Menchine, J.,
delivered the opinion of 'the Court. Davidson, J., dissents and filed a dissenting opinion at page 30 infra.
Michael Joseph Dempsey was convicted of breaking and entering (Art. 27, § 32, Annotated Code of Maryland, 1971 Repl. Vol.) and Grand Larceny by a jury in the Circuit Court for Dorchester County. He was sentenced to concurrent ten year terms. His appeal asks:
“1. Did the instruction to the jury subsequent to the preliminary hearing on the Motion to Suppress the confession deny a fair and impartial trial within the constitutional framework of the Fourteenth and Fifth Amendments of the Constitution of the United States?
[10]*102. Was there sufficient evidence to convict the Defendant of breaking and entering and grand larceny? ”
Fair Trial
When it appeared to the trial judge that the State would offer and that appellant would contest admissibility of an alleged confession, a hearing was conducted out of the presence of the jury to determine the preliminary issue in accordance with procedures recommended in Smith v. State, 189 Md. 596, 606, 56 A. 2d 818, 822-23. The arresting police officer, Cpl. Wilson Majors, and Dianna Webster, a secretary employed by the Cambridge Police Department, testified at the hearing at the instance of the State. The defendant and his wife also testified. The trial judge found that the proffered confession “was voluntarily made after proper warning.”
When the jury was brought back to the courtroom the trial judge addressed them as follows:
“Mr. Thomas and ladies and gentlemen, while you were not in the courtroom the Court heard testimony relating to the voluntary nature of a statement allegedly made by the defendant. You will hear the same testimony that the Court heard. The Court has found by a preponderance of the evidence that the statement was voluntarily made after proper warnings and that it was a voluntary statement in every regard. Now the same evidence will be given to you, and you will have the ultimate determination of deciding whether the statement was voluntary and whether it should be believed, and, of course, you make that determination beyond a reasonable doubt. If you find that it was voluntary, that it should be believed, then you give it the weight that you think it deserves, as you do any other evidence.”
There was no objection; no motion to strike; and no request for a clarifying or advisory instruction. It is plain, [11]*11accordingly, that the contention now made was not raised and decided in the trial court and ordinarily would not be considered on appeal. Rule 1085. See: Robinson v. State, 249 Md. 200, 216, 238 A. 2d 875, 884-85. Appellant maintains, however, that the remarks of the trial judge were so prejudicial to the rights of the accused as to deny him a fair and impartial trial and that we should take cognizance of the matter as plain error, citing Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280.
We observe that the course followed by the trial judge did not follow recommendations made in prior decisions of the Court of Appeals and this Court. In Linkins v. State, 202 Md. 212, 96 A. 2d 246, the Court of Appeals declared at 221-22 [250-51]:
“Admissibility does not signify that the evidence admitted has demonstrated or proved the fact to be proved, but merely that it is received by the tribunal for the purpose of being weighed with other evidence. Admissibility falls short of proof. The rule of law uttered by the judge, merely declares what is sufficient to go to the jury. The jury ultimately decides upon the total effect which we call proof.” (Italics supplied.)
In Barnhart v. State, supra, we said at 229 [285]:
“* * * the court should have made clear to the jury that its rulings merely declared that evidence produced before the court was sufficient to have the confession go to the jury; that the admission of the confession did not signify that it was thereby demonstrated or proved to be freely and voluntarily made beyond a reasonable doubt, admissibility falling short of such proof as being based only on prima facie proof; and that the ultimate determination of the jury as to voluntariness was to be only on evidence and rational inferences therefrom before them.” (Italics supplied.)
