author: Orth, J.,

text:
    ALPHONSO WIGGINS v. STATE OF MARYLAND
    [No. 280,
    September Term, 1968.]

      Decided May 2, 1968.

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

      Michael Lee Kaplan, with whom was Morris Lee Kaplan on the brief, for appellant.

      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 Stephen Montanarelli and John H. Lewin, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Rosina DiPaula, single, age 76 years, 5 feet tall, weight 128 pounds, died in Maryland General Hospital on 12 November 1966. The opinion of the Medical Examiner was that she died of broncho-pneumonia complicating extensive head injuries with brain damage and that the manner of death was homicide.

Alphonso Wiggins, age 15 years, was charged with her murder. He was found guilty of murder in the first degree at a court trial in the Criminal Court of Baltimore and sentenced to imprisonment for the balance of his natural life.

Rosina DiPaula lived with her elderly sister, Concertina, also single, at 1323 West North Avenue. Rosina was in good health on 4 October 1966, active, with her sister, in their embroidery work which they did in a sewing room on the second floor of their residence. Their brother, Joseph DiPaula, whose practice was to stop by to see them, both in the morning and in the afternoon, about five days a week, visited them at 6:00 P.M. that day. They were in the sewing room working. He ate a dish of broth they had prepared for him. Concertina asked him to cash Rosina’s social security check in the amount of $68, but he had only $50 which he gave Concertina — “3 tens, 3 five dollars and five one dollar.” As he left the house about 6:30 P.M. he saw a young man, a Negro, standing outside the door on the steps. He was wearing a white jacket with “University of Maryland” on it in blue lettering. He had a conversation with the boy, “Thinking — hoping he would step down from the steps and go away. But, he did not make any effort.” The boy remained on the steps while DiPaula went to the corner and bought a newspaper in a drugstore. DiPaula watched him and “after a little while he stepped down, he walked toward the curb, he look up and down, then he came towards me.” The boy apparently made a telephone call from a booth on the corner and then walked away. DiPaula remained on the corner, allowing several buses to go by and then took a bus and went to his home. When he got home his wife had received a telephone call about his sisters and he went to the Maryland General Hospital. “They were beyond recognition * * * Their heads were swelled up and they were full of blood, and their hair was full of blood, their dress was full of blood, and they were just in a dying state * * * They were unconscious.”

On 4 October 1966 about 6:40 P.M. Sergeant James Osborne and Officer Richard Catania of the Baltimore City Police went to 1323 West North Avenue in response to a call that a burglarly was being committed at that address. The vestibule door to the house was closed but not locked. The main door had been broken, one of the hinges had been torn loose and the door was hanging from the other hinge. They entered and found Concertina DiPaula and Rosina DiPaula in the hallway, each lying in a pool of blood. Osborne testified, “There was a lot of blood, I estimate maybe three-quarters of a pint or pint around each one of them, and difficult to tell where they were injured, so much blood all mixed up in their hair and all.” Rosina was by the telephone with the receiver in her hand but the phone had been jerked from the wall and “was no longer in operation.” The police heard “a noise out back as if someone was leaving the house” and Catania ran toward the kitchen. Osborne went to the second floor. There was blood from where the sisters were found on the first floor all the way to the sewing room on the second floor. The entire house had been ransacked,- — doors and drawers pulled open, a mattress on a bed on the third floor rolled up and removed from the bed, pillows thrown on the floor, papers strewn about, clothes taken from closets and discarded on the floor, chairs knocked over. Officer Davis had also received a call about the burglary. He went to the rear of the 1300 block West North Avenue. As he drove up the narrow alley he saw a boy running out of a rear yard of a house in that block. The boy was carrying what appeared to be a shoe box and -a couple of books under his arm. In his other hand was what appeared to be a gun. As the police car proceeded up the alley the boy fired three shots at it. The boy ran up an intersecting alley. The police commanded him to halt and fired two shots at him but he continued running to Etting Street when he was joined by another youth. They both ran up an alley in the rear of the 2300 block Etting Street and the police lost sight of them. Rosina and Concertina DiPaula were taken to Maryland General Hospital in an ambulance.

Antonio Vega, age 13 years, was with the appellant, Willie June and Lee Cephus about 6:00 P.M. on 4 October 1966. Vega was wearing a white University of Maryland jacket. They went “up on North Avenue” to the super market and June suggested they snatch a pocket book but Vega said he did not want to do that. June then said, “Well we wait until they go in the house then we get their money.” Vega declined to do this and the others asked him to watch for them. He stayed outside the house to “watch out for them * * * If anybody come to tell them somebody coming.” The other three went into the house. After a while he heard somebody scream. The scream come “out of the house they went * * * It sound more like a women.” Vega was scared. He saw the police coming and hollered police and ran. He went to a cellar on Brunt Street and the appellant, Cephus and Elders were there. Cephus had a cigar box containing “earrings and stuff” and he had some money in his hand. The appellant had a gun and some empty cartridge cases. The appellant had blood on his hand and wiped it on Vega’s jacket. Vega left, leaving the jacket.

Rudolph Matthews, age 14 years, saw the appellant, June and Cephus on 4 October at a sandwich shop at Pennsylvania and Lafayette Avenues. June said they were going to make some money and the three of them went “down North Avenue.” He saw the appellant the next day playing dice with some other boys. The appellant told him “he made a hustle.” The appellant had money — “fives, ones, tens,” and some jewelry which he said he got and was going to pawn. He had seen the appellant with a gun two or three weeks before.

Allen A. Jones, age 14 years, saw the appellant the early part of October in a group playing “Skelly.” The appellant '“was talking. He said him and Lee (Cephus) was on North Avenue and they went in the lady’s house and took and beat the ladies with brass knuckles and iron pipes, and they was ^saying they were searching for money.” The appellant’s jacket '“had something red on it.”

Eugene Golden, age 13 years, also saw the appellant the early part of October. “He (the appellant) say he made a hustle up ■on, he said he was up there, North Avenue, a super market and ■ say when he seen these two old ladies come out, he walked • around the back. At first him and Lee was talking to them, then he say he walked around the back. He said he seen the lady .going in the market, then he say he walked around the back and tried to get in the door, so he couldn’t get in the door. When he came back around he seen the two old, seen the two ladies, then the lady walked in the house, so he said I planned this. He say I going to play this thick. * * * He said, he say I play this thick. He say when they came to the door I knocked ■on the door and said who is it. He said, collectors. And when the lady got the door half way open, that is when he say he forced his way in. * * * He said when he broke the chain, he said there was a lady upstairs, he say he hit, somebody hit the lady and say when the lady upstairs heard them scream, then when the other lady upstairs and somebody somebody ■chased them back upstairs. I have forgotten who he say chased her back upstairs. * * * He say, after he told me that, then, that is when he had all that money.” Golden saw money in the ^appellant’s possession; “he had a couple of tens and fives and •ones.” He also saw that the appellant had brass knuckles, a ■gun and a night stick. The appellant told him that he went out the back of the house “and somebody said halt, and somebody ■ shot at him, and he jumped over the back wall.” While he was in the presence of the appellant, Cephus came up and Cephus :and the appellant “got to fussing” and the appellant gave 'Cephus some money.

Jerome Wells, age 13 years, was one of the group shooting '“Skelly.” He heard the appellant say that “he had beat these two old ladies with iron pipe and brass knuckles.”

Evidence sufficient to prove the corpus delicti was admitted by stipulation.

As part of its case, the State, in addition to the evidence as above summarized, offered a statement made by the accused on 9 November 1966 at Boys’ Village. ****8 On the issue of the voluntariness of the statement, the State produced Detective Howard Corbin of the Homicide Squad of the Baltimore City Police Department. Corbin said that he interrogated the appellant in a large office or assembly room at the Village in the presence of Detective William Craig, Detective Edward Chian and John Swenson, a social worker employed at the Village. Prior to questioning, the appellant was “advised that he could remain absolutely silent, that he had a right to an attorney to advise him, or be present with him during the taking of any statement whatsoever. If he wished to stop on making these statements he could do so at any time he so desired * * * He was also advised that any statement that he made could be used against him in a court of law * * * If he did not have an attorney, or couldn’t afford an attorney, that we would be obligated to appoint counsel for him, and that the counsel would be present during the taking of the statements.” As each right was explained to the appellant he was asked if he understood and he replied that he did understand. When all the rights had been explained to him he was asked whether or not he wanted to make a statement and he said that he did. No threats were made to him, no promises were made and no force of any type or threat of force was used. Swenson testified that he had charge, as a social worker, of the cottage to which the appellant was assigned. He was present during the entire interrogation on 9 November. No promises were made to the appellant, no force was used on him, no one placed “any hands” on him. “We sat down and talked calmly. The detectives informed the boy of what his rights were, and things like that * * * He understood everything * * * that is the way he appeared.” The appellant appeared calm; “his attitude seemed to be one to want to cooperate with the interrogators.”

