delivered the opinion of the Court.
The appellant was found not guilty of murder but guilty of manslaughter under an indictment charging him with murder by *195 a jury in the Circuit Court for Prince George’s County. He was sentenced to imprisonment for a term of four years.
The questions presented on appeal from the judgment are herein considered in the order in which they were argued before this Court.
I
“Was the defendant denied a fair and impartial trial when, the trial judge in his admonition to the jury affirmatively advised that throughout the trial they could talk about the case as long as they were alone among themselves or in the jury roomf”
Trial commenced on 21 July 1967, resumed on 24 July and 25 July and concluded on 26 July. The jury separated during each trial day for lunch and at the end of each day of trial. The trial judge admonished the jury immediately before each separation, seven times in all. After the first admonition, given before the luncheon recess of court on the first day of trial, the-record shows the following colloquy between the court and counsel for the appellant, out of the presence of the jury:
“MR. FREEMAN: * * * I detected in the instruction to the jury about discussing the case that they should not discuss it among themselevs anywhere except in the jury room. I would request, if the Court please, an instruction that until the case is terminated that they should not even discuss it there.
THE COURT: Well, they have a right to discuss it. They don’t have a right to take it up on the basis of determining the case itself, but they certainly have got a right — You have got to 1 be practical about it. They are going to discuss it during a recess. But the thing that you are aiming at and we always instruct them not to take the case up, not to take a vote and not to. make any final determination. This is true of any case. But to tell them that they can’t talk about it in there is not realistic. They are going to. You are not going to stop it. But the only purpose in telling them that, the intention of telling them that, is not to make any conclusion on the case, not to take any vote and not *196 make up their minds. But you can’t deny them the right of discussing the case.
MR. FREEMAN: Well, I have made my request and I suppose it has been denied.
THE COURT: Well, we are telling you what we do ■and what the usual meaning of it is, which I don’t think you are familiar with, and that is why we are doing it, to enlighten you.
MR. FREEMAN: Thank you.”
We think it a fair construction of the admonitions given by the trial judge that the admonitions conveyed to the jurors that they could discuss the case among themselves before its final submission to them when they were together in the jury room as the •appellant’s counsel alleged. The appellant does not claim that the cautions given by the trial judge with regard to the conduct •of the jurors while separated were insufficient or improper.
1
But he urges that before the case is finally submitted to the jury, "they may not properly discuss it among themselves whether or 'not they are separated and therefore, the trial judge committed prejudicial error. There is no statute or rule in this jurisdiction requiring the trial judge to admonish the jury that they are 'not to discuss the case in the jury room before its final submis-sion to them.
2
Nor are we aware of a case which compels us to
*197
so hold. “It is, however, our established practice that an admonition be given by the trial court to members of the jury,
prior to separation,
against discussing the case with others or among themselves.” (emphasis added).
Midgett v. State,
It may be the better practice, in order to preclude any possibility of misconduct (insofar as admonition can do so) that every jury be admonished not to discuss the case among themselves, even when in the jury room, until it is finally submitted to them. 7 But having found that it is not required, constitution *201 ally or by statute, rule or decision, we cannot find prejudicial error in the trial judge’s admonitions under the facts and circumstances of the instant case.
II
“Did the trial court abuse its discretion in refusing to grant a request for a bill of particulars setting forth the facts which the State contended showed premeditation or malice on the part of the defendant or which showed the acts which the defendant allegedly committed?”
Prior to trial the appellant filed a motion for a bill of particulars which included a request for all facts which the State contended showed premeditation, malice and “the specific act or acts which the defendant is alleged to have performed which resulted in the death of the decedent,” In its answer to the motion the State asserted that the appellant had been furnished with particulars through oral disclosure and extended discussion between his counsel and the Assistant State’s Attorney and the answer contained a summary of the events related to the charge, additional to that given orally. Other than to the extent disclosed, the State excepted to the demand for facts showing premeditation, malice and the specific acts performed by the appellant. At a hearing on the motion the trial court refused to require the State to furnish more particulars. 8 The appellant concedes that, as he was convicted of manslaughter, the denial of the request with regard to facts showing premeditation and malice is moot. He urges, however, that the denial with regard to facts of specific acts alleged to have been performed by him, specifically as shown by the testimony of Alvin Phillip Luckel, whom he designates as a key witness for the State, was error. He complains that the testimony of the witness at the trial as to the specific acts included “continual kicking (by the appellant of the deceased), despite pleas to stop, which quite differ *202 from what he testified to at the preliminary hearing.” He asserts that he was therefore “surprised upon receipt of that evidence at the trial.” The testimony of Luckel at the trial, to which the appellant refers, was that Luckel said that he noticed the appellant kicking the deceased and when Luckel told him, “For God’s sake, quit kicking the guy,” the appellant did not reply. “He just kept kicking him.” There was no objection to this testimony. We do not have the transcript of the proceedings at the preliminary hearing before us but at the hearing on the motions filed by the appellant, his counsel quoted Luckel as saying at the preliminary hearing that “* * * it appeared to me that he (the appellant) was kicking him (the deceased).” In his argument at the hearing on the motions counsel characterized this testimony as Luckel saying he saw the appellant “* * * kicking away at the guard (the deceased).” Further, in the answer to the motion for particulars, the State set forth that Luckel was struck “one' time” by the deceased, “next remembering the Defendant striking and kicking the deceased.”