We shall again urge trial courts conducting pre[12]*12liminary hearings upon the admissibility of a confession in jury trials to adopt the following procedure at its conclusion: (a) if the trial court concludes during a preliminary hearing that a statement of the accused was involuntary, its decision should be placed upon the record out of the presence of the jury with no reference to such statement being made in their presence; (b) if the trial court concludes from all of the evidence that the State has shown by a preponderance of the evidence that it was voluntary, its decision also should be placed upon the record out of the presence of the jury without comment in their presence beyond the overruling of objection to its admission. The court may, if it feels that some comment to the jury is necessary or desirable to explain their temporary exclusion from the proceedings, inform them that the hearing was necessary to enable the court to determine whether certain disputed evidence was admissible in the proceedings before the jury. The trial court, however, should avoid any comment to the jury that a determination had been made that such statement meets constitutional standards, or that it was freely and voluntarily given. Such a determination is an issue directed to the jury alone.
This is not to say that the remarks of the trial court in the subject case justify reversal. It was a necessary preliminary duty of the trial court to make a determination as to the admissibility of the statement of the accused. The Court of Appeals of Maryland in Smith v. State, supra, said at 603-04 [821-22]:
“* * * Before a confession can be admitted in evidence, the State must show, to the satisfaction of the court, that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess. If, after a consideration of both the evidence of the State and the evidence offered by an accused (if any be offered by him) regarding the matter, the court is of the opinion [13]*13that the evidence shows, prima fame, that the confession was freely and voluntarily made, it should be admitted in evidence; and, if not, it should be rejected.”
This Court in Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418, said at 600-01 [425]:
“ ‘Preponderance’ [of evidence] is defined in Black’s Law Dictionary 1344 (rev. 4th ed. 1968) to mean the ‘[g]reater weight of evidence, or evidence which is more credible and convincing to the mind.’
“In Smith v. State, supra, and other Maryland decisions, the term prima facie is used. That type of evidence has been defined to mean, ‘ . . .
Free access — add to your briefcase to read the full text and ask questions with AI
Menchine, J.,
delivered the opinion of 'the Court. Davidson, J., dissents and filed a dissenting opinion at page 30 infra.
Michael Joseph Dempsey was convicted of breaking and entering (Art. 27, § 32, Annotated Code of Maryland, 1971 Repl. Vol.) and Grand Larceny by a jury in the Circuit Court for Dorchester County. He was sentenced to concurrent ten year terms. His appeal asks:
“1. Did the instruction to the jury subsequent to the preliminary hearing on the Motion to Suppress the confession deny a fair and impartial trial within the constitutional framework of the Fourteenth and Fifth Amendments of the Constitution of the United States?
[10]*102. Was there sufficient evidence to convict the Defendant of breaking and entering and grand larceny? ”
Fair Trial
When it appeared to the trial judge that the State would offer and that appellant would contest admissibility of an alleged confession, a hearing was conducted out of the presence of the jury to determine the preliminary issue in accordance with procedures recommended in Smith v. State, 189 Md. 596, 606, 56 A. 2d 818, 822-23. The arresting police officer, Cpl. Wilson Majors, and Dianna Webster, a secretary employed by the Cambridge Police Department, testified at the hearing at the instance of the State. The defendant and his wife also testified. The trial judge found that the proffered confession “was voluntarily made after proper warning.”
When the jury was brought back to the courtroom the trial judge addressed them as follows:
“Mr. Thomas and ladies and gentlemen, while you were not in the courtroom the Court heard testimony relating to the voluntary nature of a statement allegedly made by the defendant. You will hear the same testimony that the Court heard. The Court has found by a preponderance of the evidence that the statement was voluntarily made after proper warnings and that it was a voluntary statement in every regard. Now the same evidence will be given to you, and you will have the ultimate determination of deciding whether the statement was voluntary and whether it should be believed, and, of course, you make that determination beyond a reasonable doubt. If you find that it was voluntary, that it should be believed, then you give it the weight that you think it deserves, as you do any other evidence.”
There was no objection; no motion to strike; and no request for a clarifying or advisory instruction. It is plain, [11]*11accordingly, that the contention now made was not raised and decided in the trial court and ordinarily would not be considered on appeal. Rule 1085. See: Robinson v. State, 249 Md. 200, 216, 238 A. 2d 875, 884-85. Appellant maintains, however, that the remarks of the trial judge were so prejudicial to the rights of the accused as to deny him a fair and impartial trial and that we should take cognizance of the matter as plain error, citing Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280.