The defense produced the mother of the appellant on the issue of the voluntariness of the statement. She said that the police requested her to come to the police station about 11:00 P.M. on 2 November 1966. A white officer and a negro officer were with the appellant. She did not know the names of the officers. The white officer left the room and the negro officer asked the appellant if he was ready to make a statement. The appellant said “he didn’t have nothing to tell him. He told him twice. And as he told him that Alphonso kind of raised his voice at him a little bit, and this colored officer hauled off and slapped him and shoved him in that chair over there and told him not to get smart with him. He done told him he didn’t know nothing about what happened, and said he didn’t have nothing to happen, and he said, furthermore, I didn’t ask you to go get my mother.” He made no statement at that time. She said the police got her another time at night but she did not know the date. On cross examination she said that it was sometime in November and when she arrived at the police station the appellate told her he did not send for her. On cross examination of her with regard to her first visit at the police station on 2 November, it appeared that the police informed the appellant as to certain of his rights but she could not recall what was said to him in any significant detail. The defense also called Detective Craig. The substance of his testimony was that he had not informed the appellant’s mother that they were going to talk to the appellant on 9 November. The appellant did not testify on the issue of voluntariness.

The trial court found on the evidence before it as to voluntariness that the appellant was advised as to his constitutional rights and that he understood them; that he acquiesced in giving a statement and that the statement was made freely and voluntarily, without any threats and promises. The statement was held to be admissible over objection. Corbin testified that the appellant said that Willie June and Gary Cephus (apparently also known as Lee Cephus; he is sometimes referred to as “Lee” by the appellant) went into the house with him. Willie went in first, the appellant next and Gary last. The appellant and Lee went into the kitchen. Willie said all the good stuff is upstairs and went to the second floor. A woman came out of the kitchen and Lee struck her. The appellant heard noises upstairs like someone fumbling and fighting. He pulled the telephone from the wall. Lee told him to do it. Antonio told them the police were coming. Lee ran out the back and the appellant followed. Willie ran out the front door. The appellant fired two shots at the police and ran. “I got $7.25 or more from the — Willie June told me on Brunt Street that if I told on him he would kill me.” The appellant was asked where he was before going into the house on North Avenue and he said that he, Willie June and Lee sat on the steps of 1323 West North Avenue. A man came out of the house they went in and a lady came out of “the house of the steps we were seated on.” The appellant said they hid “our stuff out in the back yard of 1433 Brunt Street.” They had guns and knives. He said, “I did not tell you anything about Willie June before because I was afraid of him.”

At the conclusion of the evidence offered by the State the appellant moved for a judgment of acquittal as to murder in the first degree on the ground that there was not sufficient evidence that the homicide was committed in the perpetration of a robbery “or a felonious crime happening.” The motion was denied.

The defense called .Pearl Stallings who lived at 1326 West North Avenue. Her testimony corroborated the testimony of Joseph DiPaula with regard to the boy standing on the steps of 1323 West North Avenue when DiPaula left that house. She also said she saw the boy a second time and he went in the vestibule door. She neither saw nor heard anything else.

The appellant testified in his own behalf. He denied breaking into or entering the house. He admitted telling the boys who testified for the State that he “knew something about it” but denied he told them that he “did something.” He said he had been hooking school and was arrested on 5 October 1966 for watch stealing. He gave them the names of Lee, Wells, Golden and Matthews as boys “I hang around with.” He said that the statement he gave the police on 9 November was not a true statement. He claimed that he made the statement because the police told him at Boys’ Village “that everything is all right, go ahead, tell us the story, get it off your chest. I still denied it; ain’t nothing going to happen, you stay here for a while, everything is okay. So I say, if I give you a story will you leave me alone? Yuh, we leave you alone. I give them the statement.” In answer to his counsel’s question, “Are you saying now that you had absolutely nothing to do with this crime up on North Avenue?” he replied, “Yes, sir.” He had nothing else to tell the court in reference to the case.

At the close of all the evidence the appellant renewed the motion for judgment of acquittal previously made and it was denied.

On appeal from the judgment the appellant contends that the statement was improperly admitted in evidence and that the evidence was not sufficient to sustain the convictions.

In Luther Robinson v. State, 3 Md. App. 666, Chief Judge Murphy, speaking for this Court, said:

“It is well settled that in order for a confession to be admissible into evidence against an accused, the State must prove that it was voluntary and not the product of force, threats, promises or inducements. * * * Otherwise stated, to be voluntary, a statement cannot be ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ * * * In post-Miranda trials, where the State seeks to introduce a statement taken from an accused during custodial interrogation, it must, as part of its proof of voluntariness, affirmatively show that all warnings required to be given to an accused by that case prior to such interrogation were so given, * * * and that the accused, in giving the statement, understood his rights and knowingly and intelligently waived them, * * *. The basic standard governing the admissibility of an extra-judicial statement is whether, considering the totality of the circumstances, the statement was voluntary. * * * Within this constitutional framework, the question of whether a confession should be admitted in evidence is ordinarily a matter for t¡he trial court to decide and its determination will not be disturbed on appeal unless there was a clear abuse of discretion. * * *. (citations omitted).”

We find no clear abuse of the discretion of the trial court in admitting the confession of 9 November 1966. We think that the State proved that it was voluntary and affirmatively showed that all warnings required to be given prior to interrogation were so given and that the appellant, in giving the statement, understood his rights and knowingly and intelligently waived them. The age of the appellant, in itself, did not render the confession involuntary. Harris v. State, 1 Md. App. 318, 322. The appellant contends that prior statements made by him were not shown to have been free and voluntary and therefore the statement of 9 November was not admissible. We do not agree with the appellant that the rule is that the giving of an involuntary statement necessarily precludes the admission of any subsequent statement. In Clewis v. Texas, 386 U. S. 707, it was held, under the circumstances of that case, that a subsequent confession to the same crime could not be separated from an earlier coerced confession because “there was no break in the stream of events * * * sufficient to insulate the statement from the effect of all that went before.” In Keller v. State, 2 Md. App. 623, we found on the facts of that case that the compelling background of improper inducements which produced a first confession was not so dissipated as to render a subsequent confession free and voluntary. In Combs v. State, 237 Md. 428, there were three confessions made by the accused. The first was. not freely and voluntarily given. The second followed the first in a matter of two or three minutes and the third was but a formal transcribing of what had already been said. The Court said, page 435:

“After the first confession was obtained from Combs, the second and third appear to have flowed from him as a natural and unbroken sequence without the break of a significant passage of time or a change in environment or of interrogators, to remove the initial taint * * >¡í 99

We think the rule is as stated in Combs at page 435 :

“[W]here one confession is held to be involuntary and inadmissible, the State must overcome a .presumption that the improper influence which produced the first confession is still in effect until a cessation of that influence is definitely shown, and the evidence to overcome and rebut such a presumption must be clear, strong and satisfactory, and any doubt on this point will be resolved in favor of the accused.”

In the instant case we cannot say from the record before us that the State met the burden of proving that whatever statements the appellant made on 18 October, 2 November and 3 November were free and voluntary. But we do not think that it was necessary that it do so. Even if it be assumed that those statements were not free and voluntary, including a failure to give the Miranda warnings, we feel, as between them and the confession of 9 November, that there was a significant passage of time and a change in environment and of interrogators as to remove any initial taint. The statements prior to that of 9 November were given in a police station; the statement of 9 November was given in a large office or assembly room at Boys’ Village, six days after the last prior statement. There was a substantial change in interrogators. We think the presence on 9 November of John Swenson, the social worker at Boys’ Village, was significant. He said that he worked with the boys at the Village in counseling capacities and performed other duties entailing social work at the institution. The appellant was in a cottage in the charge of Swenson. Before questioning the appellant the officers “were briefed on our procedure at Boys’ Village, which is that whenever boys to be interrogated by law enforcement officers, or detectives, that a social worker be present at that time.” Considering all of these factors and the absence of any allegation or evidence by the appellant that his confession of 9 November was induced by or resulted from his prior statements or the circumstances surrounding them lead us to believe that there was a break in the stream of events sufficient to insulate that confession from the effect of all that went before so that anything improper that may have attended the giving of the prior statements was so dissipated as to not render the confession offered by the State free and voluntary. We think that the totality of the circumstances attending the confession given by the appellant on 9 November does not require a reversal of the trial judge’s finding that it was voluntary.

