authorities is permissible without prior warning.’ In the instant case there was not even an inquiry by the police; the appellant simply ‘blurted out’ the statement to which objection was made.”

The Miranda mandate directs absolute compliance with the prerequisite minimal standards set forth therein where the appellant is being subjected to custodial interrogation. Tillery v. State, 3 Md. App. 142, 147, 238 A. 2d 125, 128 (1968). However, this protective shield addresses itself to the “custodial interrogation” of the accused and is not so all persuasive as to compel the police officers to interrupt the spontaniety and continuity of volunteered statements. As was stated in Miranda, supra, at page 478:

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. * * * There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding, today.”

Here, it affirmatively appears from the record that the appellant voluntarily presented himself at the Baltimore City Police Department’s Homicide Division and, prior to his being placed in custody, and before he could be advised of his constitutional rights embodied in Miranda, gave the oral statement which was introduced at trial. Based upon the totality of circumstances surrounding the procurement of the statement, we are of the opinion that appellant’s spontaneous utterance, upon voluntarily presenting himself in conjunction with the absence of interrogation, is clearly within the realm of the permissible “volunteered statements” alluded to- in Miranda. See Parsons v. United States, 387 F. 2d 944 (10th Cir. 1968).

Appellant’s second and third contentions are totally devoid of merit.

That the appellant committed a homicide is beyond question. The medical report, admitted into evidence by stipulation, established that Daniel Clay had died at 7:55 p.m. on September 12, 1966, as the direct result of multiple gunshot wounds to the chest. Witnesses Joyce Worley and Annie Williams both testified that the appellant informed them, immediately after the shooting, that he had shot the deceased. Furthermore, upon surrendering himself to the police, the appellant voluntarily admitted shooting the deceased. Finally, the appellant elected to testify and admitted having shot the deceased, while urging that he was acting in self-defense.

It is well settled that the law presumes, in the absence of justification, excuse or some circumstance of mitigation, that all homicides are committed with malice and constitute murder. Williams v. State, 2 Md. App. 170, 176, 234 A. 2d 260, 263-264 (1967). Thereafter, the burden is upon the accused to prove that he acted in self-defense. Davis v. State, 237 Md. 97, 103, 205 A. 2d 254, 258 (1964).

As was stated in Davis v. State, supra, 104:

“An actual intent to take life is not necessary for a conviction of murder if the intent is to commit grievious bodily harm and death occurred in consequence of the attack.”

That Court also stated at page 103:

“The burden is upon the State to prove an unlawful killing, but the burden of proof of self-defense is upon the defendant. Perry v. State, 234 Md. 48, 197 A. 2d 833 (1964); Davis v. State, 204 Md. 44, 102 A. 2d 816 (1954).”

As was stated in Tipton v. State, 1 Md. App. 556, 232 A. 2d 289, 291 (1967) at page 560:

“In order to justify an assault on the basis of self-defense, the accused must have had reasonable grounds to believe, and have in fact believed himself to be in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant. The trier of facts must determine whether the accused was justified in meeting force with force. If justification is found to have existed, the force used against the assailant must not have been unreasonable or excessive, i.e., the defender must not have used more force than the exigency reasonably demanded.”

And in Ware v. State, 3 Md. App. 62, 237 A. 2d 526, 528 (1968), we again noted that:

“The law is clear that although a person may defend himself, even to the extent of taking life to repel the attack of an aggressor, it is equally well settled that he cannot use more force than is necessary.”

See also Gray v. State, 4 Md. App. 175, 180, 241 A. 2d 909, 912 (1968).

The trial court found that the appellant’s act constituted unjustified, unreasonable, and excessive force under the instant circumstances and therefore did not constitute self-defense.

The applicable test in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Speaks v. State, 3 Md. App. 371, 379, 239 A. 2d 600, 605 (1968); Anderson v. State, 3 Md. App. 362, 369, 239 A. 2d 579, 583 (1968); Montague v. State, 3 Md. App. 66, 72, 237 A. 2d 816, 820 (1968).

In non-jury trials the weight of the evidence and the credibility of the witnesses rests within the determination of the trial judge. McRae v. State, supra, 393; Anderson v. State, supra, 369; Lucas v. State, 2 Md. App. 590, 592, 235 A. 2d 780, 781 (1967). Furthermore, in non-jury trials, the trial court in performing its duty of judging the credibility of witnesses may disbelieve the exculpatory statements made by the defendant. Anderson v. State, supra, 369.

From the facts of this case the trial court could have found' adequate evidence for a conviction of second degree murder. See Smith v. State, 240 Md. 464, 481, 214 A. 2d 563 (1965); Davis v. State, supra, 104; Tate v. State, 236 Md. 312, 317, 203 A. 2d 882 (1964); Trout v. State, 3 Md. App. 259, 238 A. 2d 281 (1968); West v. State, 3 Md. App. 123, 238 A. 2d 292 (1968); Williams v. State, supra.

This Court cannot reverse a judgment of the lower court unless it is shown that there was no legally sufficient evidence, or proper inferences therefrom, from which that court could find the accused guilty beyond a reasonable doubt. Anderson v. State, supra, 371. Such prerequisite showing was not established in this case and we cannot say that the judgment of the lower court was clearly erroneous. Maryland Rule 1086; Speaks v. State, supra, 379; Anderson v. State, supra, 371; Lucas v. State, supra, 593.

Judgment affirmed.


author: Thompson, J.,

text:
    JAMES P. CORBETT v. STATE OF MARYLAND
    [No. 244,
    September Term, 1967.]

      Decided June 4, 1968.

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

      Richard W. Moore for appellant.

      Henry J. Frankel, Assistant Attorney General, with whom 'were Francis B. Burch, Attorney General, Charles B. Moylcm, ■Jr., State’s Attorney for Baltimore City, and Barry S. Frame, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

James P. Corbett, the appellant, was convicted of unauthorized use of an automobile, in the Criminal Court of Baltimore, in a trial before the court without a jury. Corbett complains that the lower court was clearly erroneous in considering facts not in the record. There were also other contentions which we need not consider.

The evidence adduced at the trial showed that on March 15, 1967 at about 3:30 P.M., Helen Smith reported to the police that her 1964 Oldsmobile had been stolen. An hour later, Of■ficer Garrity, while on radio car patrol duty, recovered the car. Garrity chased the automobile after the driver failed to obey a stop sign. At the end of the chase, the three occupants of the car fled from the scene; however, Officer Garrity did apprehend one of them — Corbett.

