232 A.2d 541 (Md.App. 1967), 252, Benton v. State

Docket Nº:252.
Citation:232 A.2d 541, 1 Md.App. 647
Opinion Judge:[10] Anderson
Party Name:John Dalmer BENTON v. STATE of Maryland.
Attorney:[7] H. Thomas Sisk, with whom was M. Michael Cramer on the brief, for appellant.
Case Date:August 17, 1967
Court:Court of Special Appeals of Maryland
 
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Page 541

232 A.2d 541 (Md.App. 1967)

1 Md.App. 647

John Dalmer BENTON

v.

STATE of Maryland.

No. 252.

Court of Special Appeals of Maryland.

August 17, 1967

Rehearing Denied Dec. 7, 1967. [1 Md.App. 648]

H. Thomas Sisk, Washington, D.C., M. Michael Cramer, Kensington, on the brief, for appellant.

Jon F. Oster, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief, for appellee.

Before ANDERSON, MORTON, THOMPSON and ORTH, JJ., and WILLIAM J. O'DONNELL, Special Judge.

Page 542

ANDERSON, Judge. [1 Md.App. 649]

Appellant, John Dalmer, Benton, was indicted under a three count indictment charging him in the first count with burglary, in the second count with housebreaking and in the third count with larceny. He was tried on April 22, 1965, in the Circuit Court for Prince George's County before a jury. The State abandoned the second count and the jury returned a verdict of guilty as to the first count (burglary) and not guilty as to the third count (larceny). Appellant was sentenced on the burglary conviction to ten years in the House of Correction. Thereafter he noted an appeal to the Court of Appeals of Maryland.

Prior to a hearing on the merits of his appeal and on the basis of the decisions of the Court of Appeals in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965); State v. Madison, 240 Md. 265, 213 A.2d 880 (1965); Smith v. State, 240 Md. 464, 214 A.2d 563 and Hays and Wainwright v. State, 240 Md. 482, 214 A.2d 573 (1965), the case was remanded by order of the Court of Appeals to the lower court for the purpose of ascertaining whether the appellant desired to avail himself of the relief afforded by the aforesaid rulings handed down by that Court in those cases. Appellant elected to avail himself of such relief and have the indictment upon which he was originally tried declared invalid.

On June 3, 1965, appellant was reindicted under a similar three count indictment charging him with burglary, housebreaking, and larceny. Prior to trial appellant moved to dismiss the larceny count on the grounds of double jeopardy. The court denied the motion and on August 11, 1965 appellant was retried in the same court before a jury, Judge Roscoe H. Parker, presiding. The State again abandoned the second count and the jury returned a verdict of guilty on the first count (burglary) and guilty on the third count (larceny). He was sentenced to fifteen years in the Maryland Penitentiary on the first count and five years in the Maryland Penitentiary on the third count, sentences to run concurrently. From his convictions and sentences he now appeals to this Court.

Appellant raises four contentions on this appeal: (1)...

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