In support of the contention that the evidence was not sufficient to sustain the conviction, the appellant states in his brief: “If the Court should reverse the findings on the admissibility of the statement, there would not be sufficient evidence to convict the Defendant.” In that event, he urges, there would be no corroboration of the testimony of Vega, an accomplice to the crime. We agree that the evidence, including the statement of ■the appellant, was sufficient to prove the corpus delicti and the criminal agency of the appellant. As we have found that the statement was properly admitted, the contention fails. We need not decide whether the testimony of Vega, assuming him to be an accomplice, was sufficiently corroborated as required by the rule stated in Boone v. State, 3 Md. App. 11, 19.

On appeal, the appellant presents no contention that the homicide was not murder in the first degree. In any event, we-think that the evidence justified the court below in a first-degree’ verdict because the homicide was committed in the perpetration of a robbery. Md. Code (1967 Repl. Vol.), Art. 27, § 410. There was evidence that the appellant and his companions were going to rob the DiPaula sisters on the street by snatching a pocketbook from them but were deterred by the presence of “too many people.” They decided to “wait until they go in the house then we get their money.” They knew the women were-in the house when they broke in and we think it clear that they entered the house with the purpose and intention of taking the property of the women from them by means of actual or implied force — the crime of robbery — and committed that crime, killing Rosina DiPaula in its perpetration. See Harrison v. State, 3 Md. App. 148.

Judgment affirmed.

      . It is not clear from Vega’s testimony but it appears from other evidence that the DiPaula sisters were walking on North Avenue and that it was the pocketbook of one of the them that June wanted to snatch.

      . It seems that “Elders” is Willie Green Elder which is apparently the correct name of Willie June. Willie Green Elder was indicted with the appellant.

      . The appellant testified that he had been arrested on 5 October 1966. He had been hooking school and was picked up for watch stealing. He apparently was not held at that time for he further testified that “they questioned me, turned me loose, picked me up, questioned me, turned me loose.” He was presented and indicted on the murder charge on 15 November 1966.

      . On cross examination of Detective Corbin on the issue of the voluntariness of the statement, it seems, although the record is not clear, that the appellant also made a statement on 18 October 1966, on 2 November 1966 and on 3 November 1966. Corbin was not present on 18 October but was present on 2 November and 3 November. As to 3 November Corbin said the appellant was “advised of his rights again,” and that the appellant’s mother and officer Walter Howard were also present. Corbin denied striking the appellant or pushing him into a chair. After the trial court admitted the statement of 9 November, Corbin testified as to the contents of that statement, as hereafter set forth in this opinion. On cross examination of him, defense counsel elicited from him the content of the statement of 2 November. It was taken at 9:50 P.M. in the presence of Corbin, Lt. James Cadden and Sgt. Edward Bromwell at the Homicide Office at police headquarters. After the appellant was advised of his rights, he said that he was with Lee (apparently Lee Cephus, although he is referred to at one place as Herman Lee) and Antonio (Vega) in front of the food market on North Avenue and saw two old ladies. Vega suggested they snatch the ladies pocketbooks but the appellant said there were too many people. The ladies went down North Avenue and entered a house. The boys waited for them to come out and when they did not come out the appellant suggested they go back down to the food market. Lee said, “No, let’s go and knock on the back door.” Antonio said that he was going to keep watch. The appellant went around the back at Lee’s direction but there was a dog back there. He came back to the front of the house but before he got there he heard someone screaming. When he got to the front of the house the door had been “busted open, the door had been kicked off the hinges.”
      The appellant walked up the steps, heard a shot and ran. He ran across North Avenue to the 1400 block Brunt Street and went in a cellar of an empty house at 1433 Brunt Street. Pie heard Eugene Golden talking on the front steps. Lee arrived. Lee said he had rung the bell and Antonio kicked the door in. The lady hollered that she was going to call the police and Antonio pulled the telephone off the wall. Antonio said he hit the lady and knocked the other lady out. Lee found some money, heard a shot and ran out the back door. Antonio went out the front door. Lee and Antonio had a lot of money, “some tens, three five dollar bills, and a whole lot of ones.” The appellant asked for his share but neither would give him any.
      The record does not disclose the content of any statement made by the appellant on either 18 October or 3 November.

      . As hereinbefore noted, the appellant did not testify as to the voluntariness of the statement. In any event, this allegation of what was said to him was refuted by the testimony of Corbin and Swenson.

      . We note that the statement of 3 November 1966 was placed in evidence by the appellant upon cross examination of a State’s witness on the merits of the case. It was not offered on the issue of the voluntariness of the statement of 9 November.

      . The evidence indicates that warnings were given as to the statements of 3 and 3 November, although a mere statement that the appellant was “advised of his rights” would not be sufficient proof under Miranda.

      . The record does not disclose who the interrogators were on 18 October but Detective Corbin was not one of them. On
        2 November Et. James Cadden conducted the interrogation and

      . The instant case is not factually apposite to Kier v. State, 216 Md. 513, where the defendant entered a home in the daytime and murdered a woman therein. The evidence in Kier showed that it was not the purpose or intention of the defendant to commit an assault upon the woman to take property away from her but rather to steal articles from the empty home or at least a home he thought was empty. It was on those facts that the Court concluded that a verdict of murder in the first degree was not properly predicated upon a finding that the murder occurred during the perpetration of a robbery.
      It appears that the breaking and entering of the dwelling house in the instant case was not committed in the nighttime. In Maryland “nighttime” with regard to burglary is not defined by statute. The ancient rule was that from sunset to sunrise it was night for the purposes of burglary. 1 Hale P. C. 550. But at common law “nighttime” was not so rigidly fixed. “If there be daylight or crespusculum enough, begun or left, to discern a man’s face withal, it is no burglary. But this does not extend to moonlight.” 4 Blackstone Comm. 224. And it does not extend to artificial light; nor,, on the other hand, can smog or fog turn “daytime” into “nighttime.” Perkins on Criminal Law (Í957) Ch. 3, §1E, p.165. “The time when the moon or the sun rises or sets on a particular day is judicially known * * * Judicial knowledge extends to the duration of day and night at a particular place at a particular time, and therefore that at a certain hour on a certain date it was or was not daylight * * * If they are proper subjects of judicial knowledge, the judge may inform himself in any way which may seem best to his discretion, and act accordingly.” (citations omitted). Bowser v. State, 136 Md. 342, 347-349. According to the Almanac Office of the Naval Observatory the sun set in Baltimore, Maryland on 4 October 1966 at 6:47 P.M. daylight savings time. The police report of the crime was received “about 6:40 P.M.”, seven minutes before sunset. Therefore the dwelling house of the DiPaula sisters was broken and entered in the daytime and not in the nighttime. Thus the crime was not burglary, either at common law or under the provisions of Md. Code (1967 Repl. Vol.), Art. 27, § 30 a, both of which require the breaking and entering to be in the nighttime. Code, Art. 27, § 410 provides that murder is murder in the first degree when committed in the perpetration of or attempt to perpetrate specifically designated crimes — rape, sodomy, mayhem, robbery, burglary and escape or attempt to escape from a penal institution. But in view of our finding that the murder in the instant case was committed in the perpetration of a robbery, it is not necessary that we determine whether the crime proscribed by Code, Art. 27, § 30 b (the breaking of a dwelling house in the daytime with intent to commit murder or felony therein or with intent to steal personal goods of another of any value therefrom) is a burglary within the purview of § 410. We noted in Reagan v. State, 2 Md. App. 262, 267, however, that § 30 b does not designate the crime proscribed therein to be a burglary as does § 30 a.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    HAROLD LATH CHARLES v. STATE OF MARYLAND
    [No. 167,
    September Term, 1967.]

      Decided May 6, 1968.

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

      Norman F. Summers, with whom was Harry D. Barnes on the brief, for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Harry J. Goodrick and Julius A. Jodlbauer, Assistant State’s Attorneys for Cecil County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Harold Lath Charles, the appellant, complains of a conviction of carnal knowledge and assault in a jury trial in the Circuit Court for Cecil County, alleging an insufficiency of evidence to support the conviction and that the trial judge committed error because he advised a potential defense witness as to his rights under the Fifth Amendment of the Constitution of the United States.

Charles’ argument that his motion for acquittal at the conclusion of the testimony should have been granted, is based on the proposition that testimony of the fifteen year old prosecuting witness was insufficient to present a jury question. We have repeatedly held that testimony of the victim of a crime is sufficient to support a conviction for rape. Johnson v. State, 3 Md. App. 219, 238 A. 2d 295, Reed v. State, 1 Md. App. 662, 232 A. 2d 550. To the same effect see Booth v. State, 225 Md. 71, 169 A. 2d 388.