Two alibi witnesses testified for the defense; in addition Ronald Morgan made an in-court confession that he committed the crime but managed to elude the police officers in the alley in which Corbett was apprehended. He stated further that Corbett was not with him and had no part in the crime. In announcing his findings of fact the trial j udge stated:

“THE COURT: Well, gentlemen, I am going to hold this sub curia. . . .
“I think that as far as Morgan’s testimony is concerned, if he did do this, he’s done a very courageous and honest thing by coming forward and admitting that he did it. On the other hand, his prior record is not good. He casts some doubt upon the truthfulness of the testimony and I am worried and suspicious over the testimony that he was in the car with two other men or boys and he never knew their names and still doesn’t know who they were.
“There’s a lot of unusual things about this case and one thing is Morgan's testimony that he stole the car with two virtual strangers, whose names he’s never known, and they ran one way and he ran the other when the police caught up to them. If he did do it, he is doing a very honest and courageous thing, but his story has some loopholes in it, such as his ignorance of his two accomplices.”

Subsequently, when the judge announced his decision, after referring to the testimony of the police officer, the court said:

“THE COURT: We have that testimony, and then, of course, Morgan takes the stand and took the blame for the whole crime; that he said that he was the one who had stolen the automobile, and Corbett had not, and quite frankly, when I first heard Morgan testify to that effect, I was impressed with it. He also testified that he does not know Corbett; that was my recollection, and I had the reporter type up that part of Morgan’s testimony. The question was, ‘Do you know the defendant, Corbett? Answer: No; I don’t know him. Question: Never knew him? Answer: Just recently I have seen him, but I don’t know him; not specifically to say that he is my friend, no; I can’t say that. . . .’ ”
“THE COURT: Then I asked, I said, ‘How did you find out Corbett was being charged with the larceny of this automobile? Answer: Well, prior to the time I came over here, some friends that do know James Corbett told me, they asked me, “did you hear how that boy had been locked up ?” I said, who ? They said, “James Corbett.” I asked, for what? At the time they described the crime he had committed, I knew right then and there it wasn’t him.’ Now, considerable doubt is thrown on the testimony of Morgan by his testimony that he never knew Corbett.
“MR. MOORE: That is not a fair interpretation.
“THE COURT: Well, now, I will read it again. ‘Do you know the defendant, Corbett? Answer: No; I don’t know him. Question: Never knew him? Just recently I have seen him, but I don’t know him; not specifically to say that he is my friend; no; I can’t say that.’ The source of my doubt is that since the beginning of the trial of this case, I found out that Morgan and Corbett are charged jointly in several other cases, as co-defendants, so that it is hard for me to' place much faith in what Morgan testified to when he said, ‘No, I don’t know him,’ and he is being charged along with Corbett in other offenses. He must know him.
“I am convinced in my mind that Morgan not only knows Corbett, but he has known him for some time, and that Corbett knows Morgan, and for that reason, I find it quite difficult to believe that Morgan, for reasons of his own, actually committed the crime, which at least he says he did.” (Emphasis added)

Maryland Rule 1086 provides as follows:

“When a case has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

We hold that the trial judge was clearly erroneous when he relied upon knowledge acquired from outside of the record that Corbett and Morgan had been jointly indicted for other offenses. The other indictments were not introduced into evidence and were not called to the attention of the judge on the record, and it was not until the decision was announced that the trial judge indicated that he had any knowledge of these other indictments.

In civil cases the Court of Appeals of Maryland has laid down the rule that it may take judicial notice of other proceedings in cases before it, Jeweler v. Potomac Electric Power Company, 217 Md. 458, 144 A. 2d 66, but the Court has laid down a different rule with respect to trial courts. In Fletcher v. Flournoy, 198 Md. 53, 81 A. 2d 232, 235 the Court said:

“We are asked to say that the lower court — and this court — may take judicial notice of the record in that case in Montgomery County, in the court in which the instant case was instituted and from which it was removed to Howard County. In a recent case of the present plaintiff against Judge Bryan, Fletcher v. Bryan, 175 F. 2d 716, 717, the United States Court of Appeals for the Fourth Circuit quoted and followed a statement in its opinion by Judge Soper in Morse v. Lewis, 4 Cir., 54 F. 2d 1027, ‘The general rule undoubtedly is that a court will not travel outside the record of the case before it in order to take notice of the proceedings in another case, even between the same parties and in the same court, unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable strictness. * * * But in exceptional cases, as high authority shows, the dictates of logic will yield to the demands of justice, and the courts, in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation.’ In the instant case, the demands of justice do not suggest an exception to settled rules. Rule 2 itself provides a simple and inexpensive way to present such records in the form of ‘Sworn, or certified or photostatic copies’ attached to or filed with an affidavit. This court, like the Supreme Court (DeBearn v. Safe Deposit and Trust Company, 233 U. S. 24, 32, 34 S. Ct. 584, 58 L. Ed. 833), takes judicial notice of its own records, in the instant case as in other cases. Christopher v. Sisk, 133 Md. 48, 50, 104 A. 355; Snodgrass v. Stubbs, Md., 64 A. 2d 130, 133. As to trial courts, the general rule stated hy Judge Soper is law in Maryland. This situation has for many years been regulated by statutes which make original papers admissible in lieu of certified copies. Code, art. 35, sec. 88; Baltimore City Charter, (1949 Ed.), sec. 308. If in this respect the scope of judicial notice should be broadened, we can accomplish such a result only by exercise of the rule-making power, not by departing from settled law in a particular case.”

The rule adopted in Maryland seems to be the general rule, 9 Wigmore: Evidence § 2579 at 570 (3rd ed.) ; McCormick, Evidence § 327. Wharton states, however, that in criminal cases there is a division of authority, 1 Wharton Criminal Evidence, § 63 (12th ed.), but we do not think that a less stringent rule should be applied in criminal cases, where liberty is at stake, than in civil cases, where usually only property is at stake. Especially do we think that the rule should not be relaxed here where the information was not called to the attention of the witness for a possible explanation; and where the trial judge relied on unproven indictments to determine that the witness, Morgan, was unreliable. It is, of course, possible that the same determination would have been reached on the other evidence, but we cannot thus place ourselves in the position of the trial judge and ignore what he said.

Judgment reversed and case remanded for a new trial.


text:
    JOHN M. STOCKER, JR. v. STATE OF MARYLAND
    [No. 246,
    September Term, 1967.]

      Decided June 4, 1968.

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

      Beverly S. Pearson for appellant.

      Bernard D. Silbert, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, WUliccm Linthicum, State?s Attorney for Montgomery County, Andrew L. Sowner, Deputy State’s Attorney for Montgomery County, and William Cave, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Murphy, C. J.,

delivered the opinion of the Court.

Appellant was convicted of statutory nighttime burglary of the dwelling of Ernest Burgdorf by a jury in the Circuit Court for Montgomery County,. Judge John P. Moore presiding, and was sentenced to the custody of the Department of Correction for twenty years. He contends on this appeal:

1. That the trial court erred in allowing the prosecution, over appellant’s objection and after the State presented its case, to abandon count 5 of the indictment, charging the appellant with the lesser offense of receiving stolen goods.

