Appeal from the Criminal Court of Baltimore (SODARO, J.).
The cause was argued before Brune, C.J., and Henderson, Hammond, Horney and Marbury, JJ.
MARBURY, J., delivered the opinion of the Court.
Found guilty by a court, sitting without a jury, of the illegal sale and possession of narcotics and determined to be a second offender on each of two indictments, Robert Lee appeals from judgments and sentences of ten years in the Maryland Penitentiary, the sentences to run consecutively. He asks us to reverse the judgments and sentences on the ground that the lower court committed reversible error in deciding the case because the defense attorney had been unsuccessful in obtaining, through a motion for discovery, the name and address of an informer who, appellant claims, was necessary for a proper defense of his case.
Sergeant Dino, a federal narcotics agent, testified that he purchased heroin on three separate occasions from the appellant. On the first occasion he was introduced to Lee by one Steve Prestack, an informer, in the vicinity of the 5800 block of Belair Road shortly before 11:00 p.m., March 12, 1963. The agent advised appellant he wanted to purchase heroin, and the appellant informed him that he had a supply in Baltimore and that the price would be twelve dollars per deck. Dino gave Lee twenty-five dollars for two decks. As arranged, the agent and the informer later met the appellant shortly after midnight on March 13, 1963, at which time appellant delivered directly to Dino the two decks of heroin and a dollar in change. Arrangements were made for Dino, the informer, and Lee to meet later that evening. They met as planned, an additional twenty-five dollars was given to appellant, and about an hour later he returned with two decks of heroin and a dollar change, finding Dino alone this time.
The agent further testified that he again met with Lee on March 18th at about 11:00 p.m., at which time they agreed
to meet about 1:00 p.m. the following day near Madison and North Avenues. The rendezvous was kept and agent dino ordered three decks of heroin, giving appellant thirty-seven dollars. As before, Lee left, returning later with twelve capsules of heroin this time, giving Dino eleven and keeping one for himself. Prestack was not present at either of these meetings. Lee was subsequently arrested by federal agent Notel pursuant to a warrant, the validity of which is not in question.
On cross-examination of witness Dino, defense counsel asked him for the name and address of the informer and where he might be located.He stated that the informer's name was Steve Prestack, but he was unable to give an address or state where he might be located. He testified that he had known the informer about two or three weeks but that he knew nothing about his or appellant's personal lives.
In support of his contention that he was entitled to know the name and address of the informer, appellant relies strongly on the case of Roviaro v. United States, 353 U.S. 53. There the petitioner was convicted of an illegal sale of narcotics to one "John Doe", who was an informer. The petitioner had demanded his identity and the government's refusal to disclose the identity was held by the Supreme Court to be reversible error. The case was recognized but found distinguishable by Judge Horney for this Court in McCoy v. State, 216 Md. 332, 337, 140 A.2d 689. That case state the rule that ordinarily the State has a privilege of non-disclosure and is not required to divulge the name of one who furnishes information of violations of law to an enforcement officer. Also stated was that where the informer is a participant in the alleged illegal act and he was not already known to the accused who has made a proper demand upon the State for identification and location of the informer, then the general rule does not apply. As stated in Roviaro v. United States, supra, at pp. 60-61:
"Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of cause, the privilege must give way."
See Drouin v. State, 222 Md. 271, 286, 160 A.2d 85, for the rule of disclosure of an informer where the issue of probable cause to make an arrest without a warrant depends upon ...