We observe that the course followed by the trial judge did not follow recommendations made in prior decisions of the Court of Appeals and this Court. In Linkins v. State, 202 Md. 212, 96 A. 2d 246, the Court of Appeals declared at 221-22 [250-51]:
“Admissibility does not signify that the evidence admitted has demonstrated or proved the fact to be proved, but merely that it is received by the tribunal for the purpose of being weighed with other evidence. Admissibility falls short of proof. The rule of law uttered by the judge, merely declares what is sufficient to go to the jury. The jury ultimately decides upon the total effect which we call proof.” (Italics supplied.)
In Barnhart v. State, supra, we said at 229 [285]:
“* * * the court should have made clear to the jury that its rulings merely declared that evidence produced before the court was sufficient to have the confession go to the jury; that the admission of the confession did not signify that it was thereby demonstrated or proved to be freely and voluntarily made beyond a reasonable doubt, admissibility falling short of such proof as being based only on prima facie proof; and that the ultimate determination of the jury as to voluntariness was to be only on evidence and rational inferences therefrom before them.” (Italics supplied.)
We shall again urge trial courts conducting pre[12]*12liminary hearings upon the admissibility of a confession in jury trials to adopt the following procedure at its conclusion: (a) if the trial court concludes during a preliminary hearing that a statement of the accused was involuntary, its decision should be placed upon the record out of the presence of the jury with no reference to such statement being made in their presence; (b) if the trial court concludes from all of the evidence that the State has shown by a preponderance of the evidence that it was voluntary, its decision also should be placed upon the record out of the presence of the jury without comment in their presence beyond the overruling of objection to its admission. The court may, if it feels that some comment to the jury is necessary or desirable to explain their temporary exclusion from the proceedings, inform them that the hearing was necessary to enable the court to determine whether certain disputed evidence was admissible in the proceedings before the jury. The trial court, however, should avoid any comment to the jury that a determination had been made that such statement meets constitutional standards, or that it was freely and voluntarily given. Such a determination is an issue directed to the jury alone.
This is not to say that the remarks of the trial court in the subject case justify reversal. It was a necessary preliminary duty of the trial court to make a determination as to the admissibility of the statement of the accused. The Court of Appeals of Maryland in Smith v. State, supra, said at 603-04 [821-22]:
“* * * Before a confession can be admitted in evidence, the State must show, to the satisfaction of the court, that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess. If, after a consideration of both the evidence of the State and the evidence offered by an accused (if any be offered by him) regarding the matter, the court is of the opinion [13]*13that the evidence shows, prima fame, that the confession was freely and voluntarily made, it should be admitted in evidence; and, if not, it should be rejected.”
This Court in Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418, said at 600-01 [425]:
“ ‘Preponderance’ [of evidence] is defined in Black’s Law Dictionary 1344 (rev. 4th ed. 1968) to mean the ‘[g]reater weight of evidence, or evidence which is more credible and convincing to the mind.’
“In Smith v. State, supra, and other Maryland decisions, the term prima facie is used. That type of evidence has been defined to mean, ‘ . . . good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient.’ Black’s Law Dictionary, supra, at 1353-1354.
“A perusal of Smith v. State, supra, and the other Maryland decisions to which we have referred in n. 8, supra, leads us to the inescapable conclusion that while Maryland has articulated that the evidence must be prima facie, it has, nevertheless, continuously been applying the preponderance of the evidence standard that a confession be freely and voluntarily made before it is admissible.” (Footnote omitted.)
In the subject case although the trial judge pointed out to the jury that he had determined that the statement met this test of admissibility, he was careful to point out to the jury that it was that body’s function to determine whether the statement had been freely and voluntarily made after Miranda warnings, and that decision upon that issue must be justified by proof satisfactory to them beyond a reasonable doubt.