2. That the arrest of appellant was unlawful, and evidence obtained by search of his person should have been excluded.

3. That appellant was prejudiced by the trial court’s refusal to hear testimony relating to a motion to suppress evidence out of the presence of the jury.

4. That there was insufficient evidence for the jury to find that the breaking and entry took place in the nighttime rather than in the daytime.

The record discloses that on September 17, 1966 at approximately 10:00 p.m., Henry Lehr, a resident of 4114 Edgevale Court in Chevy Chase, observed three men walking past the Clarkson home, four doors away. Lehr testified that he became suspicious because the three were only fifteen feet from the Clarkson house and appeared to be “sneaking around” as if “they did not want to be seen.” When two of the men proceeded to the rear of the Clarkson home, Lehr called the police.

Captain Leahy of the Montgomery County Police Department heard a call over his car radio that three prowlers had been observed in Edgevale Court. Being in that vicinity, Leahy promptly responded to the call and was approximately one block from the origin of the complaint when he saw a man, who he later identified as the appellant, emerge from behind some shrubbery. Leahy shone his car lights on appellant and when appellant came near his car, Leahy shone his flashlight on him, told him he was a police officer, and asked whether he could be of help. Appellant responded to Leahy’s statements by immediately fleeing in the direction of the East West Highway and the railroad bridge. Leahy testified that he had an opportunity to observe the appellant for approximately forty seconds and that he broadcast a description of him as being wanted for “investigation of prowling,” that description being:

“Man, five foot eight, well dressed, wearing a gray suit, no hat, and running in the general direction of the bridge — a white subject.”

After broadcasting the description, Leahy proceeded to the Clarkson residence to investigate the prowler call, at which time he observed that “the Clarkson house had been entered by the back door,” which had been “jimmied open” and “ripped off.” Leahy then rebroadcast appellant’s description over his police radio, this time stating that he was wanted for investigation of burglary. Within three minutes after this broadcast, Leahy was advised that Officers Kiliany and Greeley had apprehended a suspect on East West Highway. Upon going to the scene of the arrest, Leahy observed that it was the appellant whom the officers had arrested. Eleven minutes had passed from the time Leahy first saw appellant to the time of his arrest.

Each arresting officer testified at the trial that they received a call over their car radio describing a suspect wanted for burglary ; that the description was for a white male, neatly dressed, five foot, ten inches, dark hair, and .wearing a gray suit. Within a few minutes thereafter, as they were near the bridge on East West Highway, the officers observed a person answering the description of the suspected burglar. When they approached him, he ran behind a car and was about to jump over a fence when he was arrested by the officers.

Appellant was preliminarily searched at the scene, and a large number of coins were discovered in his pockets. A more thorough search ensued at the police station, where the police removed his wallet containing $300.00 and $23.35 in coins, consisting of one 1900 silver dollar, $13.00 in half-dollars, $2.50 in Kennedy half-dollars, $4.75 in 1964 quarters, and $2.10 in 1964 dimes.

At a few minutes past eleven on the same evening, Mrs. Ernest C. Burgdorf, of 8107 Kentberry Drive, Bethesda, reported to the police that the kitchen door to her home had been broken open, the bedrooms ransacked and the following items taken: a mink stole, a watch, a diamond and sapphire ring, and $23.35 in coins of the denominations found in the appellant’s pocket. Though the ring and watch were never recovered, the mink stole was later found in the front yard of 4107 Edgevale Court.

During the investigation of the Burgdorf burglary, Lt. La-Master removed a pink angora sweater from the bedroom, which had been thrown on the floor during the ransacking, and had it forwarded to the F.B.I. laboratory for processing, along with articles of appellant’s clothing. The laboratory report indicated that approximately a dozen hairs which could have come from the sweater were located on appellant’s jacket.

The sole witness for the defense was a numismatist who testified that the particular coins found on the appellant at the time of his arrest had no particularly distinctive markings which would make them readily identifiable.

I

We see no merit in appellant’s contention that the trial court committed prejudicial error by allowing the State to abandon the fifth count of the indictment (receiving stolen goods) after the trial had begun. Maryland Rule 711 provides that a nolle prosequi of the indictment may be entered by the State’s Attorney only in open court. In Boone v. State, 3 Md. App. 11, 25, we held that if a nolle prosequi is entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal. See Hochheimer, The Lams of Crime and Criminal Procedure, 2d Ed. § 152, p. 171. It is thus clear that appellant’s argument that he might be subjected to a future indictment on the abandoned count is entirely groundless. In its brief, and in oral argument, the State conceded that its “abandonment” of the fifth count was the equivalent of its entering a nolle prosequi, and for the purposes of this case, we so consider it.

Appellant also maintains that the State’s abandonment of the receiving count during trial constituted prejudicial error in that it removed his right to have the jury pass on the question of whether he was guilty of the lesser crime of receiving, rather than burglary. We disagree. Independent of the fact that the State has a right to “abandon” counts of the indictment after trial has begun, we think the jury was free to find from the evidence that appellant was only a receiver of stolen goods, and not the burglar, in which event, since the State had abandoned the receiving count, it would have been required to acquit the appellant of the burglary charge. We therefore see no prejudice in the State’s abandonment of the receiving count.

II

Nor do we find merit in appellant’s contention that his arrest was illegal and that the evidence obtained from him incident thereto was improperly admitted against him at the trial. We think the arresting officers had abundant probable cause to beHeve a felony had been committed and that appellant had committed it. Leahy’s information that prowlers had been observed in Edgevale Court, coupled with his observation of appellant emerging from the shrubbery in close proximity to the origin of that complaint, combined with the fact that appellant fled upon realization that he had encountered a police officer, followed by Leahy’s immediately ensuing observation that the door of the nearby Clarkson home had been ripped off and the house entered, constituted in our judgment probable cause for him to believe that the felony of burglary had been committed; and, with equal probable cause, to believe that the appellant was involved in the commission of the burglary. Leahy’s radio broadcast describing the suspected felon was overheard by the arresting officers, who, on the basis of that description, and information that a burglary had been committed, arrested the appellant in near proximity to the scene of the crime.

It is well settled that information placed on a “look-out” prepared by a police organization of which the arresting officers are a part, may constitute probable cause for the arrest. Johnson v. State, 238 Md. 528; Barton v. State, 2 Md. App. 52. We think the combined efforts of Capt. Leahy and Officers Kiliany and Greeley resulted in the lawful arrest of the appellant, so that the search of his person made incident thereto was likewise lawful.

