Mazer v. State, 43

• Decision Date: 10 December 1956
• Docket Number: No. 43,43
• Citation: 127 A.2d 630,212 Md. 60
• Parties: Robert M. MAZER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 60

212 Md. 60

127 A.2d 630

Robert M. MAZER v. STATE of Maryland.

No. 43.

Court of Appeals of Maryland.

Dec. 10, 1956.

Alexander Stark, Baltimore, for appellant.

Stedman Prescott, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty., J. Harold Grady and Saul H. Harris, Asst. State's Attys. Baltimore, on the brief), for appellee.

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

HENDERSON, Judge.

Robert M. Mazer was found guilty, in a trial by the court without a jury, on an indictment in four counts the first of which charged unlawful possession on January 11, 1956, of cannabis, a narcotic drug popularly known as marihuana. After a motion for a new trial had been overruled by the Supreme Bench, he was sentenced to five years in the House of Correction. His appeal, among other points, challenges the sufficiency of the evidence to convict and the admissibility of certain evidence.

Mazer was arrested on the night of January 11, 1956, when he kept an appointment on Franklin Street with a man named Wright and another man. Evidently the police had previously arranged with Wright to be present at the meeting in another car. When Mazer drove up in his two-door, two-tone, blue Cadillac, the police searched him but found nothing. Lieutenant Carroll testified that he told Mazer 'the men had told me they had given him $25 for the purchase of some marihuana and he was supposed to meet them there', and that Mazer said, 'I took $25 from them and told them I would get the marihuana * * * but I didn't mean to get them any marihuana, I was just going to beat them out of their money and make a payment on my car.' Lieutenant Carroll testified: 'I said if that was the case why did you stop back to see them after you had gotten the money, and he couldn't answer that.' A search of Mazer's car disclosed a patch of a green substance on the floor mat in the rear of the car. A sample scraped from this patch was tested by the witness Mills, a Government chemist, who testified that it was cannabis, and the sample was offered in evidence over objection.

The State also offered evidence to show that on the night of January 3, 1956, three boys, Sullenger, Gray and Fetty, accompanied by a man named Myers who had offered to obtain marihuana for them and to whom they had given $25, drove to a Howard Johnson restaurant on Pulaski Highway. Gray and Fetty remained in the car, but Myers and Sullenger entered a green Cadillac that drove up and parked. Gray testified the Cadillac was two-tone green in color. Sullenger testified that after he and Myers had entered the Cadillac, driven by a man he identified as Mazer, Myers gave Mazer $25 and Mazer gave Myers an envelope or package supposed to contain marihuana. Myers later opened the package and split up the contents. He gave part of the loose stuff in the package to Sullenger, who testified Myers got it out of the same package that was handed him by Mazer. Later in the evening Sullenger, Gray and Fetty were arrested in Brooklyn, but Myers was not apprehended. They were charged with possession of marihuana and pleaded guilty, but had not been sentenced at the time of Mazer's trial. It was stipulated that Mr. Mills, if present, would testify that he analyzed material turned over to him by Sergeant Vaught, who took it from Sullenger on January 3, 1956, and that the material was marihuana.

The appellant filed a demurrer to the indictment on the grounds that it was vague and indefinite and that the joinder of the second and third counts, setting up a prior conviction on June 28, 1951, of possession of cannabis, was prejudicial. He also filed a demand for particulars. The State excepted to some of the particulars demanded and supplied others, but there was no hearing on the demurrer or exceptions prior to the trial. The appellant was arraigned and pleaded not guilty. While the State's first witness was on the stand, counsel for the appellant sought to be heard on the demurrer and claimed for the first time that the particulars supplied were insufficient. The court ruled that the motion came too late, but said: 'You can accomplish the same result by motions later on in the case, but I am not going to now, at this stage of the proceeding consider the motion to quash.' The record does not show that counsel for the appellant asked for a ruling on the demurrer at any later time, although he made a full argument on a motion for directed verdict at the close of the State's case, which was renewed at the conclusion of the whole case.

Under the circumstances we think the appellant waived or abandoned his request that the court rule on the 'demurrer'. Under Rule 3(a) of the Criminal Rules of Practice and Procedure, demurrers and motions to quash are abolished in favor of a motion to dismiss. Under 3(a) of the same Rules, defenses and objections based on defects in an indictment must usually be made before pleading and before trial, although the trial court may for cause shown grant relief from the waiver, or defer ruling until the conclusion of the case. We find no abuse of discretion in the court's ruling, or any excuse for failure to renew the motion to dismiss, if it may be considered in that light. Cf. Schanker v. State, 208 Md. 15, 18, 116 A.2d 363. We may add that no reason was suggested in the argument in this Court as to why the indictment, closely following the language of the statute, Code 1951, art. 27, sec. 364, was defective. The first count alone would support the general verdict of guilty, and the sentence did not exceed the maximum for a first offense. Code 1951, art. 27, sec. 369.

The appellant contends that the sample taken from the rear of the appellant's car should not have been admitted in evidence because of its minute quantity, about 15 grams, of which 2 grams were used in a chemical test, and because the chemist was not properly qualified. The size of the specimen is clearly not controlling. Cf. Peachie v. State, 203 Md. 239, 100 A.2d 1. The State showed that Mr. Mills was employed as a chemist in the United States Chemical Laboratory and it developed that he had been working on similar samples for the past three years under a Chief Chemist who had had twenty years experience in narcotics. The appellant did not question his qualifications at that time, or object to his testimony until the sample itself was offered. Moreover, the appellant seemed to concede his qualification in the stipulation in regard to the sample obtained on January 3, 1956. We find no error.

The appellant contends, however, that the chemist's testimony as to the sample obtained on January 11, 1956, was too uncertain to establish the corpus delicti. Code 1951, art. 27, sec. 345(n), defines 'Cannabis' to include all parts of the plant Cannabis sativa L., but not to include 'the mature stalks of such plant, nor any product or manufacture of such stalks, except the resin extracted therefrom * * *.' The reason for the...