Reid v. State

Orth, J., delivered the opinion of the Court. James Frederick Reid, tried by the court in the Criminal Court of Baltimore, was found guilty of having the narcotic drug codeine in his possession (1st count of indictment 4405), and of having the barbiturate secobarbital in his possession (1st count of indictment 4404). Prosecuted as a subsequent offender as warned in an addendum to indictment 4404, he was found to have previously been convicted of posession of the barbiturate secobarbital proscribed by Code, Art. 27, § 313 C (a). The court imposed a sentence of 1 year on the conviction of the current offense under indictment 4404 to run concurrently with a sentence of 2 years it imposed on the addendum.

Although appellant does not question these sentences, we observe that this was error. Code, Art. 27, § 313 C (b) merely authorizes a greater punishment upon conviction of a current offense when the accused is found to be a subsequent offender than when he is not. It does not authorize a sentence upon being found a sub ⁹ sequent offender separate from a sentence imposed upon conviction of the current offense. See Simmons v. State, 8 Md. App. 355 .

However, as two years imposed under the addendum did not exceed the maximum authorized by § 313 C (b), and as the sentence of one year imposed for the current offense ran concurrently with the two year sentence, appellant was not harmed. Appellant contends that the court erred in admitting evidence obtained by a search and seizure unreasonable as incident to an illegal arrest. But the evidence challenged on appeal was not challenged at trial. It was admitted without objection and defense counsel stated specifically upon inquiry by the court that there was no question as to the legality of the arrest.

The point now raised is not properly before us and we do not consider it. See Maryland Rule 729 which is applicable whenever property is claimed to have been obtained by an unlawful search or seizure. By subsection c of the Rule failure to file a petition or motion to suppress or exclude such evidence does not constitute a waiver of a defendant’s right to object at trial to the introduction of such evidence. But as to objection at trial Rule 522 is applicable.

By subsection d 2 of that Rule objection is treated as waived when not made at the time when the evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent. Recognizing that since the case here was tried by the lower court without a jury, we may set aside its judgment on the evidence only when clearly erroneous, Rule 1086, appellant claims that the court was clearly wrong in its verdicts of guilty. He urges only that considering that it was “dark out”, that the observations of the officers were made at a distance of 50 feet, 1 that the lighting was at best poor, and that other persons may have blocked the view of the observing officers, the lower court should not have accepted the testimony of the State’s witnesses “as worthy to base a conviction upon.” But Rule 1086 re ¹⁰ quires us to give due regard to the opportunity of the lower court to judge the credibility of the witnesses and the matters raised by appellant go to credibility of the witnesses. That and the weight