Maryland Rules of Procedure, 715 a provides that the court may order the filing of a bill of particulars. But a defendant is not entitled thereto as of right. The grant or refusal of particulars is within the sound discretion of the trial court and this Court will not reverse a denial of particulars unless there has been a gross abuse of discretion resulting in injury to the accused. Pea
rlman v. State,
Ill
“Did the court below err when it refused to permit the appellant to express his state of mind, his intent, at the time that he allegedly committed the acts comprising■ a specific intent crime?”
The appellant was charged with the murder of a security *203 guard whose duties included a check of the premises of an apartment complex. The appellant and Luckel had been in one of the apartments and when they left they went to Luckel’s car which had been left on the apartment parking lot. The appellant got in the car. The deceased drove up and accosted Luckel. The appellant testified that he heard Luckel holler, “Bob, Bob come here quick.” The appellant heard “scuffling,” got out of the car and saw Luckel standing by the fender oí a car and the guard “had his hands poised as if he were going to strike.” Defense counsel asked the appellant, “Now, what was your intent when you approached the scene there.” Objection to the question was sustained. The appellant then testified that he approached the guard, that the guard kicked him and came toward him and the appellant “started swinging.” He was asked by defense counsel “* * * the reasons why you started swinging” and he replied, “I was afraid that this nut was going to kick my brains out. That’s just my feelings at that time.” Later during his testimony the appellant said that he went to the office of his counsel and made a statement “as to how he was involved in this crime.” At this time he did not know that a warrant had been issued for his arrest or that the police were looking for him. He then went with his counsel “to report in to the authorities.” The appellant was asked by his counsel whether he had any intention of “not reporting” in to the authorities. The State objected, the appellant answered “No” and then the court said, “Sustained.” There was no motion to strike the answer. Defense counsel then asked the appellant what his “intentions were with respect to reporting in to the authorities” and objection to the question was sustained. The appellant contends that these rulings of the court were reversible error.
An accused is competent to testify as to his intent or state of mind.
Davis v. State,
There is no merit in the appellant’s contention that he was not permitted to testify as to his intention to report the incident to the authorities. His answer that he had no intention of not reporting it was before the jury despite the ruling of the court, and, in any event, the matter of his intent in this regard was not material and relevant to the issue of his guilt or innocence of the crime charged. Further, he suffered no prejudice by the ruling of the court, for what he in fact did with respect to reporting “in to the authorities” was presented to the jury by him.
IV
“Where the trial judge instructed the jury as to- second degree murder, manslaughter, and justifiable homicide, was the appellant also 1 entitled to an instruction covering a finding‘ of not guilty based upon the death being ccmsed by another, where there was evidence of the death being caused by anotherf”
After the charge to the jury defense counsel said, out of the presence of the jury:
“It occurred to me while the instructions were being given that the only advisory instructions on not guilty dealt with justifiable homicide. I believe that the defendant is entitled to an instruction simply that if the jury finds, or if the jury is not convinced beyond a reasonable doubt that the defendant was the one that ■caused the death, then they should find him not guilty *205 because there is evidence in the case that someone else may have done it.”
At the close of all the evidence the lower court granted a motion for judgment of acquittal as to murder in the first degree. In its instructions the court made clear to the jury that the possible verdicts were guilty of murder in the second degree; not guilty of murder, guilty of manslaughter; not guilty. It thoroughly explained the presumption of innocence; the burden of the State to prove the appellant guilty beyond a reasonable doubt and to a moral certainty; that the appellant was entitled to every inference in his favor which could be drawn from the evidence;. that where two inferences could be drawn from the same set of facts, one consistent with guilt and one consistent with innocence, the appellant was entitled to the inference consistent with innocence; that the fact of indictment was not evidence of guilt. It reviewed the law as to second degree murder, manslaughter, justifiable and excusable homicide. In explaining manslaughter the court said, “If you are convinced from the evidence that the death resulted from merely unlawful conduct on the part of the defendant and there was no intention to take a life, then in that case, the defendant would be guilty of manslaughter.” (emphasis added). We think the instructions made it abundantly clear to the jury that their verdict must be not guilty if they did not find beyond a reasonable doubt that the appellant was, the one that caused the death of the deceased and we find no, error in the refusal of the court to grant the specific instruction requested. 9
*206 V
"Was there a failure of due process of law when the lower court was precluded from considering the testimony before the grand jury by a failure to have that testimony recorded?”