Ill

The appellant next contends that he was prejudiced by the refusal of the trial court to hear testimony relating to a motion to suppress evidence out of the presence of the jury in that, as a consequence of such refusal, the jury heard testimony with respect to two other crimes for which appellant was not on trial, i.e., the Clarkson burglary and larceny of certain coins found the next day near a fence where appellant had been observed when attempting to elude police. In Terrell v. State, 3 Md. App. 340, 361, we held that while it was better practice to make a preliminary determination as to the validity of an arrest out of the jury’s presence, no prejudicial error would ordinarily result in not doing so in those cases where the questioned evidence was properly admitted.

It was, of course, incumbent upon the State to prove the legality of appellant’s arrest in view of his objection to the admissibility of the coins seized from him by the police at the time of his arrest. The facts relating to the Clarkson burglary were essential to the State’s proof of probable cause, and although the testimony concerning the discovery of the coins near the fence was not so essential, we see no ultimate prejudice in admitting that evidence such as would constitute reversible error. A cautionary instruction to the jury not to consider the fact of the Clarkson burglary, or of appellant’s connection with the coins found at the fence, in determining appellant’s guilt of the Burgdorf burglary may have been proper, but no such request was made by appellant. See Gamble v. State, 2 Md. App. 271.

IV

Appellant’s final contention is that there was insufficient evidence for the jury to find that the breaking and entry of the Burgdorf residence took place in the nighttime, rather than in the daytime, viz., before sundown. The evidence showed that the Burgdorfs left their home at 5 :45 p.m., in “broad daylight,” and returned home at approximately 11:00 p.m. From the testimony of Lehr, and from a map introduced in evidence, it was shown that the Burgdorf residence and the Clarkson residence were in close proximity to each other, although being on diffierent streets and separated by some railroad tracks. While there was no evidence of the exact time that the Burgdorf burglary occurred, we think from the evidence in the case, the jury could properly find that the Clarkson burglary was committed at night, sometime around 10:00 p.m., that appellant was observed in the area at approximately that time, that he fled from the area when observed by a police officer and that, when captured shortly thereafter, he had in his possession fruits of the Burgdorf burglary — a burglary discovered at about the same time as appellant’s arrest was made. We believe the jury could draw a rational inference from these facts that the Burgdorf residence was entered in the nighttime, at approximately the same time as the Clarkson residence had been entered and that the same person or persons were involved in both burglaries.

Judgment affirmed; costs to be paid by appellant.

      . Section 30 (a) of Article 37 of the Maryland Code (1967 Repl. Vol.).

      . Appellant was not indicted for this offense.

      . Under Maryland Rule 739 d, in all jury trials conducted after September 1, 1967, such evidence must be received out oí the presence of the jury. As appellant’s trial was in May of 1967, the cited Rule is not here applicable.

      . There was also evidence showing that a fur coat stolen from the Burgdorf residence was found in the front yard of 4107 Edge-vale Court. We think this fact tends to indicate that the Burgdorf and Clarkson homes were located near each other, and that the person or persons who stole the Burgdorf fur also entered the Clarkson residence on Edgevale Court, or were involved in that burglary.


author: Orth, J.,

text:
    DAVID P. KIST v. STATE OF MARYLAND
    [No. 293,
    September Term, 1967.]

      Decided June 4, 1968.

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

      Richard K. Jacobsen, with whom was James J. White, III, on the brief, for appellant.

      Edward F. Borgerding, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donald Needle, Assistant Attorney General, and William P. Fennell, State’s Attorney for Kent County, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

The appellant was found guilty by a jury in the Circuit Court for Kent County of grand larceny and sentenced to imprisonment for a term of 5 years.

Prior to trial the appellant moved that the search warrant, under the authority of which evidence was seized from his home, be quashed and that the evidence be suppressed. On this appeal from the judgment, the appellant claims error in the denial of the motion and in the admission at the trial of the evidence seized.

The affidavit to the search warrant, sworn to by Trooper Wilson E. Todd of the Maryland State Police on 18 December 1966, alleged that upon his personal knowledge, information and belief there was probable cause to believe that a misdemeanor or felony had been committed and that the fruits of the crime were held by Albert Kist in a “one story bungalow, frame construction located off the north side of Maryland Route 7, Charlestown, Cecil County, Maryland.” The fruits of the crime were designated as “one R. C. A. color television set and one Sears Silvertone portable television set bearing ‘RCM’ marks thereon, property of Roy C. Mitchell.” The only basis for the allegation of probable cause set forth in the affidavit was “that the two television sets referred to above (plus another T.V. set) were seen by Robert S. Bean on the premises referred to above on December 14, 1966, and that two television sets of identical description were stolen from Roy C. Mitchell’s, residence on or about December 8, 1966, and that on or about December 8, 1966, David Kist, son of Albert Kist, was on the Roy C. Mitchell premises.”

It has been firmly established in this State that the court’s-consideration of the showing of probable cause must be confined solely to the affidavit itself. Scarborough v. State, 3 Md. App. 208, 211. “The probable cause necessary for the issuance of a search warrant requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched.” Frey v. State, 3 Md. App. 38, 44; Salmon v. State, 2 Md. App. 513. An affidavit may be based on hearsay information, even from an unidentified informant, and need not reflect the direct personal observations of the affiant, but it must contain some of the underlying circumstances from which the affiant could be reasonably justified in a belief that the hearsay information was reliable or the informant was credible. Scott v. State, 1 Md. App. 481. So in Sessoms v. State, 3 Md. App. 293, the credibility of the informant was shown by a statement in the affidavit that three named persons, who had known the informant for a designated period of time under circumstances therein set forth, had advised the affiant that the informant was “a reliable person whose word could be relied upon.” But information received from an informant, who is only alleged to be “considered reliable,” without any reason given as to the basis of that conclusion, would not constitute probable cause for the issuance of the search warrant. Frey v. State, supra, p. 44. See Gatewood v. State, 244 Md. 609.

In the instant case the informant was named in the affidavit but there were no facts set forth showing that the affiant was reasonably justified in a belief that such informant was credible or his information reliable. Nor were there any other facts stated to show that the evidence of the crime was within the place to be searched. We think that the affidavit did not show probable cause as required for the issuance of the warrant and hold that the lower court erred in the denial of the motion to quash the warrant and suppress the evidence and in admitting in evidence the articles seized.

In view of our finding we need not consider the other contention raised by the appellant.

Judgment reversed; case remanded for a new trial.

      . The testimony adduced at the trial indicated that both the appellant and his father, Albert Kist, resided in the dwelling searched.


text:
    WILLIAM EDWARD YOUNG v. STATE OF MARYLAND
    [No. 147,
    September Term, 1967.]

      Decided June 7, 1968.

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

      Leonard S. Freedman for appellant.

