Diggins v. State

Markell, J., delivered the opinion of the Court. This is an appeal from a conviction of assault upon Harry S. Miller and a fine of $5.00. The case was tried without a jury. A motion for a directed verdict of not guilty was denied at the close of the State’s evidence and was not re-offered at the close of all the evidence. .The State contends that under Rule 7 (c) of the Criminal Rules of Procedure the verdict cannot now be reviewed upon the evidence.

The contention is that “when a criminal charge has been so tried by the court” means “tried by the court and a motion for a directed verdict has been denied at the close of all the evidence”, and then only may this court review upon the evidence. In ⁵⁰⁶ other words, to obtain a review upon, the evidence the defendant must move for a directed verdict on the ground of legal insufficiency of the evidence, though such. a motion may be patently futile. This contention is unsound. “So tried by the court” in Rule 7 (c) means only “tried by the court without a jury” in Rule 7 (a). We have noted “both the substantial identity of the scope of appellate review and also minor differences in procedural details with respect to credibility of witnesses, in law, equity and criminal cases, in Maryland and in the federal courts.” Edwards v. State, on motion for reargument, 198 Md. 152, 153 , 83 A. 2d 578 , 579.

As in non-jury civil cases, an appeal from the judgment is enough to bring up the whole case for review, without a motion for a directed verdict or for any other ruling. The full review upon the evidence under Rule 7(c) necessarily includes the limited review under 7(b), though this circumstance may perhaps, in practice, render Rule 7 (b) superfluous. Miller conducts an automobile business on East Lexington Street, a few blocks beyond the Central Police Station. Defendant is a policeman and a member of the Vice Squad.

On the morning of October 19, 1950, Officer Stefan of the Vice Squad parked his automobile near Miller’s office, at a place where Miller claimed a special parking license. That afternoon defendant, Officer Stefan and another Vice Squad officer, none in uniform, drove a police car in front of Miller’s office. They then discovered a parking ticket on Stefan’s car. This, all witnesses agree, started controversy between the officers and Miller.

As to details of the controversy the testimony is conflicting. Miller and two other witnesses say the officers started an “argument” about the parking ticket, defendant threatened to arrest Miller and, without cause,- did arrest him and handled him roughly. The officers say Miller started the argument, threatened to have the car impounded if parked there again, resisted arrest, and struck defendant. Defendant and Stefan say Miller used an indecent word, and defendant says, “He pushed my arm..

I placed him under arrest.” The ⁵⁰⁷ word used was not an epithet applied to anyone and not a word unfamiliar to a policeman or likely to incite him to a breach of the peace. A uniformed officer, who arrived on the scene after the arrest, evidently thought Miller was not getting fair treatment and tried, without success, to give him an opportunity to telephone for someone to care for and close his office while he was taken to the police station. Incidentally, relations between Miller and policemen on the beat appear to be friendly, but his relations with the Vice Squad, and also relations between uniformed policemen and the Vice Squad appear strained. Miller was charged with disorderly