Frasher v. State

Orth, J., delivered the opinion of the Court. James Martin Frasher (appellant) was found guilty by a jury in the Circuit Court for Prince George’s County of control of heroin for which a sentence of 3 years was imposed to run consecutively with a sentence he was then serving and of possession of narcotic paraphernalia for which a concurrent sentence of 3 years was imposed. FACTS Appellant was charged with shoplifting in the Prince George’s County Peoples’ Court and released pending trial in October 1968 upon the posting of a $500 bond by Charles D. Ayers, a professional bondsman. Appellant failed to appear as required and the bond was forfeited.

Ayers “obtained a bailpiece” and attempted to locate appellant. He received information that appellant had been seen in the Mount Pleasant section of the District of Columbia and drove to that area on 28 January 1969 to apprehend him. Ayers was armed with a revolver and a can of mace and had a pair of handcuffs. He saw appellant walking in the 700 block of Park Road, stopped the car and approached appellant. “I said, ‘Mr. Frasher?’ ⁴⁴² He said, ‘No, no, you have got the wrong man.’ I said, ‘You are not James Martin Frasher?’ He said, ‘No, my name is Charles Curtis.’ I said, ‘Well, I could be making a mistake, but,’ I said, ‘if I am, I apologize to you, but I think you are James Frasher.’ ” Ayers asked appellant if he would get in the front seat of the car so a positive identification could be made and appellant did so.

Ayers received information which convinced him that the man was in fact Frasher and told him that he was taking him back to stand trial. Appellant said, “Well, Mr. Ayers, I was going to turn myself in.” Ayers placed a handcuff on appellant’s left wrist and appellant tried to leave the car. “I was trying to hold him in there, in my car, and I had one hand on the cuff that I had — the left hand was cuffed; I had ahold of the handcuff trying to hold him in; and I put my other hand around his waist. He reached down and twisted my finger at the time,” breaking it. During the scuffle, Ayers unsuccessfully tried to use the mace.

He succeeded in keeping appellant in the car — “I was using this one cuff that I had on him and I was giving him heck with that one arm.” Appellant gave him no more trouble. On the way back to Maryland appellant asked to be taken to St. Elizabeth Hospital. “I asked him what was wrong with Prince George’s County Hospital. I wanted to get him out of the District.” 1 Ayers said: “After I got him into Maryland, I informed him that we were already in Maryland; that I was taking him to jail and if he didn’t allow me to put the other handcuff on him that I would have to use my sidearm to do so. We came on out to 34th and Bunker Hill Road there in Mount Ranier, and I stopped at a stop light.

He reached over and pushed the button to lower the window and went in his pocket. I asked him, ⁴⁴³ ‘What are you doing?’ He pulled this package out of his pocket. T have got a package I have got to get rid of before I go into jail.’ I took the package from him and told him he wasn’t going to throw anything out of my car. I laid it up on the dashboard.

We got out to the Hyattsville station, and I had some cigarettes up on the dash along with this package he gave me, or I took from him, and he asked if he could have a pack of cigarettes since he was going to jail and he was broke. So I took the package of cigarettes and the package that I took from him and put them back in his pocket. I got on down to the police station, took him down in front of the Justice of the Peace, told him to sit down and asked the Justice of the Peace to watch him. In the package that I took from him I noticed a spoon — end of a spoon sticking out of the package.

I went back into the squad room, called the narcotics squad in Seat Pleasant * * The police arrived and found the package on appellant’s person contained “a complete hypodermic needle and syringe, disposal insulin type; a spoon with a small piece of cotton in the bowl of the spoon; and a lady’s stocking, a silk stocking, wrapped around the outside of the package.” There were also 48 clear gelatin capsules 2 with “a white substance inside, residue inside,” in a small plastic bag. The officer gave appellant the Miranda warnings, appellant waived his rights and the officer asked him what narcotic he was using. Appellant stated he was using heroin, about “50 capsules of heroin per day to take care of his habit.” Appellant’s arm “revealed extensive tracks along the veins.” 3 The officer made a Mar ⁴⁴⁴ quis Reagent test 4 on the residue. The test was positive as to the presence of opium.