Charles’ second contention that it was error for the trial court to warn one of his prospective witnesses of his rights under the Fifth Amendment of the Constitution of the United States, was not in any manner presented to the trial court, and is therefore not before us for review, Maryland Rule 1085. The only relief requested of the trial judge was that the jury be instructed that they could not draw an unfavorable inference against Charles from the refusal of the prospective witness to testify. The request was granted. In addition, Charles made no proffer of what testimony was to be expected from the witness nor did he proceed to question the witness question by question after the privilege was claimed so that the court could properly rule on each question. In Gaylord v. State, 2 Md. App. 571, 235 A. 2d 783 we declined relief in a similar situation, saying at 2 Md. App. 571 at 575 :

“It may he argued the lower court was perhaps overzealous in protecting the rights of the witnesses, Shackleford and Norris, but it must be remembered that they were both infants and were entitled to be informed that their testimony could seriously tend to incriminate them.”

In oral argument Charles raises more serious questions. He alleges, and it was conceded by the Attorney General, that at the time of the original trial Charles’ trial counsel had been elected State’s Attorney for Cecil County; but that he had not at that time taken his oath of office. At the time of sentencing, after the receipt of a probation report, Charles was defended by the same counsel who had, in the interval, qualified as State’s Attorney for Cecil County. He was prosecuted by one of the Assistant State’s Attorneys. The Attorney General admits error in that the dual capacity of Charles’ counsel at the time of sentencing deprived Charles of due process of law. The Attorney General denies, however, that it was reversible error for Charles to be defended at the trial by a person who had been elected State’s Attorney but who had not as yet qualified for that office.

Under Maryland Rule 1031, we would ordinarily be precluded from considering these questions since they were not raised in appellant’s brief, Hyde v. State, 228 Md. 209, 179 A. 2d 421 construing Rule 831 which governs appeals to the Court of Appeals of Maryland. Rule 831 is substantially the same as Rule 1031. See also Tawes v. Aerial Products, Inc., 210 Md. 627, 124 A. 2d 805. However, in view of the Attorney General’s concessions we will affirm the judgment and remand the case for resentencing at a time when Charles is represented by counsel, who does not have conflicting responsibilities.

While we see nothing improper about the sentence imposed by the trial judge, and while our examination of the record discloses no suggestion that Charles was not vigorously and competently represented, we must hold that due process of law is denied to a person whose counsel has a sworn obligation to prosecute him. In Baynard v. Director, 2 Md. App. 159, 233 A. 2d 474, we held that it was improper for a State’s Attorney to seek to revoke the probation of a person he had previously defended at the trial, relying on Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158. Under Article 5, § 9 of the Constitution of Maryland the State’s Attorney is required to perform such duties as are prescribed by law. Md. Code Art. 10, § 34 provides:

“The State’s Attorney for each county and the City of Baltimore shall, in such county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested.”

Since the contention concerning the unfairness of the original trial was not briefed or conceded, we decline to consider that question in these proceedings.

Judgment of conviction affirmed and case remanded for resentencing in accordance with this opinion.


text:
    WILLIAM RASNICK v. STATE OF MARYLAND
    [No. 200,
    September Term, 1967.]

      Decided May 6, 1968.

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

      Solomon Reddick for appellant.

      Alfred J. O’Ferrall, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E.

      Moylan, Jr., State’s Attorney for Baltimore City, and A. Samuel Peregoff, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

William Rasnick, the appellant, contends that his conviction for murder in the first degree in a trial before the court in the Criminal Court of Baltimore should be reversed because there was insufficient evidence to support the proposition that the death occurred during the perpetration of an attempted robbery.

The evidence adduced at trial on January 19, 1967 showed that Frank John Jordon, male, 5'4" tall, weighing 98 lbs., died on August 8, 1966, as a result of head injuries. The autopsy report admitted into evidence by stipulation placed the time of the injury at about 7:30 a.m. on August 1, 1966.

The only eyewitness, except the participants, to the occurrence was Patrick J. O’Donnell, 73 years of age, who testified that at approximately 5 :40 p.m. on August 1, 1966, he was sitting on the steps of 102 North Washington Street; that he saw a man coming out of the bar at 100 North Washington Street, cross Washington Street; and approximately a minute or two later another man came out behind him. The second man he identified as Rasnick, the appellant, herein. The witness related that Rasnick walked after the first man calling to him, “wait up.” The first man did not stop, but that Rasnick caught up with him and they engaged in a conversation which the witness did not overhear. Rasnick then “hit the other man and over the steps he went.” The other man then got up, came back toward Rasnick, hollering, “He is robbing me. Help, help, he is robbing me.” Rasnick then hit the other man again “with his fist and the man went over the step again.” Rasnick then walked around the steps where the other man was lying and raised his foot and brought it down.

Rasnick was granted a recess in order to secure a transcript of the testimony at the preliminary hearing. On March 9th, 1967 the witness, O’Donnell, testified on further cross examination as follows:

“Q Mr. O’Donnell, once again, briefly, would you tell the Court exactly what you saw as you were sitting on the steps on the day in question ?
“A Well, I was sitting on the steps and I saw the deceased come out of the bar, cross the street, and a few minutes later this Mr. Rasnick come out. He went across behind him and hollered for him. He got on the south side of Fairmount Avenue. Seen him talking there and the first thing I know this man, Rasnick, looked to me like he throwed him across the steps. He could have hit him. He went across the steps. The man got up, went around the step again. At this time, this deceased man hollered ‘Help, he is robbing me.’ He hit him again and went over the steps. Then he fell again and I saw Mr. Rasnick, whatever his name is, right there, put his foot up like he stomped him.
“Q I believe it was your testimony just now, Mr. O’Donnell, that when the two men first came together you stated Mr. Rasnick, and I think you used the words ‘throwed him across the steps’, or ‘He could have hit him.’ ?
“A Correct.
“Q Do you recall testifying in this case, in your prior testimony, that the Defendant in this case, Mr. Rasnick, struck the deceased ?
“A Well, he looked to me like he struck him. Could have been he just grabbed him, throwed him across the steps.
“Q Of course, is it true you are not sure whether or not he struck him or threw him across the steps ?
“A No, I’m not sure. I was a little too far away to see it.
“Q After the Defendant, Mr. Rasnick, either threw or struck the deceased and he went across the steps, I understand it is your testimony the deceased then got up, correct?
“A That is correct.
“Q Then the deceased proceeded towards the Defendant, Mr. Rasnick, correct ?
“A Correct.
“Q At this particular point did you see the deceased strike Mr. Rasnick ?
“A No, I did not.
“Q Did you see Mr. Rasnick strike the deceased ?
“A No, only thing I saw at that time, the deceased, this man hollering ‘Help, he is robbing me. He is robbing me.’ Then he either struck or throwed him across the steps again.
“Q This second time you are not sure whether or not the Defendant struck or threw him across the steps ?
“A No, I’m not. That is correct.
“Q Again, it is my understanding, Mr. O’Donnell, when the deceased got up after he was thrown down the first time or struck down the first time, he came towards the Defendant, correct ?
“A Correct.
“Q Approximately how far away was he from the Defendant when he was getting up in terms of feet ?
“A When he got up from being hit the first time ?
“Q Yes.
“A Approximately four to five feet.
“Q At no time did you see the Defendant go towards the deceased, is that correct ?
“A That is correct.
“Q When the deceased got to the Defendant, Mr. Rasnick, after getting up, did you see him raise his hands at all ?
“A No, I did not at that time. When he started, when the deceased started hollering ‘Help, I’m being robbed,’ then he either hit him. . .
THE COURT: Who is ‘he’? The Defendant, you mean ?
THE WITNESS : Yes, Your Honor.
THE COURT: The reason the Court said ‘Defendant’ was because the witness was pointing to the Defendant in answering the Court’s question. Is that stipulated ?
MR. PEREGOFF: Yes.
MR. MAXWELL: Yes, sir.
THE COURT: Very well.
THE WITNESS: Either hit him or throwed him across the steps again, and the Defendant went around, picked his foot up, looked like he stomped him.
BY MR. MAXWELL:
“Q You didn’t see that ?
“A No, I did not.
“Q Did you see the Defendant at any time himself trip across the steps ?
“A Not that I can recall.
“Q You recall testifying at the Homicide hearing in Municipal Court on October 7, 1966. Remember testifying in this case ?
“A I testified practically the same statement as I’m giving now.
“Q Do you recall, sir, testifying in that particular case: ‘They must have gotten in a little argument, fight or something. This man drove him across the steps with his fist and the man got up and come around —’. Do you recall that ?
“A Yes, I recall that because they stopped in front of these steps before any argument.
“Q Recall testifying in your first testimony in this case Mr. Rasnick used his fist to strike the deceased ?
“A Looked like his fist to me. I told you I was across the street.
“Q Do you remember, as we stated in the first hearing in this case, when you gave a statement to the Baltimore City Police Department right after you witnessed this incident you stated the man was thrown over the steps ? Recall saying that to the Police Department?
“A Yes, I think I did.
“Q And again this afternoon you testified, Mr. O’Donnell, you are not sure whether he threw him or struck him ?
“A Or struck him, that is correct.
“Q Do you recall in the preliminary hearing at the Police Court being asked the question: ‘Pie came up behind him, had an argument. Then who struck the first blow ?’ The answer was: ‘That I don’t know, but I do know one man went over the steps and it wasn’t that man,’ indicating the Defendant. Remember that question and answer ?
“A I do.
“Q You don’t know, is that correct, who actually struck the first blow in this altercation ?
MR. PEREGOFF: Objection.
THE COURT: Sustained. With your permission, Mr. Maxwell; Mr. O’Donnell, did you see the decedent strike or attempt to strike at any time the Defendant?
THE WITNESS : I did not.
BY MR. MAXWELL:
“Q Recall being asked this question in Municipal Court? Mr. O’Donnell, for the record, I am reading from the transcript of the Homicide hearing at page 16. Questioned by Mr. Federico, Court appointed in this hearing: ‘In any event, you didn’t see any robbery yourself?’ Answer: ‘No, no, no.’ Question: ‘Of course not. You don’t know who struck the first blow, do you?’ Answer: T do not, no.’
“A That is correct.”