      Donald Needle, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles B. Moylan, Jr., State’s Attorney for Baltimore City, and Howard L. Cardin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

William Edward Young, the appellant, complains of convictions of murder and assault with intent to commit rape in a trial before John N. Maguire sitting without a jury in the Circuit Court for Baltimore County. He was sentenced to life imprisonment. He claims that his formal statement should not have been admitted into evidence; that a verbal admission should not have been admitted into evidence; and that there was insufficient evidence to support the convictions.

The evidence showed that Elizabeth Roddy, the deceased victim, a 72 year old female, resided in a first floor apartment at 877 Park Avenue, Baltimore, Maryland. She was last seen alive by Mary Wallace, 865 Park Avenue, Baltimore, Maryland,, at approximately 3:45 P.M. on Friday, October 14, 1966, at the front door of 877 Park Avenue. On Saturday, October 15, 1966, about 6:00 A.M. the body was discovered by George Berse, a janitor and maintenance man at 877 Park Avenue, on the hallway floor of her apartment.

Elizabeth Roddy’s body was found lying in a pool of blood. Her slip and housecoat had been pulled up around the upper portion of her body while her panties had been partially ripped. An examination of her apartment revealed that the front door had not been physically forced open, and that a portion of several rooms had been ransacked.

The medical examiner’s report, which was admitted into evidence by stipulation of counsel, stated that Elizabeth Roddy was a homicide victim. The report showed that she had been beaten about the head by multiple blunt force impacts causing severe skull fractures, cerebral contusions and hemorrhages. There was a superficial laceration and contusion to the entrance of her vagina; however, no spermatozoa was found. The injuries occurred, according to the report, between 3 :00 P.M. on October 14 and 6:10 A.M. on October 15. From the condition of her clothing, injury to her vagina and the “toxicological findings,” the report concluded that a sexual attack had at least been attempted. When the court called the medical examiner as a witness, he explained that a chemical examination of the washings from the vagina were positive — indicating a high degree of probability that “seminal fluid had been there but not necessarily a complete ejaculation.”

David Rochester, 869 Park Avenue, testified that on October 14, 1966 at about 11:00 P.M. Young rang his front door bell .and asked for a man named “John.” William Schnieder, 871 Park Avenue, testified that on October 14, at about 11:00 P.M. .someone rang his front door bell but that he could not identify the person since he did not go to the door. Russell Panzarella, ■865 Park Avenue, testified that an unidentified white man rang the bell at his apartment house at about 11:00 P.M. October 14, 1966 and asked for “Frank,” and that he admitted him saying that Frank Buchwitz lived on the third floor. Mary Wallace, •865 Park Avenue, testified that on October 14, at about 10:45 P.M. she saw Young walking down the steps from the second floor to the first floor of her apartment building, and that he left via the front door; and that on October 20, 1966, at about 3 :45 P.M. she saw Young for the second time when he rang her front door bell and asked for someone named “Frank.” Pauline Prendergast, 867 Park Avenue, testified that on October 20, 1966, at 3:30 P.M. to 4:30 P.M. she saw Young at the front door to her apartment building, and her aunt called the police. When the police arrived at Read Street and Park Avenue, a half block from Pauline Prendergast’s residence, they saw Young standing on the northwest corner; they asked him his name and what he was doing at that place. Young stated his name and that he was looking for “Frank, a man who sells clothes.” The police thereupon took him into custody and drove him to the Central District Police Station arriving about 4:45 P.M.

At the police station he was interrogated promptly by Lt. Cadden. Some of the testimony as to the questioning is as follows :

“A Well, I told him that we were investigating the case of homicide, and so forth, a woman that was found slain in her home. She had been sexually molested. He had a right not to discuss the situation. He had a right to remain silent. If he desired, he could get a lawyer of his own choosing. If he couldn’t afford a lawyer, we were obliged to obtain a lawyer for him. He was advised that anything he said to us would be used against him in a Court of law. We wanted to call his parents. He pleaded with us not to. He stated his mother was ill with a heart condition and he had a great fear of his dad.
“Q Where did you have this discussion about calling his parents ?
“A As soon as he was brought in.
“Q Before any of this interrogation began ?
“A Yes.
“Q What was his response to that ?
“A Please don’t bother them. He constantly pleaded with us repeatedly. ‘M'y mother is quite ill. She had a heart seizure. It is my bankbook.’ He pays his own board. They did nothing. He had a great fear of his dad. He never explained that.
“Q When you told him he didn’t have to say anything, what did he tell you about that ?
“A He said he had nothing to say about it. He didn’t need a lawyer. He had money and he didn’t do anything.
“Q What, if anything, did you say to him when he said that ?
“A He said he didn’t need a lawyer. He said T don’t need a lawyer.’ verbatim.
“Q When you said he could have a lawyer, what type of response did you get ?
“A We told him if he couldn’t afford an attorney, we were obliged to get an attorney. We showed him this piece of paper that we carry. We read it there. Voluntariness of confession. Miranda versus State of Arizona. We are obliged to get him an attorney before proceeding.
“Q You said you had this form ?
“A Yes, it is put into all folders without statement, after admonishing.
“Q You gave that to him to read for himself?
“A Yes.
MR. CARDIN: The State will offer this form that the officer uses as Exhibit No. 3.”
Exhibit No. 3 reads as follows:
“June 21,1966
VOLUNTARINESS OF CONFESSIONS IN VIEW OF SUPREME COURT DECISION IN MIRANDA v. ARIZONA
“In addition to the traditional tests of voluntariness, i.e., that statements of the defendant may not be the product of threats, coercion, duress, promise of reward or of any other improper inducements, Mirmda requires that prior to any interrogation, persons ‘in-custody’ must be advised of the following: (1) ‘that he has the right to remain silent’; (2) ‘that anything he says can be used against him in a court of law’; (3) ‘that he has the right to the presence of an attorney,’ and (4) ‘that if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires.’ ”

At that time Young refused to make any statement so he was fed and placed in a cell until 8:00 P.M. when he was placed in a lineup. After he was identified by several of the witnesses at the lineup he began to cry and made a remark which caused the officers to call Lt. Cadden.