The evidence was submitted to an analytical chemist with the Internal Revenue Service, qualified as an expert in the field of narcotics. He testified that the capsules and spoon, upon analysis, gave positive tests for opium derivative and said that heroin was an opium derivative The narcotic drug found was “not enough to weigh quantity.” Appellant testified that he was approached by Ayers on 28 January about 10:30 A.M. At the time he had not had the regular dosage of narcotics “that I was addicted to at the time * * *, approximately eight capsules at one time,” which he took every six hours. His last injection had been about 9:30 P.M. the day before. His testimony differed from that' of Ayers in some material aspects.

Pie said it was upon Ayers refusing to take him to St. Elizabeth Hospital that he attempted to get out of the car; that it was in the District of Columbia that he attempted to throw out of the car window the package containing the narcotic paraphernalia, which he admitted was in his possession at the time he was apprehended; and that he was just standing in the police station when Ayers put the package in his jacket pocket. He amplified Ayers’ recounting of what occurred immediately after they crossed the line into Maryland: “[He] just stopped the car and he said, ‘Now we are in Maryland,’ and he handcuffed my right hand. * * * He had a small holster that was attached to the front side of the car inside in which he had his handgun, and he took his handgun out of the holster and put it in his lap and said, ‘Now, don’t try to make a move or I’ll —I’ll blow your brains out. I will, I will.’ I wasn’t about to make an attempt to get away, that is for sure.” ⁴⁴⁵ THE APPREHENSION The apprehension of appellant by the bondsman was legal. The purpose of an appearance bond is to secure a trial, its object being to combine the administration of justice with the convenience of a person accused, but not proved, to be guilty.

If the accused does not appear the bail may be forfeited, not as punishment to the surety or to enrich the Treasury of the State, but an incentive to the surety on the bail bond to pursue the accused and return him to the jurisdiction of the court. See Allegheny Mutual v. State, 234 Md. 278 ; Harding v. State, 250 Md. 188 . So under certain conditions remission of the forfeiture is permitted. Md. Code, Art. 26, § 33(b).

In accord with the purpose of a bail bond and to make control of the principal by the surety effective, the surety has been regarded as subrogated to the rights and means possessed by the State for that purpose and to be entitled to seize his principal for the .purpose of surrendering him in discharge of the surety’s liability, and, to the extent necessary to accomplish this, the surety may restrain him of his liberty. Although the surety has the right to requisition official help to take the principal into custody, for the purpose of surrendering him in exoneration of his liability, the surety has also been regarded as entitled to take the principal into custody himself, and at common law ho process was necessary to authorize the arrest of the principal by his bail. On the ground that the right to take the principal into custody and surrender him results from the nature of the undertaking by the bail, the rule permitting arrest without process has been applied to the right to arrest the principal in another state. But even where there are statutory provisions that the bail may arrest the principal on a bailpiece or certified copy of the recognizance, these provisions have sometimes been held to be cumulative and not to affect the common law right to arrest without process.

See 4 Wharton’s Criminal Law and Procedure (Anderson) §§ 1833-1835, pp. 674-677. ⁴⁴⁶ In any event, it is not disputed that the arrest here was under the authority of a bailpiece. 5 In his brief appellant apparently feels that his apprehension was under authority of the provisions of United States Code, Title 18, § 3142, but argues that the statute is unconstitutional. That question is not before us, howéver, as we feel that the federal statute is not here applicable, his apprehension by the bondsman being under the common law right of the bail to arrest the principal upon forfeiture of the bond. THE SUFFICIENCY OF THE EVIDENCE Appellant concedes that “there was clearly sufficient evidence to convict on the basis of possession of narcotic implements” but claims that there was not sufficient evidence to sustain the conviction of control of narcotics. He supports the claim on the fact that only “trape amounts” of narcotics were shown.

