Appeal from the Criminal Court of Baltimore (CULLEN, J.).
The cause was argued before Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ.
BRUNE, C. J., delivered the opinion of the Court.
The defendant-appellant, Reed, was tried in the Criminal Court of Baltimore before a judge, sitting without a jury, under a fourteen-count indictment charging violation of the narcotics laws. He was convicted and sentenced under some (but not all) of these counts, and he appeals.
In each of the counts of the indictment numbered 1 to 7, inclusive, he was charged with an offense committed on March 12, 1960. In each of the counts numbered from 8 to 14, inclusive, he was charged as a second offender (see Code (1957), Art. 27, Sec. 300). That is, these counts alleged the historical fact of the defendant's prior narcotics conviction in 1955, which was on charges of having in his possession and under his control, and of selling and dispensing, a narcotic drug (on that occasion cannabis), and these counts also alleged a current offense committed on March 12, 1960, just as already charged in the corresponding count among the first seven counts. To summarize the counts by subject matter: counts 1 and 2 and their corresponding counts 8 and 9 dealt with selling and dispensing heroin to a named individual, one Lozowicki; counts 3 and 4 and their corresponding counts 10 and 11 dealt with possession and control of heroin; counts 5 and 6 and their corresponding counts 12 and 13 dealt with possession and control of cannabis (often known as marijuana); and count 7 and its corresponding count 14 dealt with possession of a hypodermic needle and syringe for the purpose of administering a habit forming drug. The docket entries for the day of the trial, April 29, 1960, show that the appellant was tried under a plea of not guilty and also state: "Verdict: Guilty, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13th Counts." The docket entries record no findings on Counts 1, 2 or 14.
An examination of the transcript shows that the defendant made a motion for a directed verdict on the ground that the evidence showed that the sale alleged was made to a person other than the individual named in the indictment as the purchaser. After commenting that "They have so many counts there, it is hard to go through them", the court granted the motion as to counts 1 and 2, pointed out that it did not apply to the 3rd count and then "overruled" the motion as to the 3rd, 4th, 5th, 6th and 7th counts (to each of which the motion as made seems inapplicable). The trial court appears either to have granted or to have been about to grant the motion as to the 8th count (sale), when the colloquy turned to the fact that the 8th and subsequent counts alleged the prior conviction. However, the court did in the course of the discussion agree with the defendant's trial counsel that "the sale is out." This would seem to have required the granting of the motion as to the 8th and 9th counts in conformity with the ruling on the 1st and 2nd counts. Counts charging sale and dispensing, respectively, were evidently and properly treated on the same basis. They involved the same transaction and differed only in being based upon two different words of the same statute. The defendant filed a motion for a new trial, which the Supreme Bench granted as to the 8th and 9th counts, but denied as to the other counts. The docket entries disclose no subsequent action by the trial court with regard to the 8th and 9th counts. After the denial of the motion for a new trial as to counts other than 8 and 9, the trial court imposed a sentence of five years' imprisonment, which is the minimum term for a narcotics law second offense and the maximum term for a first offense.
The fact of the appellant's prior conviction is not and was not disputed. On the contrary, it was stipulated by his trial counsel in open court that there had been such a conviction.
No question has been raised on this appeal with regard to the absence of docket entries showing any final disposition of counts 1, 2, 8, 9 and 14. As to counts 1, 2, 8 and 9, it seems clear that findings of not guilty should have been formally entered as to each in accordance with the trial court's
oral rulings which were specifically stated with regard to counts 1 and 2, and which appear from the transcript to have been applicable also to counts 8 and 9. We consider that findings of not guilty were actually made by the trial court on these counts and that they should now be entered on the docket.
The absence of any docket entry recording the court's finding on count 14 has no effect upon the findings of guilt on counts 3, 4, 5, 6, 7, 10, 11, 12 or 13 nor upon the validity of the sentence imposed under those counts; but the absence of any finding on that count is equivalent to a finding of not guilty thereunder. Cf. Hechter v. State, 94 Md. 429, 50 A. 1041; Glickman v. State, 190 Md. 516, 60 A.2d 216; Felkner v. State, 218 Md. 300, 306, 146 A.2d 424.
At the end of the trial court's consideration of individual counts of the indictment the judge stated: "All right, you have got the possession of various articles in the prior conviction, [the motion for a directed verdict is] overruled as to those, granted as to the sale." The defendant's trial counsel then rested the case as to possession and control and proceeded to argue those questions to the court. At the conclusion of this argument, the trial judge stated that he could not agree with the argument of defense counsel, that he was "completely satisfied that this crime has been involved with narcotic drugs, the corpus delicti is there and tied in here sufficiently and was based on his [the defendant's] admission, and he couldn't be convicted without that * * *." The trial judge then announced (according to the transcript): "I will have to find him guilty on the count other than the possession." If this announcement of the court's findings is accurately recorded, it seems to indicate two slips: first (quite possibly a stenographic error), in saying "count" instead of "counts"; and second, in saying "possession" instead of "sale."
Almost anyone can make a slip of the tongue, and judges are not immune from such errors. After a careful study of the entire colloquy relating to the sufficiency of the evidence both before and after the closing argument of defense ...