“Q You said you admonished him again?
“A Yes, as to his rights again, very thoroughly.
“Q You are using the word again because of the prior interrogation ?
“A Yes, I advised him, and told him he could remain silent. He didn’t need to say anything further. He had a right to an attorney and we would get an attorney if he had no means to obtain an attorney. He was told that whatever he said there was going to be used in Court and anything further that he said would be used against him in Court.
“Q What did he say to this ?
“A He was crying, very vigorously, T swear to God I didn’t mean to kill her. And, I didn’t rape her.’ Wherein, he said molest, he didn’t say rape. He said molest. And the medical examiner told us about this. Wherein he said he didn’t rape her and he didn’t mean to kill her and he was upset about it. We asked him if he desired to tell the story, if he desired to give a statement, and he said he did. He would tell the story.
“Q Do you recall what you said at that time ?
“A I, again I told him, did he want to give a statement and he said yes. At that time, we prepared a paper to put in the typewriter. We started in on our routine questions, name, age, extent of education, his address, whether he could read or write, he began to relate the crime and I again admonished him as to his rights again. That is in the statement. He told us that he wouldn’t sign the thing. I remember that.
“Q Let me ask you this. How many times in total did you admonish this man ?
“A Three or four times, sir.
“Q And the first time was when ?
“A When he was brought in by my men about 4:45 that afternoon. Then I told him as I was interviewing him regarding his presence in that area. I asked him how many times- — -this was 4:45 — and he told me several times the prior week, which was the week of the 16th. From the 9th to the 16th, and we got to Friday might, when he told us he was in that area about the 'time, about ten or 11:00 o’clock, the prior Friday might, the 14th, and I admonished him then.
“Q This was the first time ?
“A That’s right.
“Q When was the second time you admonished him ?
“A When he came out of the line-up room. And he related to me what he stated, as he was conveyed from 'the line-up room, I admonished him again. Then again in the statement, three times, actually.
“Q You admonished him three times ?
“A Yes.”
* * =i=
“Q (Mr. Cardin) Lieutenant Cadden, specifically, what, if anything, did Mr. Young say to you with regard to an attorney ?
“A He told me that he didn’t want an attorney at first. At first, he didn’t do anything. After the lineup, when he made certain statements, I again admonished him that he may request a lawyer — I was quite •emphatic. I must be emphatic in a matter such as this is, sir.
“Q When you say you were emphatic, go a little further.
“A Well, he could call an attorney if he so desired. He could call his parents. He cried ‘Oh, my God, no, no, no, don’t call. My mother is sick. Oh, God’ and he went on sobbing and we told him we were obliged to get an attorney for him if he so desired.
“Q What did he say to that ?
“A He didn’t want an attorney. He never accepted this, or the response.
“Q What, if anything, did he say to you when you told him that whatever he said would be used against him in Court ?
“A He said he understood this. I read him from the original sheet after I submitted it to him. AVe have to do this. AVe explain to these people regardless.”
“Q AVhen he was first arrested and you knew he was arrested and you were going to interrogate him about this homicide and rape and burglary, is there any reason why you yourself didn’t telephone them and tell him where he was held ?
“A He stressed the fact that he was independent, that he had his own bankbook, he showed us that, with a considerable amount of money, $5,000, and he said he was independent, all he did was sleep home. That he didn’t want anybody. At first he was pretty arrogant. At first he didn’t need anybody, he didn’t want to call his parents.”

Officer John Lewandowski testified as follows :

“Q (Mr. Freedman) Now, when the interrogation began at approximately 4:45 or five p.m. on the 20th of October, you were present at the beginning, weren’t you?
“A Yes, I was.
“Q AVho did the talking to start with ?
“A Lieutenant Cadden.
“Q AYhat did he say to the Defendant ?
“A He advised him of his constitutional rights.
“Q I didn’t ask you what he did. What did you do ?
“A The words what he said ?
“Q To the best of your recollection, yes.
“A He advised him that he did not have to say anything. That anything that he said would be held against him. That he could have an attorney present during this interview and that he could conclude this interview at any time.
“Q What did the Defendant say about all that ?
“A Well, the lieutenant asked if he understood what he said and the Defendant said, yes, he did.”

Detective William Craig testified to the following:

“Q And at any time during that interrogation, did Lieutenant Cadden admonish the Defendant with regards to his constitutional rights ?
“A Three or maybe four times he advised him of his rights.
“Q You are talking particularly about the interrogation that began at 4:45 p.m. ?
“A At least once, maybe twice during the first interrogation, yes.
“Q Would you briefly describe what constitutional rights Lieutenant Cadden advised Mr. Young of?
“A He advised Mr. Young that he had a right to remain silent, not to answer any questions. He had a right to have a lawyer at his side. If he could not afford a lawyer, that the Police Department would make arrangements to supply him with one.
“Q I show you State’s Exhibit No. 3A, and ask if you can identify that ?
“A Yes, this was shown to the Defendant here, given to him to read.
“Q During this 4:45 interrogation ?
“A Yes, sir.
“Q Who gave it to Mr. Young to read?
“A Lieutenant Cadden.
“Q Did you see him do that ?
“A Yes, I did.”
* * *
“Q What happened then?
“A Then I took him into the interrogation room and Lieutenant Cadden was called. I advised him of what the boy had said, of what he said.
“Q What, if anything, was Mr. Young doing?
“A He was shaking and trembling, crying and completely upset.
“Q What was the next thing that happened ?
“A He was then again advised by Lieutenant Cad-den of his rights.
“Q What rights ?
“A The same thing. He had a right to remain silent, not to talk about anything at all without a lawyer, and he could be supplied with a lawyer.
“Q Then, what happened ?
“A Then Lieutenant Cadden also asked him, asked on a couple of occasions if he would like to call his parents.
“Q Who said that ?
“A Lieutenant Cadden.
“Q Asked this of Mr. Young?
“A Yes, sir.
“Q You say that he did that on several occasions ?
“A He did during the first and second interrogation.
“Q Are you personally aware of whether or not the Defendant was fed at any time on October 20, 1966?
“A Yes, he was once. I was sitting there while he was fed a meal that was brought into him.”

In addition the evidence also showed that Young had a tenth grade education, was self-supporting and had a bankbook showing an account in his name in the amount of $5,000.00, which he had saved. He was, at the time of his arrest, employed at one full time job and one part time job. Although prior to obtaining his then current employment his employment record had been sporadic. He had been discharged honorably from the Navy after less than one month’s service due to inability to adapt to naval life. He was of dull normal intelligence, according to his privately retained psychologist, but Lt. Cadden stated that he appeared to be “reasonably sensible.” The trial judge, in ruling on the admissibility of the statement after Young had testified on the issue of voluntariness, stated that he disagreed with the psychologist and that Young appeared to be a “very observing young man”. The psychologist also stated that he had a personality disturbance which may be indicative of an incipient psychotic process.

Young was initially questioned beginning immediately after his arrest (about 4:45 p.m.) for a period lasting not in excess of one hour. He was questioned again after the line-up (held at 8:00 p.m.) was concluded. The subsequent questioning took approximately 20 minutes, after which the written statement was taken and typed — from 8:58 p.m. to 11:00 p.m.

After the written statement was typed Young refused to sign it until he talked with his father. His father appeared at the police station in response to a telephone call and conferred with his son. Afterwards, Young again refused to sign the statement.