[14]*14Appellant places his chief reliance upon .Barnhart, supra. We regard that case, however, as readily distinguishable. It is true that upon our own motion we did reverse in Barnhart, supra, although no objection had been made to the comments of the trial judge in that case. We believe, however, that the subject case is controlled by our decision in McCarson v. State, 8 Md. App. 20, 257 A. 2d 471. McCarson distinguished Barnhart, supra, in language equally pertinent here, saying at 22-23 [473]:
“The appellant also contends that the court erred in announcing its preliminary decision in the presence of the jury, in that by so doing it usurped a function of the jury. At the close of the evidence received out of the presence of the jury, the judge announced his decision in the jury’s presence. The transcript reads:
‘(The jury returned to the jury box, and the following transpired in the presence of the jury:)
THE COURT: I will rule the statement is voluntary and admissible. Of course, you have your exception.
MR. WILSON (defense counsel): Yes, sir.’
In the circumstances, considering the appellant’s failure to contradict or refute the evidence that the confession was voluntary, to object to its admission and to request instructions on the issue, we see no prejudicial error requiring reversal. The instant case is readily distinguishable on the facts from Barnhart v. State, 5 Md. App. 222, where the judge, after hearing evidence without the jury, indicated to the jury that he had found the confession voluntary beyond a reasonable doubt, and told the jury in admitting the confession after the evidence was received in their presence that it was his opinion that the testimony showed ‘conclusively that it was freely and voluntarily given.’ ” (Italics supplied.)
[15]*15Our constitutionally mandated independent, reflective appraisal of the entire record in the subject case persuades us that there was no credible evidence refuting or contradicting testimony that Miranda warnings had been given and that the statement of the accused was freely and voluntarily given.
The evidence upon the issue in substance was as follows:
Corporal Majors, a criminal investigator of the Cambridge City Police Department, testified that on Saturday, November 10, 1973, he had been assigned to investigate a breaking and entering of the Lantern Inn on Race Street, in Cambridge, Maryland. In the course of that investigation, the accused came under suspicion.
On Monday, November 12, 1973, following information gained over the weekend, Majors went to a room in the Cambridge Hotel occupied by the appellant and his fiancee — later his wife. He said that both subjects had been drinking, and there were a number of empty beer cans (all Pabst brand)1 in the room. He said that the appellant walked with him to the Cambridge Police Station, arriving after 1 p.m., where appellant .executed a written waiver in the following form:
“STATEMENT OF MIRANDA RIGHTS
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
[16]*16WAIVER OF RIGHTS
I have read the above statement of my rights and I understand each of those rights, and having these rights in mind I waive them and willingly make a statement.”
Majors testified that a written statement thereafter also was executed by appellant, reading as follows:
“STATEMENT OF: Michael Joseph Dempsey
1. ) Q. What is your full name?
A. Michael Joseph Dempsey.
2. ) Q. What is your address?
A. 619 Race Street.
3. ) Q. What is your date of birth?
A. 8-8-45
4. ) Q. How old are you?
A. 28
5. ) Q. Mr. Dempsey, I am investigating a incident that occurred at the Lantern Inn at 529 Race Street, sometime in the early morning hours of 11-10-73. Would you tell me in your own words, what you know about this incident?
A. I broke into the back door, went in and took $60.00 out of the cigarette machine, a case of beer which I left on the side. Then I left after receiving the money and the case of beer. That’s all, I broke in there.
6. ) Q. The investigation revealed that there was a green colored piggy bank that was taken from the scene, containing an unknown quantity of coins. Did you also take this?
A. Yes
7. ) Q. How much was in it?
A. 176 pennies
[17]*17Is there anything else you would like to tell me about this incident? 8.) Q.
No, except that I had just left Baltimore County Jail Friday afternoon. I went to the welfare office and they wouldn’t give me nothing and I was broke and didn’t have anything or anyone to give me anything. I went the other way and stole to eat and sleep. A.
