Carwell v. State

Per Curiam. On October 4, 1966, the appellant was convicted of assault upon a police officer acting in his official capacity in violation of Maryland Code, Art. 27, § 11B and of the common-law offense of resisting arrest, in the Criminal Court of Baltimore, before Judge J. Gilbert Prendergast, presiding without a jury. He was sentenced to imprisonment for a term of two years on the assault charge and one year on the charge of resisting arrest, the sentences to run concurrently. On this appeal, the appellant contends that: 1) The trial court erred in denying a motion for judgment of acquittal. 2) The verdict was against the weight of the evidence. 3) A statement of the appellant was improperly admitted in evidence.

The appellant was also indicted, with another person, for storehouse breaking and related offenses and a motion for judgment of acquittal at the close of the evidence offered by the State was granted as to both defendants on these charges. The address of the storehouse broken into was incorrectly stated in the indictment and the lower court denied a request by the State to amend the indictment after the commencement of the trial. There was evidence produced by the State that about 9:30 P.M. on July 10, 1966 two police officers, Robert McGlynn and George McHargue, in unmarked radio car #143 were in the vicinity of the 1300 block North Charles Street when they heard a call come over their radio for police car #501 to proceed to the unit block of West North Avenue, “two colored males breaking a window at Clayton Shop.” About a minute later they heard a call for police car #104 to respond also “because they were reportedly looting the window.” Thereupon McGlynn and ⁴⁸ McHargue started toward the area and as they approached the 1800 block North Charles Street received the information that one of the males was wearing a light shirt, dark pants, with possible cuts on the hand and that he had run south on Charles Street. As they approached Trenton Alley, about 50 feet south of North Avenue on Charles Street they “observed this colored male come out of the alley, start to walk north on Charles Street, on the west side of Charles.

He was wearing a light blue shirt, dark pants and he was wrapping what looked like to us a rag around his hand, had a blood soaked rag.” They stopped their car, got out and walked over to him, confronting him in front of the Little Tavern at North Avenue and Charles Street. He was the appellant. Each officer identified himself as a police officer, showed the appellant the police badge each carried and placed him under arrest. He blurted out, “I didn’t break the window, the other boy did it.” This was not said in response to any question asked or statement made by either officer soliciting any information and was stated by the appellant immediately upon being informed he was under arrest.

The officers started to walk him to their car, but the appellant “lunged” attempting to break away from them and “became very violent.” They struggled with him to the west side of Charles Street and in attempting to get away the appellant bit McGlynn on the hand necessitating treatment at Mercy Hospital. The appellant struggled for four or five minutes until several uniformed policemen arrived and helped place him under control. McHargue was also injured. Breaking a storehouse with intent to steal goods of the value of $100 or more is a felony.

Code, Art. 27, § 32. Breaking a shop and stealing goods to the value of $5 or upwards is a felony. Code, Art. 27, § 33. There can be a legal arrest without a warrant for a felony when the arresting officer has reasonable grounds to believe that a felony has been committed and that the person arrested committed it.

Information placed on a lookout prepared by a police organization, of which the arresting officer is a part, may constitute probable cause for the arrest. Johnson, etc. v. State, 238 Md. 528 and cases cited. The testimony in this case, herein detailed, clearly supports the conclusion of the court below that the arrest was legal. Ordinarily ⁴⁹ the validity of the convictions would not be affected by whether the arrest of the appellant was or was not legal, since no evidence was seized or used against him as a result.

Here, however, the appellant