delivered the opinion of the Court.
Aрpellant, Louis J. Martelly, was sentenced to imprisonment after being convicted by a jury in the Circuit Court for Montgomery County under an indictment charging him with having possessed and had under his control a narcotic drug. On this appeal he contends that the trial court was in error in denying his motion to suppress certain evidence оn the ground that it was produced by an unlawful search and seizure, and that in *343 any event the trial court should have granted his motion for a judgment of acquittal because, he says, the evidence was insufficient to support the jury’s verdict of guilty.
The evidence is substantially undisputed. On April 7, 1961, several police officers entered appellant’s barber shop and placed him under arrest. They had in their possession a warrant for his arrest, issued on the preceding day, charging him with a petit larceny committed in a department store some weeks earlier. After advising appellant that he was under arrest, one of the officers, following what he said was normal procedure upon an arrest, searched appellant’s person for weapons, and removed from his shirt pocket a plastic bottle containing 22 tablets which appellant admitted were dolophine, a narcotic drug. There were two prescription labels, from different drug stores, pasted on the bottle. Upon being informed by one of the officers that he was known to be a user of narcotics as the result of an extensive surveillance of his shop, appellant went to the rear of the shop, removed a box containing a syringe and a hypodermic needle from behind the toilet, and handed it to the officers. A further search by the officers, made with appellant’s consent, produced another hypodermic needle and an eyedropper from the top of a mirror and a number of empty bottles bearing dolophine prescription labels from behind the mirror. The оfficers had no search warrant.
Prior to trial of the case appellant filed a motion pursuant to Maryland Rule 725 to suppress the evidence taken from his person and shop at the time of his arrest, which was denied. At the trial, however, the same evidence was admitted under the following circumstances. Whеn the Assistant State’s Attorney offered in evidence the plastic bottle taken from appellant’s person, the hypodermic needle and syringe, and the envelope containing these items, appellant’s counsel (who is not counsel on this appeal) said, “No objection”. Thereupon, the narcotic tablets which had been contained within the plastic bottle, and the eyedropper with hypodermic needle, were offered in evidence without objection. Later, the two prescriptions corresponding to the two labels on the plastic bottle were offered, and defense counsеl again said, “No objection”. Finally, when the empty prescription bottles removed from be *344 hind the mirror in the barber shop were offered in evidence, the court asked defense counsel whether he had any objection, to which the latter replied, “No objection, Your Honor”.
In addition to the items thus admitted intо evidence, the State produced a chemist who testified that his analysis showed that the contents of the bottle found in appellant’s shirt pocket were tablets each containing seven and one-half milligrams of dolophine, although the two labels on the bottle and the underlying prescriptions each сalled for dolophine tablets of ten milligram strength. The druggists who filled the prescriptions were not called. Although appellant did not take the stand, he introduced a deposition given by his physician in the presence of the State’s Attorney and defense counsel in which the physician stated that he had treated аppellant for a kidney infection for more than a year and had given him prescriptions for dolophine at the rate of approximately one prescription per week, but that the last was written for appellant in March, 1961, although the specific day was not mentioned.
In the motion to suppress evidence appellant claimed that the evidence was the fruit of an unlawful search and seizure because it was not obtained under a search warrant or as incident to a lawful arrest, and hence was inadmissible. He makes the same contention on this appeal. The fact that the poliсe officers had no search warrant is not disputed. As to the arrest, appellant asserts its illegality (and consequent ineffectiveness to support the search and seizure) on the ground that the arrest warrant, charging him with the theft of an item from a department store, was merely a colorable device by whiсh the police sought to gain entry to his premises and malee a search in an effort to obtain evidence with which they could charge him with a violation of the narcotics law. This claim is based on the fact that the police admitted that appellant had been under observation for more than a mоnth as a suspected violator of the narcotics law, and yet no search warrant had been issued. In addition, appellant claims that the item which he is alleged to have stolen had already been recovered from another person. (It may be noted, however, that the affidavit made by the department store representative in applying for the arrest warrant against appellant identified the latter as a person who
*345
was accompanying the alleged shoplifter at the time of the alleged theft.) Appellant cites
Riley v. State,
The State maintains, on the other hand, that the arrest warrant was bona fide and valid; that the seizure of the bоttle of dolophine tablets from appellant’s shirt pocket was incident to a lawful arrest, so that no search warrant was required for that item; and that the other items placed in evidence were not taken as the result of a search and seizure because they were obtained with the express сonsent of appellant. The principal contention of the State, however, is that the admissibility of the disputed evidence is not properly before this Court, not only because appellant failed to object to its admission at the trial, but, more importantly, because he stated affirmatively that he did nоt object. This definite acquiescence to the admission of the evidence, the State says, operated as a waiver which precludes raising the point on this appeal.