/s/ MICHAEL J. DEMPSEY
Witness: /s/ Wilson H. Majors
Wilson H. Majors Detective Corporal”
He testified that no force or coercion; no offer of hope or reward; no indication that appellant would be better off or that a judge would be more lenient was directed to the appellant to induce the confession. He said the confession was appellant’s voluntary statement, freely given. He acknowledged that appellant had been drinking but said that Dempsey was not intoxicated. He said that the statement had been made orally in the presence of himself and Dianna Webster and that it had thereafter been typed, executed and witnessed. He said that Dianna Webster had been present also when the Miranda waiver was executed.
Mrs. Dianna Webster testified that following her return from luncheon on November 12, 1973 at about 1 p.m., she saw the appellant with Corporal Majors and “was asked if I would take a statement.” The following quotations give the warp and woof of her testimony:
“Q Did he seem to understand each and every question that was asked him?
A Yes, sir, he did.
Q Did he answer the questions?
A Yes, sir.
Q Did he seem to know what he was doing?
[18]*18A Yes, he did.
Q Did the officer hold out any reward to him for making the statement?
A No, sir, he did not.
Q Did he threaten'to harm him in anyway or use physical violence to his person unless he gave him the statement?
A No, sir.
Q Did the officer offer him any money, offer him anything for his statement?
A No, sir, he did not.
Q He did not?
A No.
Q Did he use any coercion or duress on him to get his statement, any subtle type of duress?
A No, sir.
Q Did he tell him he would be immuned from prosecution or anything of that nature?
A No, sir, he did not. Only one thing I would like to add, at the end of the statement I do recall Mr. Dempsey saying as he was signing the statement, he said, he looked up at Detective Majors and said, ‘You know, Pm signing my life away’, that was all.
“Q You saw him put his signature on here, on that waiver?
A Yes, sir.
* * *
Q Do you think that his condition was such that he could give intelligent answers in a voluntary way?
A Yes, I do.
Q I see. How long were you with him?
A How long was I with him?
[19]*19Q Yes.
A Well, I guess it was about fifteen or twenty minutes, then I left the office and went in my office and typed.
Q Did you see him stand-up during that time at all?
A I recall, I asked him to move over closer to my desk so I could hear what he was saying, but that was all.
Q Did he move closer to your desk?
A Yes, he did.
Q Did he seem to respond to all the questions?
A Yes, sir.
Q You think he had been drinking, but he wasn’t —
A He may, I don’t know, I’m not saying. There was no reason for me to believe he was drinking, but I’m not saying that he had not had a drink or two, because he may have. * * *
* * *
Now let me ask you this, how did you take this statement down?
A How did I write it down?
Q Yes.
A Shorthand.
Q I see. When did you transcribe it?
A When did I transcribe it? After we completed the statement I went back to my office, and from my notes I typed it on the form, white form, just a white sheet of paper in question and answer form.
Q The same day?
A Yes, right after.
Q When was it presented to Mr. Dempsey?
A I proceeded back to Detective Major’s office after the statement was finished being typed. Mr. [20]*20Dempsey then read over the statement and signed it and said, ‘You realize I’m signing my life away.’
Q That is when he said that. You saw him sign it?
A Yes, I did.”
At no time did the appellant directly contradict any of the testimony of the police or the secretary. His testimony before the trial court was limited to an implied assertion that he was by reason of intoxication without conscious recollection of having made the statements attributed to him or having executed the two documents. This is quite graphically shown by the following excerpts from his testimony:
“Q All right. When you got in his office who was there?
A Corporal Majors.
Q All right. Did he address you with these warnings, warning you about talking to him?
A Not that I recall.
* * * Did he mention anything to you about what he wanted to question you about?
A Yes, sir, he found some change in my room.
Q We know that. I am talking about at police headquarters.
A I don’t remember.