Rasnick testified that he began drinking with the deceased early on the day of August 1, 1966; and that the deceased had fallen down some steps at approximately 12 Noon. His story continued that he and the deceased had gone to Jay’s Bar where they were refused service; they then went to Howard’s Bar at 100 N. Washington Street, where they purchased beer, which he paid for; and that thereafter the deceased left the bar and went across the street, and he followed. An argument then ensued, the deceased reaching out and grabbing him by the shirt collar, at which point Rasnick stated he then pushed him and he fell across the steps, that the deceased then got up and came back at him saying: “God damn you, I’ll cripple you,” when he then hit the deceased and knocked him across the steps. While the deceased was lying across the steps, blood trickling from his mouth, Rasnick related he then stepped over him and went to another bar. Rasnick contended that because of his hip injury, he could not run and had to defend himself against the deceased. On cross examination he denied stomping or attempting to rob the deceased. It was also learned that Rasnick was S'6" tall and weighed about 149 lbs.

It was stipulated that Rasnick could not run because of an old hip injury.

A careful review of the record reveals that the sole evidence to support the proposition that Rasnick was engaged in an attempted robbery at the time the injuries causing death occurred, was the statement of the deceased: “He is robbing me. Help, help, he is robbing me,” which statement was made at the time the deceased was advancing towards Rasnick, the accused. The trial judge found the testimony of Mr. O’Donnell to be entirely credible, and we, of course, accept that finding; but we do not think that that statement alone, in view of the other evidence, is sufficient to support a finding beyond a reasonable doubt that Rasnick was attempting to rob the deceased. There is no evidence that he attempted to take anything from the deceased; that he made any search of the deceased’s clothing to find any valuables; and, in fact, the evidence discloses that after the deceased was lying helpless on the sidewalk, Rasnick voluntarily walked away, even though no one interrupted the proceedings.

In Estep v. State, 199 Md. 308, 86 A. 2d 470, 473 the Court of Appeals of Maryland said:

“No matter how sordid the case and how suspicious the circumstances, we cannot permit a person charged with crime to be convicted without evidence. The conjectures of the trial judge might be entirely correct, and the evidence produced before him might be false in important particulars. Nevertheless, a conviction without proof cannot be sustained under the laws of this State. A man is innocent until he is proved guilty, and there must be evidence which leads to such a result. Since we find there was no such evidence in this case, the judgment must be reversed.”

Under Maryland Rule 1086 we find the evidence insufficient to support the judgment which, therefore, must be reversed.

Judgment reversed and case remanded for a new trial.

      . It will be noted the time of the alleged offense was at a later hour.


author: Per Curiam.

text:
    WILLIAM HALSTEAD v. STATE OF MARYLAND
    [No. 205,
    September Term, 1967.]

      Decided May 6, 1968.

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

      William R. Lenhard for appellant.

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

William Halstead, the appellant, was convicted of unauthorized use of a motor vehicle in the Criminal Court of Baltimore, Judge James K. Cullen presiding without a jury.

In view of the contentions it will be unnecessary to review the facts of the case.

Halstead first contends that the trial judge should have ordered a mistrial after the State offered into evidence a waiver of jurisdiction by the Juvenile Court. His reasoning is that under Maryland Rules 705 and 911 the waiver must be entered on the docket entries but need not be offered into evidence. He further reasons that the attempt to enter the waiver into evidence was a bad faith effort on part of the Assistant State’s Attorney to call to the attention of the court the fact that Hal-■stead was considered “a bad boy” by the juvenile judge who allegedly, by custom and usage, did not waive juvenile jurisdiction unless he, the judge, considered the juvenile “a bad boy.” There are a number of answers to Halstead’s contentions: (1) His objection to the evidence was sustained by the trial judge; there was no motion for a mistrial; therefore, under Maryland Rule 1085 there is nothing before this court to review; (2) there is nothing in the record to support the alleged custom and usage and (3) there is nothing in the record to show the bad faith of the State’s Attorney, but on the contrary, it appears to be an innocent error because he was not familiar with Maryland Rules 705 and 911. This court will not ■assume that bias, prejudice or improper influence prejudiced the defendant; the burden is on him to show that such fact existed. Charles v. State, 1 Md. App. 222, 228 A. 2d 620, Borman v. State, 1 Md. App. 276, 229 A. 2d 440.

The second contention is that the court should have declared a mistrial at the time of sentencing. Since no motion for a mistrial was made, there is nothing before this court to review, Maryland Rule 1085. The contention seems to be that In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (May 15, 1967) should be applied retroactively to void the waiver of jurisdiction by the juvenile court, since the sentencing was on June 26, 1967 and subsequent to the Gault decision, and Hal-stead, allegedly (this is not shown by the record) was without counsel at the waiver hearing. The record does show that the waiver was signed in the Juvenile Court on February 8, 1967. In Hammer v. State, 3 Md. App. 96, 238 A. 2d 567, we reviewed and rejected this contention. We held that In re Gault applied only to waiver hearings held subsequent to May 15, 1967, assuming, without deciding, that In re Gault required counsel at waiver hearings.

Judgment affirmed.


text:
    CARLTON RUSSELL EGGLESTON v. STATE OF MARYLAND
    [No. 274,
    September Term, 1967.]

      Decided May 6, 1968.

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

      Millard S. Rubenstein, with whom was Roland Walker on the brief, for appellant.

      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 Hilary D. Caplan and Charles A. Herndon, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Per Curiam.

On May 19, 1967, the appellant, Carlton Russell Eggleston, was convicted of statutory rape in the Criminal Court of Baltimore by a jury, Judge Albert L. Sklar presiding. A ten year sentence was imposed, to be carried out under the jurisdiction of the Maryland Department of Correction. From the judgment rendered, appellant raises the following contentions on appeal :

1. That the court erred in instructing the jury that ignorance of the age of the prosecuting witness was no defense.
2. That the court erred in declining to instruct the jury that the State must prove intent.

The record discloses that on the evening of November 5, 1966, the prosecutrix, Hazel Wood, age 12, attended a party at a girl friend’s house. She testified that the party broke up at approximately 9:35 p.m. and that she and her friend, Nancy Jackson, age 15, started walking home together. They passed a bar in front of which appellant and his brother were standing, and Nancy introduced Hazel to the boys. Appellant had been at the party though Hazel did not know him. The girls continued on, walking by themselves, until they reached a nearby filling station were Nancy used the bathroom. Afterwards, Hazel, walking 20-30 feet behind Nancy, was accosted by appellant and his brother. She testified that appellant put one hand over her mouth and the other around her waist, telling her to keep quiet and to cooperate. He pulled her down an alley and into a vacant house, where he told her that if she did not keep still lie would kill her. He then had sexual relations with her, as did his brother, after which they climbed out of the house leaving her behind. The prosecutrix notified her mother of the incident when she arrived home at about 11:00 p.m. and they called the police. Shortly thereafter, Hazel, accompanied by the police, directed them to the vacant house where they found her panties.

Dr. George Wells, the examining doctor for the Baltimore Police Department, testified that he examined the prosecuting witness at 2 :00 a.m. on the morning of November 6, 1966; that she had been virginal before this incident; that there had been forcible penetration, evidenced by the torn hymen; and that there were no lacerations on her body.

Appellant testified, on his own behalf, that he was never in a vacant house with the prosecutrix, and that he never had sexual relations with her.