It is firmly established that if a substance is within the statutory definition of a narcotic drug, the quantity is immaterial with regard to its illegal possession or control. There need be only such quantity, no matter how minute, sufficient to make possible a proper determination that it is a narcotic drug in order to sustain a conviction upon proof of its possession or control. Bracey v. State, 4 Md. App. 562, 563-564 . There was such quantity in the instant case.

However, the real question presented by the factual posture of this case is whether appellant voluntarily committed the crimes of which he was convicted. The question is one of the sufficiency of the evidence, for if the evidence was not sufficient to establish that the crimes were committed by the voluntary acts of appellant there would be lacking a necessary element of the corpus delicti. The sufficiency of the evidence is before us on the denial by the lower court of a motion for judgment of ⁴⁴⁷ acquittal made at the close of all the evidence. Our function is to determine whether the court erred in submitting the case to the jury.

Williams v. State, 5 Md. App. 450 . We first note that we do not believe that a question of jurisdiction is here involved. Of course, an offense against the laws of the State of Maryland is punishable only when committed within its territory. A person cannot be convicted here for crimes committed in another state.

Goodman v. State, 237 Md. 64 ; Breeding v. State, 220 Md. 193 ; Bowen v. State, 206 Md. 368 . But “[i]f a party has committed a crime against the laws of two States we can perceive no good reason why he should not be punished in both States * * Worthington v. State, 58 Md. 403, 410 . So when a person steals goods in another state and brings them into Maryland, he cannot be punished here for the crime committed in the former state, for one state cannot enforce the laws of another, but the act of bringing the goods into Maryland is a new larceny for which he can be indicted in the courts of this State and punished. And here, while Maryland could not indict and punish appellant for possessing narcotic implements and having narcotics in his control in the District of Columbia, Maryland would not be precluded from indicting him and punishing him for possession and control of the same contraband, even though the District of Columbia also punished him for the crimes against it, since it is clear that he was in possession and control of the contraband in Maryland also.

In short, Maryland had jurisdiction over the appellant as to the crimes for which he was indicted. It is essential to a crime that the defendant committed a voluntary act. Voluntariness in this context has a limited meaning. It is not as broad, for example, as the voluntariness which must be shown to render a confession admissible.

See Spell v. State, 7 Md. App. 121, 129 . The voluntary requirement of the criminal act relates directly to compulsion; it is a defense as to all crimes except taking the life of an innocent person that the defendant ⁴⁴⁸ acted under a compelling force of coercion or duress. 1 Wharton’s Criminal Law (Anderson) § 123, p. 261. The compulsion may be by necessity, that is duress arising from circumstances, or by the. application of duress on the defendant by another person. Necessity “If a choice exists but only between two evils, one of which is the commission of a'wrongful act, and the emergency was not created by the wrongful act of another person it is spoken of as an act done in a case of necessity.” Perkins, Criminal Law (1957) p. 847. 6 This doctrine applies not only to the obvious situation when the act done was necessary, or reasonably seemed to be necessary, to save life or limb or health, as for example, self-defense, defense of other persons, or defense of habitation, but also where the act done was not of particular gravity and the danger or apparent danger to be avoided was less serious in its nature.

So courts have recognized necessity as an excuse where, for example, a person is unavoidably caught in a traffic jam, holding that he is not guilty of violating the law which prohibits stopping at that place; and) a vessel is not liable for a violation of the embargo laws where, during a legitimate voyage, she is obliged by stress of weather to take refuge in a proscribed port. See Perkins, supra, at p. 848; Clark & Marshall, Law of Crimes, (6th Ed.), § 5.15, p. 324. We think it patent that the doctrine of necessity, as it has been defined and interpreted, has no application in the instant case. And we note that it has been held that in a prosecution for an offense not requiring intent, as are the offenses here, the defense of necessity is not available, at ⁴⁴⁹ least where the defendant could have