In the statement Young said:

. .she started yelling at me and I started walking towards the doorway, I opened the door and she was following close behind me and she started yelling at me hurry up get out, then I got mad and I slammed the door towards her and the door hit her and she fell back against the wall and then fell down in the hall, I don’t know if she was unconscious or what she just laid there, then I started looking around her apartment for Frank, I didn’t see anyone in the apartment, then I went back in the kitchen and got a drink of water then I left out the front door.”

In testifying on the question of voluntariness of the statement Young denied that he was given any constitutional warnings; denied that he was fed; and claimed that the police officers refused his request to telephone his father to get a lawyer. At one point in his testimony he stated that he made the request to a Lt. Rollins who was not in the courtroom. Later he said he wasn’t sure as to whom he made the request, but it was the officer who interrogated him. Police testimony showed that all of the interrogation was conducted by Lt. Cadden, whose testimony was in complete conflict with Young’s testimony on these points. Young’s statement contained a recital that the police officers made no threats or promises. In his testimony, Young does not claim that any promises or threats were made.

I

The Admissibilty of the Written Statement

Young, on appeal, does not contend that the written statement was inadmissible because of a failure to comply with the detailed requirements of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, probably because the evidence set out above clearly shows that those requirements were fully met. Brown v. State, 3 Md. App. 313, 239 A. 2d 761. Neither is there a contention that the statement was not admissible because the totality of the circumstances showed that his will was overcome at the time the statement was made, probably because the evidence was to the contrary. Brown v. State, supra. The contention seems to be based on the frivolous ground that the statement should not have been admitted because of a “variance” between the indictment and the written statement. He seems to rely on McGlothlin v. State, 173 Md. 132, 194 A. 830 which clearly holds to the contrary. See 173 Md. at 135-36:

“It is claimed that there is a variance in the indictment and the voluntary statement made by the appellant. The admissibility of the statement may not be denied because it does not refer to or tend to prove every element of the crime, provided it is identified by its own verbiage or by other evidence as relating to the crime charged in the indictment.”

We hold that the written statement was properly admitted.

II

The Admissibility of the Oral Statement

The evidence showed that immediately upon his arrest on October 20, 1966, Young was fully warned as to his constitutional rights, and further that he understood what those rights were and that he expressly waived them. At that time he declined to make any statement. The evidence also discloses that about 6:00 p.m. he was given something to eat and placed in a cell until 8:00 p.m. when he was subjected to a line-up. After he was identified at the line-up he apparently broke down and made incriminating statements w'hich were not introduced into evidence. The officers hearing these statements called Lt. Cadden, who repeated the Miranda warnings after he heard him state “I swear to God I didn’t mean to kill her.” This is the oral statement to which objection is now made. There was.no objection to this evidence below and therefore under Maryland Rule 1085 the matter is not properly before us, but to avoid possible collateral attack on this ground we will consider the contention.

We think the evidence was admissible on two grounds: First, Young had received full Miranda warnings less than three hours before the statement was made and second, the statement was a volunteered statement. The Supreme Court in Miranda v. Arizona, supra, 384 U. S. at 478, 86 S. Ct. at 1630, stated:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

The fact that Young was agitated at the time he made the oral statement does not make it inadmissible, see McCleary v. State, 122 Md. 394, 89 A. 1100, Bryant v. State, 229 Md. 531, 185 A. 2d 190, Mundell v. State, 244 Md. 91, 223 A. 2d 184, Cooper v. State, 1 Md. App. 190, 228 A. 2d 840.

Ill

Sufficiency of the Evidence

We cannot say that the trial judge was clearly erroneous, Maryland Rule 1086, when he convicted Young of assault with intent to rape nor when he convicted him of murder. The medical examiner’s report and his testimony were sufficient proof of the corpus delicti of both crimes. Md. Code, Art. 27, § 410, Stackhouse v. State, 1 Md. App. 399, 230 A. 2d 358. Young’s statement that he was present at the time when the crimes were committed was corroborated by other witnesses who identified him as being in the neighborhood, even though such corroboration is not required. Whitmer v. State, 1 Md. App. 127, 130, 227 A. 2d 761, 762.

In Pettis v. State, 2 Md. App. 651, 653, 236 A. 2d 429, we said :

“Proof of guilt beyond all doubt has never been required, even in the most serious criminal cases. Tasco v. State, 223 Md. 503. In Berry v. State, 202 Md. 62, 67, the Court of Appeals stated:
‘The trier of facts in a criminal case is enjoined by law to give due force to the presumption of innocence, and then to proceed cautiously in weighing the evidence; but he is not commanded to be naive and to believe without scrutiny every glib suggestion or farfetched fairy tale whether emanating from State or defense. An indispensable ingredient in judgment, in court as well as out of it, is a modicum of common sense.’
“Likewise, in Hayette v. State, 199 Md. 140, the Court stated, at page 144:
‘To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous coincidence consistent with innocence be negatived.’ ”

Judgments affirmed.

      . It appears that “Frank” was a chance acquaintance who lived near the scene of the crime and with whom Young had had some sort of unnatural sex experience.


text:
    REGINALD DAVID LEATHERBERRY v. STATE OF MARYLAND
    [No. 206,
    September Term, 1967.]

      Decided June 7, 1968.

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

      Milton B. Allen for appellant.

      Donald Needle, Assistant Attorney General, with whom were iFrancis B. Burch, Attorney General, and Charles E. Moylan, Jr., State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Reginald D. Leatherberry, the appellant, was indicted in the Criminal Court of Baltimore for assaulting a police officer and violating the narcotics laws, and was convicted of the latter charge in the Criminal Court of Baltimore, Judge J. Harold Grady presiding without a jury.

On June 2, 1966 at approximately 9:10 in the morning, Officer Lewis Davis, of the Baltimore City Police Department, was summoned to a store at the corner of Pennsylvania and Mosher Streets to investigate a crime not related to this case, and involving a third person. The officer testified that he observed Leatherberry sitting at a booth in the corner of the store and a brown medicine bottle with several pills in it, sticking out of his pocket. When the officer asked Leatherberry what was in the bottle, he removed the bottle from his pocket and stepped towards the officer as if to show the contents to him. Leatherberry suddenly lurched forward and struck the officer on the chest, knocking him off balance. Leatherberry then ran out of the store; Officer Davis gave chase and caught up with him as he threw away the brown bottle which was not recovered. Leatherberry was charged with assaulting a police officer and was taken to Western District Police Station where, prior to incarceration, he was searched by the turnkey, Joseph Levin, who discovered some cellophane envelopes on his person. The contents of these envelopes were turned over to the Narcotics Squad which sent them to a chemist for analysis. The report of the chemist showed that the envelopes contained heroin hydrochloride.

