Opinion
No. 145, Initial Term, 1967.
Decided July 19, 1967.
CONSTITUTIONAL LAW — Validity Of Reindictment Under Schowgurow Rule Not Affected By Absence Of Legislative Enactment. Appellant's reindictment under the rule laid down in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), was valid notwithstanding his contention that the grand jury which reindicted him continued to be illegally constituted in the absence of an enactment of the legislature. p. 498
CONSTITUTIONAL LAW — Conviction Not Unconstitutional Because Judge Required To Affirm Belief In God. Appellant's conviction of robbery with a deadly weapon and common-law assault was not unconstitutional because the judge before whom he was tried without a jury was required, as a qualification of office, to affirm a belief in the existence of God. p. 498
CONSTITUTIONAL LAW — Accused's Right Of Confrontation With Witnesses Against Him — Police Lineup Not Unconstitutional Per Se — Contention Held Frivolous. There is nothing per se unconstitutional about a police lineup. p. 498
Appellant's contention that all of the accusing witnesses against him should have been disqualified under Maryland Declaration of Rights, Art. 21, because he was placed in a lineup where he was behind a screen and could not see his accusers, was held frivolous, where there was no showing that such lineup was either unfair or unreliable. p. 498
ARREST — Illegal Arrest Does Not Invalidate Subsequent Conviction — Illegality Is Immaterial Where No "Fruits" Offered As Evidence. An illegal arrest does not invalidate a subsequent conviction. p. 498
The illegality of arrest, by itself, is immaterial where it produced no "fruits" which were offered as evidence in the case. p. 499
SENTENCE AND PUNISHMENT — Forty-Year Sentence For Robbery With Deadly Weapon And Common-Law Assault Held Not Cruel And Unusual Punishment. A sentence of forty years imposed upon appellant following his conviction of robbery with a deadly weapon and common-law assault was held not cruel and unusual punishment, where such sentence was within lawful limits and it was not contended that the trial judge was actuated by any improper motive in imposing it. p. 499
SENTENCE AND PUNISHMENT — Sentence Within Lawful Limits Cannot Ordinarily Be Reviewed Upon Appeal. Where a sentence is imposed within the limits prescribed by law, and it is not contended that the trial judge was actuated by any improper motive in imposing it, such sentence cannot be reviewed on appeal. p. 499
MERGER OF OFFENSES — Assault Counts Held Merged With Counts Charging Robbery With Deadly Weapon. Appellant's conviction on counts charging him with assault was held error because such counts merged with other counts charging him with robbery with a deadly weapon, where there was no evidence of any physical beating of the victims during perpetration of the robberies. p. 499
SENTENCE AND PUNISHMENT — Merged Offenses — Sentence Not Disturbed By Reversal Of Conviction For Merged Offense. Where a twenty-year sentence was imposed upon one indictment charging robbery with a deadly weapon and common-law assault, and ten-year sentences upon two other indictments, the Court's reversal as to the assault counts because of a merger of the lesser included offenses does not mean that the sentences have to be disturbed, since each of them did not exceed the maximum of twenty years authorized by the statute. Code (1957), Art. 27, § 488. p. 499
Decided July 19, 1967.
Appeal from the Criminal Court of Baltimore (PERROTT, J.).
Walter Ellsworth Powell was convicted in a non-jury trial on three separate indictments charging robbery with a deadly weapon and common-law assault, and, from the judgments entered thereon, he appeals.
Judgment affirmed as to first count (robbery with deadly weapon) of indictments and reversed as to fifth count (assault); case remanded for entry of judgment of not guilty as to fifth count.
Note: Certiorari denied, Court of Appeals of Maryland, November 16, 1967.
The cause was submitted to ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and TRAVERS, J., Associate Judge of the First Judicial Circuit, specially assigned.
G. Denmead LeViness and E. Thomas Maxwell, Jr., for appellant.
Francis B. Burch, Attorney General, Thomas A. Garland, Assistant Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and John D. Hackett, Assistant State's Attorney for Baltimore City, for appellee.
Appellant was convicted by the court sitting without a jury of robbery with a deadly weapon and common-law assault on three separate indictments and sentenced to a total of forty years imprisonment.
Appellant contends on this appeal that his reindictment as commanded by Schowgurow v. State, 240 Md. 121 was invalid since the Grand Jury continued to be illegally constituted as no new law had been enacted by the State Legislature "so that it is illegal and unconstitutional to try him under a non-existing law." Virtually the same contention was raised and rejected in Hutchinson v. State, 1 Md. App. 362. We therefore find the appellant to have been validly reindicted.
Appellant also contends, in effect, that his conviction was unconstitutional because the judge before whom he was tried without a jury was required, as a qualification of office, to affirm a belief in the existence of God. This contention is also lacking in merit, having been decided against appellant's position in Ralph v. Warden, 245 Md. 74. See also Ralph v. Brough, 248 F. Supp. 334.
Appellant next contends that "all accusing witnesses against the petitioner" should be "disqualified" under Article 21 of the Maryland Declaration of Rights because he was placed in a lineup where he was behind a screen and could not see his accusers. We find this contention frivolous. There is no showing that the line-up conducted in this case was either unfair or unreliable and there is nothing per se unconstitutional about a police line-up. See United States v. Wade, 388 U.S. 218, 87 Sup. Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 Sup. Ct. 1951, 18 L.Ed. 1178; and Stovall v. Denno, 388 U.S. 293, 87 Sup. Ct. 1967, 18 L.Ed.2d 1199; all decided on June 12, 1967.
Appellant's further contention that his arrest was unlawful is likewise without merit. It is well settled that an illegal arrest does not invalidate a subsequent conviction, Nadolski v. State, 1 Md. App. 304, and the illegality of arrest, by itself, is immaterial where it produced no "fruits" which were offered as evidence in the case. McChan v. State, 238 Md. 149; Matthews v. State, 237 Md. 384; Hutchinson v. State, supra; Ross v. Warden, 1 Md. App. 46.
Nor do we find that the imposition of the sentence in this case constitutes cruel and unusual punishment. The sentence was within lawful limits and it is not contended that the trial judge was actuated by any improper motive in imposing it. Under these circumstances, the sentence cannot be reviewed on appeal. Gleaton v. State, 235 Md. 271.
In Burks v. State, 1 Md. App. 81, we held that an assault count in an indictment ordinarily merges into the armed robbery count, since the assault necessarily involves the armed robbery, the facts necessary to prove the assault being essential ingredients in establishing the greater offense of armed robbery. In the instant case, where there was no evidence of any physical beating of the victims during perpetration of any of the robberies, we find the conviction on the assault counts to be in error since they merged with the counts charging robbery with a dangerous and deadly weapon. As the court imposed a twenty year sentence on the first indictment, and ten year sentences to run consecutively on the other two indictments, and since this is less than the maximum of twenty years authorized by the statute (Code (1957), Article 27, § 488) as to each count of robbery with a deadly weapon, our reversal on the assault counts does not mean that the sentence has to be disturbed. Gatewood v. State, 244 Md. 609; Tucker v. State, 237 Md. 422.
Judgment affirmed as to the first count (robbery with a dangerous and deadly weapon) of indictment Nos. 5016, 5017 and 5018, and reversed as to the fifth count (assault) of each of said indictments. Case remanded for entry of judgment of not guilty as to fifth count (assault) of indictment Nos. 5016, 5017 and 5018.