ORTH, J., delivered the opinion of the Court.
The appellant was convicted of breaking a storehouse and stealing goods of the value of $5 and upwards at a court trial
On appeal from the judgment six questions are presented on his behalf by his attorney, five of which go to the sufficiency of the evidence to sustain the conviction (discussed herein under three sub-headings) and the other of which concerns the admission of testimony of a witness produced by the State, and four questions are presented sua sponte.
The corpus delicti of the crime was proved by the testimony of the owner of a sporting goods business and the testimony of Officer William R. Balk of the Baltimore County Police Bureau. The owner testified that the storehouse of the business, located in Baltimore County, had been closed and secured on 26 November 1966, a Saturday. The next day, about 10:30 A.M., he stopped by the premises and observed that a panel in a large overhead door of the storehouse had been removed and that a large glass display case in the storehouse had been forcibly entered. Seventeen pistols of a total value of $1400 had been stolen therefrom. One of the pistols was a Colt official police .38 caliber, serial number 903434, wholesale value $52, fair market value $75 or $78 which the State produced and offered in evidence for identification purposes upon the identification of it by the witness as a pistol stolen from the storehouse. Officer Balk, responding to a call, arrived at the storehouse about 10:33 A.M. He said that the entry to the building was made by drilling a hole in one of the wooden panels of the overhead door and by sawing out the entire panel, about two feet by three feet in size. Tools, including a brace and bit, a two and a half foot pinch bar, a twelve inch pinch bar, a compass saw, hack saw blades, two pry-type instruments — one a rasp type and the other a punch type, were found in the building. The tools were admitted in evidence.
Officer Raymond McGuirk of the Baltimore City Police Department, testified that he was on duty about 9:15 P.M. on 17 December 1966 in the 2400 block of Hollins Ferry Road when he "heard a weapon discharged three times." He went to the 2400 block of Annor Court to investigate and saw the appellant holding a revolver. The appellant threw the revolver on the ground when he saw the officer. The officer arrested
The appellant, testifying in his own behalf, at one point said he had possession of the gun, that he was present when it was discharged and that he knew who discharged it but did not know the name of the person although "I know him when I see him." He did not know what happened to the gun after it was fired. "The police come around the corner, and I was the closest one to them, and they snatched me."
THE SUFFICIENCY OF THE EVIDENCE
1) The appellant contends that his arrest was illegal, therefore the seizure of the gun was unreasonable and as it was unlawfully seized it was inadmissible in evidence; if the gun was not in evidence against him, the evidence was not sufficient to sustain the conviction. But the legality of the arrest was not material for when evidence is not obtained as a result of an unlawful search or seizure, it is not rendered inadmissible by an illegal arrest. Fisher v. State, 1 Md.App. 505. The evidence was clear that the gun was not obtained by a search of the appellant nor was it seized from him. The arresting officer testified
2) The appellant's possession of the recently stolen gun was enough to give rise not only to the inference of fact that the possessor was the thief but would also support an inference that as the possessor he was the one who broke into the storehouse as well as the thief. Boggs v. State, 228 Md. 168, 172; Bury v. State, 2 Md.App. 674. The testimony of Officer McGuirk that the gun was in the hand of the appellant was sufficient to show exclusive possession by the appellant. The trial court could properly consider the possession about 3 weeks after it was stolen to have been "recent." The Court of Appeals and this Court have declined to set a yardstick to measure "recent" but have ruled that what is "recent" depends upon the circumstances in each case. Butz v. State, 221 Md. 68, 77; Musgrove v. State, 1 Md.App. 540, 544. So in Cason v. State, 230 Md. 356, stolen property found in possession of the defendant over 4 months after its theft was deemed "recent"; in Anglin v. State, 1 Md.App. 85, over 6 months; in Gamble v. State, 2 Md.App. 271 about 6 months. The appellant claims that the possession was not "unexplained" but his "explanation" was that the gun was not in his possession, in direct contradiction
3) The identity of the appellant as the criminal agent having been fixed by his guilty possession of the gun, the trial court could properly infer that he broke the storehouse and stole the gun. The inference did not change because nothing more was shown. There was no credible evidence offered that the theft was committed by someone else so that the appellant would become a receiver of stolen goods. See Jordan v. State, 219 Md. 36.
Nor was it essential to the verdict that the trial court specifically find that the appellant stole all the goods taken. He was convicted of breaking the storehouse and stealing goods of the value of $5 and upwards. The fair market value of the stolen gun found in his possession was shown to be $75 or $78, proving the offense charged.
The test of the sufficiency of the evidence in a case tried before the court without a jury is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. Sadler v. State, 1 Md.App. 383. As the evidence here met this test the finding of the trial court thereon was not clearly erroneous. Md. Rules, 1086.
THE CHALLENGED TESTIMONY
Prior to trial, the appellant moved for discovery under Md. Rule, 728, which motion included a request, pursuant to paragraph a3 of the rule, that the State furnish a list of the names and addresses of the witnesses whom it intended to call to prove its case in chief. No order appears to have been passed by the court on the motion. The State answered, giving the names and addresses of such witnesses, but the list did not contain the name of Officer Raymond McGuirk of the Baltimore City Police Department. The motion had been prepared by the attorney then representing the appellant and whose appearance had thereafter been stricken. When the case came on for trial the
THE CONTENTIONS RAISED SUA SPONTE
The contentions raised sua sponte are without merit. The first with regard to Officer McGuirk being permitted to testify has been resolved herein. The second concerns the weight of the evidence, which is a matter for the trier of facts. Dunlap v. State, 1 Md.App. 444. The appellant's third contention is that his conviction was improper because "the officer who brought charges against him and on whose sworn testimony he was held for the Grand Jury was not present at his trial." The point was not raised and decided below and is not properly before us. Md. Rules, 1085. In any event, the record does not disclose this allegation to be factually correct, but assuming that it is, we know of no requirement that witnesses before a grand jury be present at the trial of a defendant or that they testify at the trial. Had the appellant desired the testimony of the officer to whom he refers, he was entirely free to call him. The appellant lastly contends that he was given a 6 year sentence "on and because of a written report of a so-called polygraph expert after taking (submitting to) a lie detector test that consisted of 10 questions which is not basis enough to determine truthfulness or no." This apparently refers to a matter which occurred in the penalty stage and not the guilt stage of the proceedings. The verdict was rendered on 2 October 1967 and the imposition of sentence was deferred pending a probation report. Sentence was imposed on 4 December. At that time defense counsel noted for the record that after the verdict was
Md. Rule 717 provides that when an indictment is filed, the names of the witnesses on whose evidence it was based shall be endorsed thereon. The record does not disclose whether McGuirk testified before the Grand Jury which returned the indictment against the appellant. However, the point was not raised and in any event Rule 717 further provides that the failure to so endorse the names shall not affect the validity or sufficiency of the indictment, or the admissibility of other evidence, but the court on motion by the defendant, shall direct the names to be so endorsed, or otherwise furnished to the defendant, and may grant such continuance or postponement of the case as justice may require.