Q You don’t remember him saying anything to you about you having a right to remain silent?
A No, sir.
Q The Miranda rights. Do you know what they are?
A Yes, sir.
Q You’re saying you don’t remember whether he gave them to you or not at that time?
A I’m just not sure.
[21]*21Q On this waiver of rights, I’ll show you this paper, T have read the above statement of my rights. I understand each of those rights, and having these rights in mind, I waive them and am willing to make a statement.’ This is signed Michael J. Dempsey.
A J. Dempsey.
Q Is that your signature?
A Doesn’t look like my signature. I don’t write like that.
Q Well, you say this isn’t your signature, it doesn’t look like it. Did you sign anything at —
A I don’t remember whether I signed anything or not.
Q You don’t know whether you signed it or not?
A No, sir.
Q How long were you there, do you know that?
A No, sir.
Q Do you know where you went after he talked to you?
A Yes, sir, I went back to the hotel.
Q Who let you go back?
A He did.
Q Did he go with you?
A No, sir.
Q All right. Now, let me ask you this, who else was there with Officer Majors at any time during the time you were at police headquarters?
A Well, there was a young lady that came in, after he had went out and said, ‘Let me get the secretary’, or something.
Q How long were you talking with him before he asked the girl to come in?
A I don’t know.
[22]*22Q Did you do any talking while she was there with Officer Majors?
A Yes, sir, she was writing something.
Q You don’t know what it was?
A No, sir.
Q You don’t know what he told her — what you told her?
A No, sir.
Q Again, you deny — you don’t know whether that is your signature or not.
A I’m not going to deny it, but it certainly does not look like my signature.
Q Well, did you hear them say anything about having an attorney?
A No, sir.
Q When you were talking to him at police headquarters?
A No, sir.”
The lack of recall of the appellant concerning the waiver and statement was in marked contrast to his recollection of the immediately preceding events. The following excerpts from his testimony will serve to illustrate the point:
“Q * * * What happened at twelve o’clock?
A Mr. Majors came to the door, knocked on the door. I asked him — he asked if he could come in, and I said, ‘Yes, sir.’ He asked me what did I do on Friday night, and I told him that I did nothing, except that I was at the bar drinking and so forth.
Q Did he tell you why he wanted you there to headquarters?
A He told me that before I left the hotel.
Q All right. So what did he tell you?
A He told me he was — he said he had a breaking and entering and grand larceny that he was [23]*23checking out, and wanted to know of my whereabouts on Friday night.
Q Then what did you tell him, or he tell you?
A He told me he was taking me down to headquarters and talking to me there. It seems as though he didn’t want to talk to me in front of my wife, so he assured her before I left that I would be back within the hour.
Q So you went down there with him?
A Then we went down there.
Q We are talking about this particular afternoon from the hotel here. Which way did you go to headquarters, do you recall?
A We made a left and went downstairs.
Q Yes, but once you got out of the —
A We walked and made a left and walked thru the alley.
Q Thru an alley to headquarters?
A Yes.
“Q You remember the officer coming to your hotel room, right?
A Yes, sir.
Q You remember asking him in?
A Yes, sir.
Q And you remember talking to him?
A Yes, sir.
Q You remember giving him consent to search your room?
A Yes, sir.
Q And you remember that he did search your room?
A No, sir, he didn’t search my room.
Q Where did he find this? (indicating) A He found it beside my wife’s pocketbook. He [24]*24didn’t search, he come right in, went over there and picked it up.
Q It was right there in the open?
A Yes, sir, it wasn’t hid.
Q It wasn’t hid?
A No, sir.
Q How many rolls was it, do you know?
A It was nine rolls.
Q Nine rolls. Now, you remember that he took those nine rolls of money?
A He picked the money up.
Q You remember that. So you remember it was twelve o’clock on that day, it wasn’t any other hour; so he took you into the station, is that right?
A Took me into the police station, yes, sir.
Q Did you walk on your own?
“A Uh-huh.