The court did not err in instructing the jury that ignorance of the age of the prosecuting witness was no defense. Appellant rests his contention on testimony elicited from a girl friend that the prosecuting witness told her she was fifteen, and that she associated with an older crowd. However, the generally accepted state of the law as set out in Wharton’s Criminal Law, Anderson, Volume 1, Section 321, p. 662-663 (1957), fails to vindicate appellant’s proposition:

“It is no defense that the defendant did not know that the female was under the statutory age of consent. It is immaterial that the defendant in good faith believed that the female was above the prohibited age; that his belief, though erroneous, was reasonable; or that the defendant had been misled by the appearance or statements of the female.
“The defendant acts at his peril that the female may in fact be under the age of consent. The fact that the defendant cannot assert as a defense his bona fide belief in the victim’s age does not make unconstitutional the statutes under consideration.”

Appellant relies on People v. Hernandez, 393 P. 2d 673 (1964), which held that the reasonable belief that the girl was over the age of consent was a defense to a prosecution for statutory rape. However, in 8 A.L.R. 3d p. 1102, the annotation, citing numerous jurisdictions, indicates that until the Hernandez case it was the universally accepted view of the courts in this country that defendant’s knowledge of the age of the woman was not an essential element of the crime of statutory rape and that, therefore, it was no defense that the accused reasonably believed her to be of the age of consent.

In addition, the facts in the Hernandez case make it clearly distinguishable from the case at bar. There the girl testified she told the defendant she was sixteen, although it appeared that she was under sixteen. She had been living with the defendant for approximately a month prior to his arrest, and before that time had been living with another man.

We find no merit to appellant’s second contention. His argument stems from the use of the word “feloniously” in the indictment, which he alleges necessitates proof beyond a reasonable-doubt that he intended to carnally know a female under the age of fourteen.

The word “felonious” is generally employed to classify offenses and is not a distinct element of the crime. It is said to-be descriptive of the grade of the offense rather than the criminal act which constitutes the offense. See Harris v. State, 313 S. W. 2d 664, 669 (1958). A similar explanation is provided in Hochheimer’s Law of Crimes & Criminal Procedure, 2nd Edition (1904), at page 124. “Certain words are appropriated to the description of particular offenses and grades of offenses; no other words will supply their place. In indictments for felony,, the word “feloniously” is ordinarily necessary.”

In State v. Judd, 109 N. W. 892 (1906), the Court, concerned with a similar problem, stated, and we concur, that the-word “feloniously” as employed in the indictment imparted no-more than that the act charged was a felony, “and that since it was not descriptive of what is legally essential to the charge in the indictment, the word may be rejected as surplusage.” The-indictment utilized “feloniously” merely as a descriptive term- and in no way bound the State to prove intent, especially in view of the fact that intent is not a required element for the crime of statutory rape.

Judgment affirmed.

      . Rule 712 b now permits the use of the word “unlawfully” and provides that such term “shall cover both a felony and a misdemeanor and it shall not be necessary to use the word ‘feloniously’' in charging an offense.”


text:
    WILLIAM ALLEN SMITH v. STATE OF MARYLAND
    [No. 301,
    September Term, 1967.]

      Decided May 6, 1968.

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

      Marvin H. Schein for appellant.

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

Appellant was convicted of grand larceny and carrying a concealed weapon on September 18, 1967 in the Criminal Court of Baltimore, Judge Anselm Sodaro presiding without a jury. He was sentenced to a term of six years for the larceny and to a term of two years for carrying a concealed weapon, to run concurrently with the six-year sentence. On this appeal, appellant contends (a) that the evidence was insufficient to convict him on the larceny charge, and (b) that he was unlawfully arrested on the concealed weapon charge and that evidence taken from him as a result thereof was improperly admitted in evidence at the trial, and (c) that the evidence was insufficient to support his conviction for carrying a concealed weapon.

It was established at the trial that appellant went to the home of Wallace Westcott in Baltimore City on the evening of October 8, 1965; that appellant was there looking for work and Westcott put him up for the night because he had no place to stay; that Westcott agreed to take appellant to a friend’s house the next morning and also agreed that appellant should return to his home for work the following Monday; that Westcott retired at approximately 1:00 a.m., after checking that everything in the house was locked up for the night. Upon arising at 5 :00 a.m., Westcott discovered that appellant was gone and that approximately $33.00 had been taken from his pants pocket; that a camera and electric razor had also been taken. There was evidence showing that Westcott checked to see if the doors and windows were still locked and discovered that there was no forced entry. The appellant did not return to Westcott’s house as he had promised.

On these facts, we hold that the evidence was sufficient to establish appellant’s guilt on the grand larceny charge and that the finding of the trial court was not clearly erroneous. Maryland Rule 1086.

We find no legally sufficient evidence, however, to support the conviction of carrying a concealed weapon. As to that charge, the record shows that appellant was sitting at the counter drinking a coke in a drugstore in Baltimore City on May 8, 1966 when a police officer, responding to a call that a man was in the drugstore “armed with a straight razor,” entered the store and arrested him. The arresting officer testified that upon entering the store, he observed that appellant “had the top of a straight razor protruding out” from his left side coat pocket of a sport coat. The officer testified that “the top part of it was visible from the coat”; that “as soon as you come in the door, you could see the top of the razor sticking out of the pocket there”; that the razor was not lying down inside the pocket, but “was sticking up”; and that it was “the top part of the razor where you put your finger through” that was protruding from appellant’s pocket.

Appellant’s conviction was based upon that part of Section 36 of Article 27 of the Maryland Code (1967 Repl. Vol.), which provides that no person “shall wear or carry any * * * razor, * * * concealed upon or about his person.” In Shipley v. State, 243 Md. 262, 269, it was held:

“* * * a weapon is concealed if it is so situated as not to be discernible by ordinary observation by those near enough to see it if it were not concealed who would come into contact with the possessor in the usual associations of life, but absolute invisibility is not required; since ordinary observation does not extend to a search unusually careful, thorough or detailed, made because of suspicion that contraband which is not visible by ordinary observation may in actuality be present.”

On the state of the record before us, it appears clear that the razor was discernible by ordinary observation; indeed, the police officer saw it immediately as he came through the door of the drugstore and he was responding to a call, presumably from a person within the drugstore, who saw appellant with the razor protruding from his pocket. Under these circumstances, we do not think the razor was concealed from ordinary observation within the meaning of the statute. While only part of it was visible, it is apparent that the part which was protruding was such as to make it clearly identifiable as a straight razor. This case is unlike Crosby v. State, 2 Md. App. 578, where the handle of the weapon was visible only because the defendant’s jacket, which was covering the weapon, became unbuttoned at a time when he was being observed by a police officer. Here, the weapon was visible in part to ordinary observation, and it does not appear that appellant was attempting to conceal it from plain view. We conclude, therefore, that appellant’s conviction for carrying a concealed weapon was clearly erroneous. See Annotation, 43 A.L.R. 2d 492, particularly at pages 510-516.

Judgment affirmed as to Indictment 2536 (grand larceny); judgment reversed and case remanded for new trial as to Indictment 2537 (carrying a concealed weapon).


text:
    JOE LOUIS GLADNEY v. STATE OF MARYLAND
    [No. 303,
    September Term, 1967.]

      Decided May 7, 1968.

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

      Gerald Siegel, with whom was Philip D. Quint on the brief, for appellant.

      H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and John H. Lewin, Jr., and Stephen Montanarelli, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Per Curiam.

The appellant was found guilty by a general verdict of possession and control of a narcotic drug by the court in the Criminal Court of Baltimore and sentenced to imprisonment for a term of S years.

On this appeal from the judgments he contends only that his arrest was illegal and therefore capsules containing a narcotic drug, offered by the State, were improperly admitted against him.

There was evidence produced by the State that on 12 June 1967 about 3:30 P.M. Detective Louis Patti of the Baltimore City Police Department, assigned to the Narcotic Unit of the Criminal Investigation Department, accompanied by Detective Howard Zakitis in an unmarked police car, observed a 1964 green Cadillac convertible automobile parked at an angle at a parking meter. A man Patti knew to be Carroll Pulaski was standing by the left door of the automobile having a conversation with the appellant, who was seated in the automobile behind the steering wheel. A man identified as Thomas Patterson was seated on the. right side of the appellant. Pulaski took a wallet out of his pocket and handed the appellant United States currency. The appellant handed Pulaski “a small piece of tinfoil, what appeared to be tinfoil to us at the time.” The officers stopped their vehicle directly behind the appellant’s automobile. Pulaski “turned and saw us and started walking real fast towards the pavement,” dropping the tinfoil in the gutter. Patti went after him, and identifying himself as a policeman, told him to stop and arrested him. Patti picked up the tinfoil, opened it and found in it two capsules containing a white powder. In the meantime, Detective Zakitis got out of the police car and walked toward the passenger side of the Cadillac. He saw Patterson throw a small green box from the automobile and some white capsules spilled from the box. Patterson and the appellant were arrested. Zakitis recovered the box and 94 capsules, some of which were in the box and some of which had spilled out when the box was thrown away. The contents of the two capsules wrapped in tinfoil and the 94 capsules in the green box were analyzed by a chemist for the United States Customs Laboratory and found to contain heroin hydrochloride, an opium derivative. The capsules and the report of the chemist were admitted in evidence without objection.