Leatherberry testified that he was sitting in a back booth at the 'Town Store at the time in question, but that he was sitting in .such a way that the officer could not have seen what was in his "back pocket. He further testified that he was eating breakfast, -and that someone else whom he did not know was also sitting at the booth. The officer then came up to the other fellow and asked him to empty his pockets on the table. Leatherberry further testified that as he got up to leave the officer told him to sit down and went through his pockets and found a container that looked like a small tube which fell on the floor. Leather-berry then picked the tube up and ran outside. He testified that he never touched the officer.

In support of Leatherberry’s testimony, Sonny Clark, the person who called the police to the store, testified that the officer, after asking the unidentified man sitting at Leatherberry’s booth to empty his pockets on the table, asked Leatherberry to do the same. Clark testified that he was unable to see what Leather-berry took out of his pockets, but as he began to empty his pockets Leatherberry ran out of the store.

At the end of the trial, the court concluded that the officer had not searched Leatherberry in the store nor had he placed him under arrest until later, and that the subsequent search was legal and the contraband seized as a result of that search was properly admitted into evidence. The court found that the assault “was purely incidental to the boy’s running past the officer” and found Leatherberry guilty only of possession of narcotics.

Leatherberry contends that the police officer did not have a right to accost and to search him while he was in the store; that he therefore had a right to leave the premises while being illegally accosted and searched by the policeman, and that the arrest and subsequent search and seizure of the narcotics was illegal.

Alleging that the accosting by the police officer was illegal, Leatherberry cites Shipley v. State, 243 Md. 262, 268, 220 A. 2d 585 and Morgan v. State, 2 Md. App. 440, 442, 234 A. 2d 762.

In Shipley v. State, supra, two police officers, upon observing a car with three occupants remain stationary in front of the Beth Jacob Synagogue for some time decided to investigate. One of the police officers drove the police car alongside the stationary automobile while the second policeman, leaning out of the window of the patrol car, shined his flashlight on his police badge, identified himself as a policeman and asked the driver for his registration card and driver’s license. One suspect, then alighting from the car, approached the police car blocking the view of the police officer with the flashlight. The second police officer then got out of the police car and walked to the other car. From the dashboard light and the light of the police car, he observed a dirk knife on the floor protruding from under the driver’s seat. The court held “that the police officers were justified in the environment, at the time and under the circumstances, in accosting the appellants and looking into the car from the street, where obviously they lawfully were, to see if any illegal article was in it,” Shipley v. State, supra at 243 Md. at 268.

In Morgan v. State, supra, two police officers in the early hours of November 8, 1966, drove into a gas station. One officer who intended to use the men’s rest room was told by the station attendant that two men had been occupying the facility, which had only one toilet and a sink, for approximately twenty minutes. The policeman waited until the two men emerged from the rest room and watched them walk down the street “holding themselves.” One police officer testified that the two^ men appeared dazed. Soon thereafter the police officers drove their vehicle alongside the two men and one of the officers called out “hey, you just took a needle up there in the Kayo station.” This Court held that “it is well established that when one is approached by a police officer and merely questioned as to his identity and actions, this is only accosting and not an arrest,” Morgan v. State, 2 Md. App. at 442.

Leatherberry agrees that the police may accost a person merely to question his identity and actions but only under particular and unusual circumstances. He contends that the time of day, 9:30 in the morning would not be an unusual circumstance and the place, a bar or tavern, would not be the particular environment talked about in Shipley v. State, supra. Whether the officer’s action in this case was proper or not, appellant’s subsequent action in assaulting the officer was clearly unlawful and justified the subsequent arrest.

Leatherberry next complains that the police officer illegally searched him while on the premises. The trial judge evidently believed the testimony of the police officer and he does not have to believe every story given by the accused. Anderson v. State, 3 Md. App. 362, 369, 239 A. 2d 579.

Leatherberry next complains that he had a right to leave the store while he was being illegally accosted and searched by the police officer. We have found that the police officer did not search the appellant on the premises, and assuming without deciding, that the accosting was improper this did not authorize the assault.

Lastly, Leatherberry contends that his subsequent arrest and the search and seizure following the arrest was illegal.

Clark and Marshall, Crimes § 10.19 at 654 (6th Ed. 1958) defines battery as follows :

“Any unlawful injury whatsoever, however slight, actually done to the person of another, directly or indirectly, in an angry, revengeful, rude, or insolent manner, is a battery. Every battery includes an assault, so that on an indictment for assault and battery one may be convicted of an assault only.”

The fact that Leatherberry when rudely running past the officer pushed him, was sufficient to support an assault conviction. The officer therefore had probable cause to arrest the appellant at that moment. “The legality of an arrest is measured by the existence of probable cause at the time thereof, not by subsequent events which may lead to the release of the person arrested from police custody either immediately or ultimately.” Wilson v. State, 2 Md. App. 210, 214, 233 A. 2d 817; therefore, the fact that Leatherberry was not convicted of assault at the trial would not affect the fact that the police officer had probable cause to arrest him as he fled from the store.

When a policeman has reasonable grounds to believe that a felony has been committed and that the person who was arrested had committed the felony, he may arrest without a warrant. Boone v. State, 2 Md. App. 479, 481, 235 A. 2d 567. In the case at bar the appellant had assaulted the police officer so that there was reasonable ground for the officer to arrest the appellant without a warrant for a felony. If the arrest was legal and the search was incident to the arrest, there is no illegality involved, Michaels v. State, 2 Md. App. 424, 428, 234 A. 2d 772. It should be noted, of course, “an officer is not required to have sufficient evidence to convict at the time he makes his arrest but only probable cause, which has been described as something more than suspicion, but less than that required for a conviction,” Terrell v. State, 3 Md. App. 340, 239 A. 2d 128. Also it does not matter that the goods seized were not connected with the crime for which the appellant was arrested, Gamble v. State, 2 Md. App. 271, 276, 234 A. 2d 158.

Judgment affirmed.

      . Md. Code Art. 27 § 11B states that:
      “(a) It is unlawful for any person to beat, strike or otherwise assault a policeman while the said policeman is acting in his official capacity.
      “(b) Violation of this section is a felony punishable by imprisonment not to exceed five years.
      “(c) This section is only applicable to Baltimore City and Alleghany County.”

      . The fact that the search was continued at the police station would be immaterial. In Abel v. United States, 362 U. S. 217, 238-39, 80 S. Ct. 683, 697, 4 L. Ed. 2d 1019 the Supreme Court of the United States stated:
      “Items (3), (4), and (6), a birth certificate for ‘Emil Goldfus’ who died in 1903, a certificate of vaccination for ‘Martin Collins,’ and a bank book for ‘Emil Goldfus’ were seized, not in petitioner’s hotel room, but in a more careful search at I. N. S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I. N. S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested.”