We think the State’s position as to waiver is sound. This is not a case where an accused simply failed to object to allegedly inadmissible evidence, but is one where counsel for the accused specifically stated, repeatedly, that he had no objection to its introduction. At the trial, the defense was predicated upon the theory that the narcotic drug had been prescribed by a doctor and that the accused wаs in possession of it lawfully, and apparently for that reason defense counsel assented to the introduction of the now disputed evidence. This, plainly, was a trial tactic which we will not review.
Woodell v. State,
*346
At argument before us appellant maintained that the motion which he filed to suppress the evidence before trial of itself preserved the issue of the аdmissibility of the evidence at the subsequent trial and on this appeal. Apparently the theory is that under Maryland Rule 725 b the motion raised a defense capable of determination before trial (see
Rizzo v. State,
At least two important distinctions between the
Asner
case and the instant one are apparent. In
Asner,
the defendant’s objection to the evidence was definitely сalled to the court’s attention at the trial (although not reiterated) ; and, in that case, there was no explicit acquiescence, as in the case before us, to the introduction of the evidence. Apparently, the decision in
Asner
was predicated on the fact that if objection had not been made
at the trial,
the result would have been otherwise, although the Court did not find it necessary to decide the pre
*347
eise point, as we do not here. For cases from other jurisdictions involving the necessity,
vel non,
of objecting at trial to the admission of evidence which had been the subject of a denied pre-trial motion to supрress, quash, etc., see Anno.
As might be expected, cases involving an express waiver at trial following a denial of a pre-trial motion to exclude evidence are meagre. The case of
Lawn v. United States,
We hold that appellant’s express waiver of objection tо the admission of the evidence now in question was tantamount to a withdrawal of his previous motion to suppress, and that consequently the issue of admissibility is not now before us.
*348
To hold otherwise would be to say that a defendant could not change his mind and affirmatively consent to the admission of the evidence at trial. It is sеttled law that when an accused is present in court and represented by competent counsel, he is bound by the actions and concessions of counsel, and that even constitutional rights may be waived in the course of a trial.
Canter v. State,
Appellant’s other contеntion is that the State did not produce sufficient evidence to support the jury’s verdict of guilty. Appellant conceded that he had a narcotic drug in his possession at the time of his arrest. Code (1957), Art. 27, Sec. 277, provides that it is a crime to possess such drugs, “except as authorized in this subtitle.” The only possible exception available to appellant in the statute is that contained in Sec. 289, permitting possession of a drug prescribed by a physician if it is in the container in which it was delivered to the possessor by the person selling or dispensing it. However, we think the jury had before it sufficient evidence from which it could reasonably infеr that appellant did not come within this exception.
The plastic bottle taken from appellant’s person contained two labels referring to prescriptions for dolophine tablets of 10 milligram strength. These prescriptions were signed by his doctor and presumably were among those which the physiciаn said he gave to appellant for a kidney infection. However, the testimony of the chemist who analyzed the tablets found in the bottle showed that they were of 7½ milligram strength, thus not corresponding to either prescription. Although appellant argued that it would be possible to attribute the discrepancy to mistаke or deliberate “short-changing” on the part of the druggist, the weight of, and the inferences to be drawn from the discrepancy were matters for the jury to determine, and we cannot say that *349 Its obvious conclusion that appellant had placed illegally obtained tablets in the bottle was not justified. There was аlso the testimony of the doctor, who stated that he last prescribed dolopliine for appellant in March, 1961, the month preceding the arrest. This testimony, when considered in connection with the doctor’s statement that appellant needed a prescription each week during the period from 1959 to March 1961, while appellant was under his treatment, and with appellant’s own admission that he was addicted to, and a constant user of the drug, would appear to render highly improbable an inference that he would have 22 tablets of his prescription left at least a week after it was given (assuming that the March 1961 рrescription referred to, but not elaborated on, was issued at the end of the month—this being most favorable to appellant).
Since this case was tried before a jury, “To overturn the judgment in this Court for insufficiency of the evidence * * * it would be necessary to show that there was no legally sufficient evidence from which the jury could find * * * [the defendant] guilty beyond a reasonable doubt.”
Wright v. State,
Judgment affirmed, with costs.