Appeal from the Criminal Court of Baltimore; Cullen, J.
Brune, C. J., and Henderson, Hammond, Horney and Sybert, JJ. Sybert, J., delivered the opinion of the Court.
Appellant, Bernardo V. Ayala, was arrested on November 11, 1960 and subsequently charged with assault to commit
murder and with assault and battery upon Carole Viera, a woman to whom he was not married but who had been living with him for about a year. The arrest arose from an incident which occurred on October 21, 1960, the details of which it is unnecessary to set out since the sufficiency of the evidence has not been questioned.
On the date set for Ayala's arraignment, December 13, 1960, appearance was made by counsel of his own selection. Ayala, who had posted bail, was not present in court and his counsel stated he was not prepared for the arraignment. However, the record shows that appellant's counsel did receive a copy of the indictment on the same day and the arraignment was tentatively set for the following day. No further mention of arraignment or other proceedings appears on the record until December 20, 1960, the day of appellant's trial, when a docket entry records that appellant was arraigned and entered a plea of not guilty. However, the transcript of proceedings on that date reveals no formal arraignment, but prior to the actual trial of the case the following colloquy between the clerk of court and defense counsel appears on the record:
"(The Clerk) Bernardo V. Ayala. Mr. Stern. Mr. Stern, are you familiar with this indictment?
(The Clerk) What is the plea?
(Mr. Stern) The plea is not guilty, court trial.
(The Clerk) Not guilty, court trial in No. 4501."
Ayala was thereupon tried by the court sitting without a jury and was found guilty of assault and battery under the second count of the indictment and sentenced to confinement in the House of Correction for a period of three years.
In appealing the judgment and sentence the appellant, through court-appointed counsel other than his trial counsel, ...