Q Nobody dragged you in there or anything, did they?
A No, sir.
Q And you say you sat down, you remember the young — you said you remember he said that a young lady was coming in, he went out to get the secretary, you remember that, you testified to that.
A Yes.
Q And you remember there were two desks in there, you sat in one and she sat in the other.
A No, she did not sit in the other.
Q Where did she sit?
A Just like I said, there were two chairs like that, one desk, I sat at one and she sat at the other.
Q There was two chairs and one desk?
A Yes, sir.”
Mrs. Dempsey testified that she was with the appellant in [25]*25his hotel room from Saturday at 1 p.m. until Officer Majors came to the room on Monday around noon. She said he was drinking heavily and had gone out four or five different times to get six packs of beer. As to appellant’s sobriety she said, “his eyes were bloodshot, he wasn’t staggering but he was intoxicated. * * * He had been drinking ever since Friday afternoon without stopping * * She was then asked:
“Q You were with him Saturday until the time Officer Majors came?
A Yes, sir.
Q Well, do you feel that when Officer Majors was talking to him in the apartment that your husband knew what he was talking about when he answered him or talked to him?
A I think he was more or less, ‘Just don’t give a darn’, you know, because when he went down to the police station with Officer Majors he took a beer and put it in his pocket and took it right to the police station with him.
Q You saw him walk out of there with the can of beer?
A Yes, sir.
Q Where did he have it when he walked out?
A He stuck it in his pocket.
Q I see. Was it open or not?
A No, it was closed.
Q So you felt that he was intoxicated?
A Yes, sir, I know he was.”
In Robinson v. State, supra, the trial judge told the jury that he would rule “that in the Court’s opinion, the evidence established is that any statement taken from this defendant was a voluntary one of his own free will.” Id. at 215 [884]. The Court in Robinson said at 216-17 [884-85]:
“It will be observed that appellant did not object to the reading of the court’s remark to the jury, [26]*26that he did not move to strike it nor did he ask that the jury be instructed to disregard it; moreover, one should bear in mind, at no time thereafter did he make any objection, file any motion to strike or submit any request for an instruction to disregard the statement. There was no request that the court cover the matter in his charge to the jury. The court did not mention it in his charge and appellant did not except to his failure to do so. It was neither mentioned nor referred to in any succeeding motion, including the motion for a new trial. It was neither mentioned nor referred to in the arguments of counsel at the trial nor in the arguments at the hearing on the motion for a new trial. The question appears to have been raised in this Court for the first time. We think, therefore, that the propriety of communicating the court’s expression of opinion to the jury is not reviewable on this appeal. Maryland Rule 756, Bennett v. State, 230 Md. 562, 568, 188 A. 2d 142 (1963).
“Assuming for the sake of argument, however, that the question is reviewable and assuming further that there was some impropriety in allowing the jury to learn how the court felt about it, we are not persuaded that appellant was prejudiced thereby. A quite recent statement of the general rule will be found in Davis and Peterson v. State, 1 Md. App. 581, 232 A. 2d 535 (1967), cert, den. by this Court 17 November 1967:
‘Prior to admitting the statements, testimony as to their voluntariness was first given before the trial judge out of the presence of the jury and subsequently repeated in the presence of the jury.
‘The admissibility of a confession is, preliminarily, a matter for the trial judge. Conflicts in testimony as to how the confession was obtained are to be resolved in the first instance by the trial judge and if, after finally [27]*27and independently resolving the issue of voluntariness against the accused, the trial judge admits the confession, the matter of voluntariness is finally determined by the jury. Jackson v. Denno, 378 U. S. 368; Sims v. Georgia, 385 U. S. 538; See “Jackson v. Denno — Revisited,” by Justice William A. Grimes, Vol. 6, No. 3, Trial Judges Journal; Smith v. State, 237 Md. 573; Hall v. State, 223 Md. 158, 169-170. The procedure followed in the lower court was proper and we find from the record no basis for disturbing the conclusion of the trial judge or the jury.’ Id. at 585.