We think it clear that the question of the legality of the arrest of the appellant is not here material.* Assuming, arguendo, that the arrest was illegal, the evidence of which the appellant complains was not obtained by a search of him incident to his arrest. Where evidence was not seized as a result of an illegal search, it is not rendered inadmissible by an illegal arrest. Fisher v. State, 1 Md. App. 505. And even assuming, arguendo, that the evidence was illegally seized, the appellant is not helped. An objection to the introduction of illegally seized evidence may be waived by failure to object when the evidence is offered, as in the instant case, and where such objection has been waived, the evidence has the same probative force as if it were compétent. Gaudio and Bucci v. State, 1 Md. App. 455; Maryland Rules, 522 d 2.

The appellant does not directly contend on appeal that the evidence was not sufficient to sustain his conviction. In any event, we think that the evidence produced by the State, if believed by the trial court, as it obviously did, was legally sufficient to warrant findings by the trial court that the capsules containing a narcotic drug, wrapped in tinfoil and dropped by Pulaski, were handed to him by the appellant. Therefore the appellant had both possession and control of the drug as charged. The trial court was under no obligation to believe the appellant’s denials or explanations. Tillery v. State, 3 Md. App. 142; Dunlap v. State, 1 Md. App. 444. As the judgments were supported by substantial evidence, they were not clearly erroneous and this Court will not set them aside.

Judgments affirmed: appellant to pay costs.

      . Two co-defendants, Thomas Patterson and Carroll Pulaski, tried with the appellant, were convicted of the same offenses.

      . We note that an illegal arrest does not affect the jurisdiction of the trial court, is not a ground for dismissing an information or indictment and does not preclude trial and conviction for the offense charged. Powell v. State, 1 Md. App. 495; Nadolski v. State, 1 Md. App. 304.

      . While Mapp v. Ohio, 367 U. S. 643 held that evidence obtained in an illegal search and seizure may not be used in state prosecutions, it recognized that state procedural requirements to raise or preserve the question may still be respected. See Porter v. State, 230 Md. 535; Shorey v. State, 227 Md. 385.


text:
    MELVIN JOHN ADAMS v. STATE OF MARYLAND
    [No. 310,
    September Term, 1967.]

      Decided May 7, 1968.

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

      Howard B. Gersh, with whom were Feldman and Gersh on the brief, for appellant.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State’s Attorney for Baltimore City, and I. Elliott Goldberg, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Per Curiam.

The appellant was found guilty by the court in the Criminal Court of Baltimore of rape, burglary and perverted practice. He was sentenced to 10 years on the rape offense, to 4 years on the burglary offense to run consecutively with the sentence for rape and to 2 years on the perverted practice offense to run concurrently with the sentence for rape. He contends on appeal that the evidence was not sufficient to sustain the convictions.

The offenses of which the appellant was convicted were committed against the person and dwelling of Hattie Robinson who occupied the second floor apartment at 406 E. Lanvale Street, she having rented it about a week before 23 February 1967. The appellant and his mother occupied the third floor apartment at the same address. Hattie Robinson testified that she was employed and earned $125 a week. About 8:30 P.M. on 23 February she went to the third floor apartment at the invitation of the appellant’s mother. The appellant, his mother and a male friend of the appellant were there. The parties drank gin and beer, conversed and danced until about 11:30 P.M. when Hattie Robinson left and went to her apartment. She washed and “greased” her face and went to bed, clothed in a slip and a sweater. She went to sleep and awakened when she felt a hand on her side. There was a light burning in the hall about three feet from the bed and she saw the appellant. Pie had no clothes on. He jerked her head back and told her not to holler. He said, in four letter words of the street, that he was going to commit a perverted act on her and have sexual intercourse with her. He did both and she was afraid to resist. When the acts were completed she asked him to allow her to get a towel and he permitted her to get up. She tried to grab his clothing but was only able to get his shoes, jerked the door open and ran downstairs. She asked the occupant of the first floor apartment to help her but he said, “I’m not going to get involved,” and she ran to her landlady’s house at 411 E. Lanvale Street, told her what had happened and the landlady called the police. She told the police what happened, gave them the appellant’s shoes and they took her back to her apartment. The police observed that the bathroom window of her apartment “was broken out, screen ripped out and shattered glass over the back part of the fire escape and inside the bathroom, and palm prints, some sort of greasy palm print over the window sill and part of the bathtub.” A fire escape ouside the bathroom window led to the third floor apartment of the appellant. The window had been intact when she went to bed. The police arrested the appellant in his apartment. Upon examination of the prosecuting witness by a medical doctor the diagnosis was “evidence of penetration and ejaculation.” The examination showed an old destruction of the hymen and the outlet was “parous (has had three children).”

The appellant testified that Hattie Robinson had suggested to him that he come to her apartment when his mother had gone to sleep. He did so and they had intercourse with her consent. He denied committing a perverted act. After the act was completed she asked for money. He said, “What money? I don’t buy anything from no woman.” She said, “If you don’t pay me, I’m going to holler rape on me.” He told her if she would wait until Friday when he got paid he would give her $10. She ran down the stairs and he realized he had locked the door to his apartment and as he did not want his mother to know what was going on, he broke the bathroom window in Hattie Robinson’s apartment and returned to his apartment by way of the fire escape. Both the appellant’s mother and a police officer testified that Hattie Robinson said the appellant had bitten her on the leg while he was performing the perverted act. Hattie Robinson denied this in her testimony. The medical examination showed no sign of such an injury.

The trial court found from the evidence before it that Hattie Robinson, a new tenant in the apartment house, went to visit the appellant’s mother and after an evening of “conviviality” left at a fairly early hour because she was due for work early the next morning. “She left, went to bed, not expecting the Defendant as he would have me believe. She went to bed to go to sleep. I am firmly convinced that this Defendant, evidenced by State’s Exhibit No. 1 (a photograph of the broken bathroom window), entered by way of the window in the bathroom, went in, found the prosecuting witness asleep, proceeded to rub her thigh, as she testified her side, did in fact commit a perverted act upon her and did in fact rape her. His story to me is utterly incredible, that she left the door open and he could walk in the door for an appointed purpose and would find it necessary to break a window to leave. I believe the prosecuting witness.”

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. Md. Rules, 1086. In performing its duty of judging the credibility of witnesses the lower court may disbelieve the exculpatory statements made by the defendant. Carwell v. State, 2 Md. App. 45. The convictions were supported by substantial evidence and testimony believed by the lower court and we are unable to say that its judgments on the evidence were clearly erroneous. Trout v. State, 3 Md. App. 259; Sutton v. State, 2 Md. App. 639.

The appellant also contends that the lower court abused its discretion in denying his motion for a new trial. On cross examination of Hattie Robinson, counsel for the appellant asked her if she knew “anyone named James Hopkins” and she said she did not. At the hearing on a motion for a new trial counsel informed the court that Hopkins had been summoned but had not appeared. It appears from counsel’s statements to the court that Hopkins told him that he knew Hattie Robinson. Counsel said that docket entries of the Municipal Court of Baltimore showed that ten days after the trial in the instant case, the prosecuting witness and a James Hopkins were arrested for disorderly conduct in front of the house of the prosecuting witness who gave her name as Hattie Hart. There was no indication from the evidence produced at the trial or from statements made at the hearing on the motion for a new trial that Hopkins had any knowledge relevant to the substantive offenses with which the appellant was charged or directly material to his guilt or innocence. It appears clear that counsel desired Hopkin’s testimony only to attempt to show that the prosecuting witness in fact knew Hopkins and thus to impeach her credibility. In his brief, the appellant characterizes the evidence proffered as “newly discovered evidence” and we shall assume it to be such for the purpose of decision. The lower court denied the motion for a new trial.

In Givner v. State, 208 Md. 1, the Court said at page 4:

“The general rule is * * * firmly established that the granting or refusal of a new trial lies within the sound discretion of the trial court and that no appeal will lie from its action thereon.”

