Iozzi v. State, 81

• Decision Date: 21 December 1960
• Docket Number: No. 81,81
• Citation: 224 Md. 42,166 A.2d 257
• Parties: John G. IOZZI v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 42

224 Md. 42

166 A.2d 257

John G. IOZZI v. STATE of Maryland.

No. 81.

Court of Appeals of Maryland.

Dec. 21, 1960.

Lawrence E. Ensor, Towson, for appellant.

Robert C. Murphy, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Frank H. Newell, III, State's Atty., and Samuel A. Green, Jr., Asst. State's Atty., Baltimore County, Towson, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

The appellant was tried and convicted of carrying a concealed dangerous and deadly weapon and sentenced to two years imprisonment, the maximum sentence under Code (1957), Art. 27, sec. 36. He was represented by counsel of his own selection, pleaded not guilty, and elected a court trial. In this appeal, where he is represented by court-appointed counsel, he challenges the sufficiency of the evidence to convict and particularly the evidence to establish venue. He further contends that the court erred in hearing his motion for new trial in the absence of defense counsel.

We find no insufficiency in the evidence. Two Baltimore County policemen, on duty in a car, were ordered to proceed to the Teen Age Center at the Arbutus Elementary School to investigate a report of a disturbance there and that '[a] man was suspected of having a gun.' They testified that they saw the accused drop a pistol on the ground at the parking lot of the Arbutus Elementary School just prior to his arrest. The witness, Covill, adult counselor at the Center, testified he saw the accused take the pistol from his pocket before he dropped it. The pistol was picked up by one of the officers and found to be loaded. The appellant testified that the pistol belonged to one of the boys, seventeen years old, whom he had accompanied to the Center as a peacemaker in a previous fight with other boys. The trial court believed the testimony of the witnesses for the State and did not believe the testimony of the accused denying ownership or possession of the pistol or the testimony of other defense witnesses to the same effect. We cannot find that the trial court was clearly wrong.

The claim that venue was not established rests upon a certain ambiguity in Covill's answer to a question whether the Arbutus Elementary School was in Baltimore County. He replied: 'Yes, sir. I do live in Baltimore County.' Apart from the inference that Baltimore County police officers would not be sent outside the County to investigate an alleged breach of the peace, we think the trial court could infer that the witness was stating a geographical fact as to the locus of the offense stated in the information and that the added sentence was merely explanatory of his means of knowledge. Moreover, it is generally held that geographical facts of a local nature may be judicially noticed by a trial court to establish venue. See 1 Wharton, Criminal Evidence §§ 59, 92 (12th ed. 1955), and 9 Wigmore, Evidence § 2575 (3d ed. 1940), and cases cited. This is particularly true as to the location of towns within a particular county where the court sits. McClain v. Commonwealth, 189 Va. 847, 55 S.E.2d 49, 52; State v. Ragland, 173 Kan. 265, 246 P.2d 276, 282; Turner v. Alton Banking & Trust Co., 8 Cir., 181 F.2d 899, 903, and 20 Am.Jur., Evidence, § 53. Cf. Dean v. State, 205 Md. 274, 280, 107 A.2d 88, 48 A.L.R.2d 1096. We think the trial court could properly take judicial notice that the town of Arbutus is within the territorial limits of Baltimore County.

After the trial court announced the verdict of guilty on January 29, 1960, counsel for the accused, Mr. Hurwitz, asked the court to 'withhold sentence upon the request of my client for the purpose of filing a motion for a new trial'. It seems to be a fair inference that the appellant's trial counsel was merely keeping the door open for his client to file the motion himself but did not propose to file it for him. The appellant was a mature man not unfamiliar with court procedure. He had a long record of criminal convictions over a period of some fifteen years and had served time in the Federal prisons at Atlanta and Alcatraz. There is no suggestion that he was mentally incompetent to make the arguments at the hearing of the motion in proper person. The court complied with this request of counsel, remanding the appellant to the Baltimore County Jail pending a hearing of the motion. On February 2, the appellant filed a motion for new trial in proper person. The record shows that on February 26, the court passed an order committing the appellant to Spring Grove State Hospital for inquiry into his mental capacity to conduct properly...