The only witness produced on behalf of the appellant was his older (32) brother. His testimony did not go beyond stating that the appellant did not complete any grades beyond the fourth and that he went to the Johns Hopkins Hospital about six times for surgery. It is immediately apparent that when Judge Dyer ruled appellant’s statement to be ‘a voluntary one of his own free will’ the State’s evidence of ‘voluntariness’ was uncontradicted. It is most unlikely, therefore, that the jury, on the evidence then before it, would have reached a different conclusion, even if the court’s opinion had not been made known to them.”
Appellant next goes on to contend that the sentence, “You will hear the same testimony relating to the voluntary nature of a statement allegedly made by the defendant” contained within the court’s remarks “is unfair because it forces the defendant to testify for the purposes of the motion before the jury” with the jury “hearing of his prior record.” The easy answer to this complaint is that he was not questioned about a prior record while testifying before the jury.
Not only was there no denial or contradiction of the testimony that the statement was voluntarily given after waiver of rights, there is no permissible inference from the [28]*28testimony of Dempsey or his wife that the confession was caused by intoxication. Under similar factual conditions (except that drugs rather than alcohol was the intoxicant), the Court of Appeals said in Bryant v. State, 229 Md. 531, 535-36, 185 A. 2d 190, 192:
“On cross examination and under questioning by the court this witness testified that appellant had probably taken heroin within several hours prior to the confession and was probably under its influence, but appeared normal in all respects, responding coherently to questioning, including many answers involving details as to dates and times. The appellant’s counsel did elicit from the witness the fact that the appellant was probably under the influence of narcotics at the time of the confession, but this does not of itself make the confession not free and voluntary. In People v. Waack (Cal.), 223 P. 2d 486, the defendant was charged with unlawfully furnishing and administering narcotics to another. In rejecting the defendant’s contention that his confession was not freely given due to his being under the influence of narcotics, the court said, at page 489:
‘The question is not whether the defendant was suffering from the effects of a narcotic when the statements were taken, but whether such statements were freely and voluntarily given by defendant at a time when he knew and understood what he was saying.’
In that case, as in the instant case, the defendant gave detailed statements as to times and places to the police.”
In Mundell v. State, 244 Md. 91, 223 A. 2d 184, it was said at 93 [185]:
“The test in this case is not, as the defendant claims, whether he was frightened, hysterical, depressed and had been drinking, but whether his [29]*29disclosures to the police were freely and voluntarily made at a time when he knew and understood what he was saying. See Wiggins v. State, 235 Md. 97,200 A. 2d 683 (1964), cert. den. 379 U. S. 861 (1964). Also see Bryant v. State, 229 Md. 531, 185 A. 2d 190 (1962). Not only was the defendant advised of his right to remain silent and to see a lawyer and warned that any statement he made could be used against him, but the record is clear that he was rational and coherent during the time the statement was taken. In addition to this, it is apparent from the record that he made the statement freely and voluntarily and that no force, threats or promises were made to induce him to make it.”
To the same effect is Hopkins v. State, 19 Md. App. 414, 423, 311 A. 2d 483, 488.
Careful examination of the evidence presented by appellant and his wife shows that it fails utterly to show that the statement admitted in evidence was induced or occasioned by the intoxication of the accused.
Sufficiency of the Evidence
There was testimony that the rear door of the Lantern Inn in Cambridge, Dorchester County, Maryland had been broken on November 10, 1973, the premises had been entered and cash in the amount of $100.00, four cases of Pabst beer and other property had been taken. There was testimony also that the door had been locked at 2 a.m. on that day and that the proprietor and the appellant were the last persons to leave the premises.
This evidence, taken with the confession of the accused, was legally sufficient for conviction of the accused of the offenses charged. Bazzell v. State, 6 Md. App. 194, 199, 250 A. 2d 674, 677.
Judgments affirmed.