The Court recognized an exception to the general rule where the trial court refused even to consider newly discovered evidence relating to a motion for a new trial. Burley v. State, 239 Md. 342, 344; see Barbee v. Warden, 220 Md. 647, 650. But we think it clear from the record before us in the instant case that the trial court, in denying the motion for a new trial did consider the evidence proffered and thus the instant case comes within the purview of the general rule. The factual situation in Givner v. State, supra, was comparable to the instant case. In Givner it was contended that the trial court abused its discretion in refusing to permit the defendant to summon the two principal witnesses for the prosecution to testify at the hearing of his motion for a new trial or to summon the custodians of certain records to produce such records, all for the purpose of attacking the credibility of the two principal witnesses against him. The points upon which their veracity was attacked and the bases for the attack were, however, contained in documents submitted to the Supreme Bench through a petition and affidavit. In the instant case the trial court did not comply with the appellant’s request to issue a bench warrant for James Hopkins to testify at the hearing on the motion. However, the points upon which the veracity of the prosecuting witness was attacked and the bases for the attack were before the trial court by what we assume to have been a proper proffer. In Givner the Court stated at page 6:

“The gravamen of the appellant’s motion for a new trial was that the principal witnesses for the prosecution had given untrue or perjured testimony on a number of matters which were set forth in detail in the petition. All of these instances, as the appellant’s brief shows, were brought to the attention of the Supreme Bench. It seems perfectly evident that the Supreme Bench considered the purport and possible effect of this evidence; and the inference is strong (even in the absence of any opinion of the Supreme Bench) that that tribunal found the new evidence insufficient to warrant the granting of a new trial. In this we find no basis upon which to impute to the Supreme Bench any abuse of its discretion or any refusal to receive and consider evidence supplied by affidavit.”

In the instant case the gravamen of the appellant’s motion for a new trial was that the prosecuting witness had given untrue or perjured testimony on matters brought to the court’s attention. We think it perfectly evident that the lower court considered the purport and possible effect of this evidence and found the new evidence insufficient to warrant the granting of a new trial. In this we find no basis upon which to impute to the lower court any abuse of its discretion or any refusal to receive and consider evidence proffered. See McCoy v. State, 236 Md. 632, cert. den. 380 U. S. 986.

Judgments affirmed.

      . The bathroom window in the Robinson apartment was secured from the inside by a hook and eye at the top. Apparently the hook and eye were still secure when the police arrived. The appellant could not explain the presence of glass inside the bathroom. The window through which he said he entered into his apartment was locked but the appellant said, “All you got to do is shake my window and the lock will jump off and pull through and go through.”

      . In her testimony at the trial Hattie Robinson said she was separated from her husband and that “my divorce is pending.”

      . Newly discovered evidence was not one of the reasons given by the appellant in his written motion for a new trial.

      . A 1965 amendment to the Maryland Rules added a new subsection 2 entitled “Newly Discovered Evidence” to Rule 764 b. A Committee note states that it relates solely to the time within which motions for new trials or other relief on the ground of newly discovered evidence may be filed and is not intended to make any change in the standards to be applied by the trial court in exercising discretion as to whether or not to grant a new trial.

      . The lower court said, at one point in the proceedings at the hearing: “I’ll instruct the State’s Attorney to investigate this for possible charges of perjury against her.” The record does not disclose whether such investigation was made.

      . Chapter 667, Acts of 1965 abolished the practice in Baltimore City of having motions for a new trial heard and decided by the Supreme Bench of Baltimore City. See Md. Rules, 759, as amended 28 March 1966.


text:
    DAVID PHILLIP BROWN AND JERRY WAYNE MONTGOMERY v. STATE OF MARYLAND
    [No. 197,
    September Term, 1967.]

      Decided April 26, 1968.

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

      John S. Arnick, Johnson Bowie, and Donald J. Gilmore for ¡appellants.

      William B. Whiteford, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Samuel A. •Green, Jr., State’s Attorney for Baltimore County, and E. Hardison Stone, Assistant State’s Attorney for Baltimore County, ■on the brief, for appellee.
   Per Curiam.

On June 2, 1967, the Circuit Court for Baltimore County JRaine, J.) denied appellants’ motions to dismiss indictments filed against them on April 18, 1966, on the ground that they had been denied their constitutional right to a speedy trial. From the denials of their motions, these appeals have been taken.

The pertinent facts are these: Appellants were arrested in Anne Arundel County on May 17, 1965 on criminal charges originating in that jurisdiction, and were confined in the Anne Arundel County jail. Appellant Montgomery was subsequently convicted of attempted escape from the Anne Arundel County jail and sent to the Maryland House of Correction. In June of 1966, both appellants were tried and convicted for the Anne Arundel County offenses for which they were arrested on May 17, 1965 and each was sentenced to seven years imprisonment in the Maryland Penitentiary, appellant Brown being sent to that institution on July 22, 1966 and appellant Montgomery being sent there on November 17, 1966.

Appellants were also charged on June 1, 1965 under warrants issued out of Baltimore County for murder, assault and robbery allegedly committed on May 4 and 9, 1965. They were indicted for these offenses in Baltimore County on April 18, 1966.

These additional facts are pertinent to an understanding of appellants’ contentions that they were denied a speedy trial.

As to appellant Brown:

1. That in June of 1965 he learned informally that possible charges existed against him in Baltimore County, but did not know the details thereof.
2. That on October 9, 1965 he wrote the State’s Attorney for Baltimore County requesting trial on these charges. The State’s Attorney had no record of receiving this letter.
3. That on April 18, 1966 a copy of the indictment and bench warrants were sent to the Anne Arundel County jail. There was no evidence that Brown received these documents.
4. That on March 10, 1967 Brown was arraigned on the Baltimore County charges and counsel was appointed. He received his first formal notice of the charges against him at that time.
5. Brown filed a motion to dismiss for denial of a speedy trial on March 20.
6. Brown wrote the State’s Attorney on April 17, 1967 requesting immediate trial.
7. On May 26, 1967 Brown filed another motion to dismiss the indictments on the basis that he was denied a speedy trial.
8. Brown’s motion to dismiss was denied by the court on June 2, 1967.

As to appellant Montgomery:

1. In May of 1966 he was advised at a parole hearing (relating to still another offense) that he would not be paroled because a Baltimore County detainer, the nature of which was not disclosed, had been filed against him.
2. Montgomery wrote the State’s Attorney of Baltimore County on September 4, 1966 requesting a speedy trial. The State’s Attorney had no record of that letter.
3. Montgomery notified of the Baltimore County charges by his classification officer at the Penitentiary on November 17, 1966.
4. On March 10, 1967 Montgomery was arraigned and counsel was appointed for him, at which time he received his first formal notice of the indictments.
5. On June 1, 1967, Montgomery filed a motion to dismiss for failure to grant a speedy trial, which motion was denied by the court on June 2,1967.

On the basis of these facts, the lower court concluded, as to appellant Brown, that while there were “unexplained and unwarranted delays in the prosecution of these cases * * * under the circumstances they do not amount to a denial of constitutional rights.” The court further held that appellant Brown had not waived his right to a speedy trial but that he made no showing that the delay was purposeful or oppressive. As to appellant Montgomery, the lower court found no denial of his right to a speedy trial since, though having knowledge of the existence of the charges since May of 1966, he made no demand to the court for a speedy trial and took no steps to secure a speedy trial after learning in November of 1966, that charges were outstanding against him in Baltimore County. The court concluded that the delay, if any, on the part of the State was neither purposeful or oppressive.

In Lawless v. State, 3 Md. App. 652, we held that it is only after a prosecution has been initiated that the issue of a speedy trial can be raised and that even where the right accrues to an accused, he may waive it by failing to demand it, or, having demanded it, he may waive it by his conduct thereafter. In Stevenson and Borum v. State, 4 Md. App. 1, we held that a delay from indictment to trial of approximately twenty-one months was less than substantial under the facts of that case, and that even where the State’s failure to bring the accused to trial was due to its negligence, nevertheless, some showing by the accused of “a strong possibility of prejudice is required,” even though the right to a speedy trial had not been waived. In that case, we placed reliance upon United States v. Banks, 370 F. 2d 141 (4th Cir.), a case involving a ten-month delay after indictment, where the court concluded that although it could not justify the inactivity of the prosecution, considering all of the circumstances, including the length of the delay and the possible prejudice to the defendant, that there had been no deprivation of the accused’s constitutional right to a speedy trial.

Under the circumstances of the present case, we hold that the delay from indictment to trial was less than substantial within the meaning of Stevenson and Borum, and we find nothing in the record to show that either appellant suffered any “strong possibility” of prejudice to his person or to his defense. Indeed no such prejudice was seriously asserted. Considering all of the circumstances, including the length of the delay and the possible prejudice to the appellants, we think that the lower court properly concluded, after conducting hearings on appellants’ motions to dismiss, that neither had suffered any deprivation of his constitutional right to a speedy trial.

Orders denying the motions to dismiss the indictments affirmed.