Appeal from the Criminal Court of Baltimore; Niles, C. J., and Manley and Cullen, JJ.
Brune, C. J., and Hammond, Horney, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.
The appellant, Robert Galloway White, and a co-defendant, James Frank Wade, were found guilty by Chief Judge Niles and Associate Judges Manley and Cullen in the Criminal Court of Baltimore, sitting without a jury, under two indictments, tried together, one charging the murder of a 67-year old grocery store proprietor, and the other the assault and robbery with a deadly weapon which culminated in the death of the victim. After motions for a new trial on behalf of both defendants on both charges were heard and denied by the Supreme Bench of Baltimore City, the appellant was sentenced to death and Wade to life imprisonment in the murder case. Sentence was suspended as to both defendants on the robbery charge. Wade did not appeal. These two appeals in one record by White challenge his conviction on both charges. Both defendants had filed petitions as indigents, and separate court-appointed counsel represented each defendant below, and White on this appeal.
The appellant first contends that it was erroneous for the police to have waited four days from his arrest before bringing him before a magistrate for a preliminary hearing. The appellant had been taken into custody at 12:40 P.M. on Friday, May 27, 1960, and while at Central District Station he made a confession to the police which, among other things, implicated the co-defendant Wade in the crime. Appellant was docketed at 6:30 P.M. at Central District and remained in custody until Tuesday, May 31, when he was charged before a magistrate. At the trial a detective lieutenant testified that the four-day delay was caused by investigation of Wade's connection with the crime as well as a sharp curtailment of magistrates' sittings over the Memorial Day week end.
At oral argument appellant's counsel conceded that he could not point to any prejudice to appellant which resulted from the delay in bringing him before a magistrate, and our review of the record discloses none. It has been held by this Court that a preliminary hearing is not necessary before a valid indictment can be obtained, Sykes v. Warden, 201 Md. 662, 93 A.2d 549 (1953), and that the absence of such a hearing will not invalidate a criminal conviction. Hardesty v. State, 223 Md. 559, 165 A.2d 761 (1960); Shorey v. State, 227 Md. 385, 177 A.2d 245 (1962). In Grear v. State, 194 Md. 335, 71 A.2d 24 (1950), as in this case, the arresting officers testified that there was a delay in bringing the accused before a magistrate in order to allow time for further investigations. In denying the defendant relief on that ground the Court said (at 349), "Like other legal proceedings, preliminary hearings may for sufficient reasons be postponed or continued * * *." Cf. Young v. State, 220 Md. 95, 151 A.2d 140 (1959).
Appellant entered a plea of guilty at the preliminary hearing before the magistrate and he now contends that it was erroneous for the trial court to have permitted the State to introduce this plea into evidence at the trial. However, no objection to the testimony as to the plea appears in the record and therefore the question is not properly before us, since it was not
raised below and decided by the trial court. Maryland Rule 885. However, we point out, without further discussion, that the contention is without merit. Cf. Williams v. State, 214 Md. 143, 132 A.2d 605 (1957); Weaver v. State, 226 Md. 431, 174 A.2d 76 (1961); Annotation, 141 A.L.R. 1335.
It is urged that it was an abuse of discretion for the trial court not to have followed a probation department report, which recommended that the appellant be given a life sentence and ...