VI
“Should the indictment which was returned have been one of imanslaughter only?”
These questions are presented by the appellant in contending that the lower court erred in denying a motion to dismiss the indictment. He contends that by the testimony presented at the preliminary hearing, the evidence before the grand jury could not have been sufficient to warrant the return of an indictment for murder but only for manslaughter. He urges that the public local law of Prince George’s County requires that when a clerk to the grand jury is appointed it is mandatory that he record the testimony before that body. He complains that the testimony leading to his indictment was not recorded and thus the lower court was precluded from examining it to ascertain if the testimony was sufficient to warrant the indictment. He asserts that he was therefore denied due process of law.
It is the well settled rule that the competency of testimony before the grand jury will not be inquired into by the courts and is no ground to dismiss an indictment.
Pick v. State,
“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”
See also
United States v. Blue,
In view of our holding we need not consider the other allegations raised by the appellant with respect to these questions.
*208 VII
“Did the appellee’s affirmative representation to the jury that its key witness waived all immunity, when it knew that his testimony was providing him that immunity, prejudice the appellant’s case and thereby violate due process of law?”
In his brief the appellant refers to the testimony of Luckel offered by the State. Luckel said he was not served with a warrant and was not placed under arrest. He was then asked if he made any deals with anybody and counsel’s objection to that question was overruled. His answer was no. He was then asked, “Did anybody offer you any deals before you talked to them (the police) or while you were talking to them?” No objection was made and the witness answered, “No, sir.” Later in his testimony he was asked, “Subsequent to this time that you talked at Oxon Hill Station and up to this date, this time and this place, has anybody offered you any deals?” The witness answered, “No, sir,” without objection made. As part of his case the appellant introduced into evidence by stipulation a letter from Luckel’s attorney which stated that Luckel “was not and is not now charged with any crime.” We think that the substance of the challenged testimony came in without objection and that the point is not properly before us. Md. Rules, 1085. In any event, in view of the evidence offered by the appellant he was in no way prejudiced by the testimony of which he now complains. 11
Judgment affirmed.
Notes
. The trial court may, in its discretion, permit jurors sworn "to try a criminal action to separate at any time before the submission of the case to the jury. Md. Code (1968 Repl. Vol.), Art. -51, § 29;
Graef v. State,
. Code, Art. 51, § 29 does not require an admonition even upon separation of the jury. In a number of other states, upon adjournment, admonitions by the court to the jury are required by statute. The content of the admonition as provided by the various statutes is substantially the same — it is the duty of the jury not to converse -among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon until the -cause is finally submitted to them. But the statutes are not uniform
*197
as to whether the admonitions must be given on any adjournment or only when the jury is separated. In California (Cal. Penal Code, § 1132), Oklahoma (Okla. St. [1961], § 854), and Nevada (Nev. Rev. St. [1963], § 175.325), for example, the jury must be admonished “whether permitted to separate or kept in charge of officers.” In Kansas (Kan. St. Ann. [1964], § 62-1446: See
State v. Bussey,
58 K. 679, 688,
We are not aware of a statute requiring that the jury be admonished on adjournment in federal trials. However, Mathes and Devitt, Pederal Jury Practice and Instructions (1965) ch. 3, § 3.02, p. 23, states:
“The jury should be admonished not to converse or communicate among themselves or with others upon any subject touching the merits of the case and not to form or express any opinion on the case until it has been finally submitted to them.”
United States v. Viale,
“It has never been the law of this circuit that the trial judge must admonish the jurors not to discuss the case among themselves, although it has been the practice of most of the judges to suggest that it is advisable to refrain from such discussion until the case is concluded.”
. The purpose of
voir dire
examination is to ascertain the existence of cause for disqualification.
Borman v. State,
. A usual form of the oath administered to the jurors by a clerk of the court is substantially as follows:
“Members of the Jury, you and each of you do solemnly promise and declare that you will well and truly try the issues joined between the State of Maryland, and --- — •, defendant, and a true verdict give according to the evidence.”
. Contained in the admonition before luncheon recess on 31 July.
. Contained in the admonition at the end of the trial day on 31 July. The jury was cautioned not to discuss the case among themselves or with anyone else while separated at each subsequent adjournment of court. The advisory instructions of the trial judge to the jury at the conclusion of all the evidence included that the jury *200 was to determine for themselves the weight of the evidence and the credit to be given the testimony of the various witnesses, that the appellant must be proved guilty beyond a reasonable doubt on evidence which “must be presented in court” and that in considering the verdict the jury “must look for an answer only to the evidence received in this trial.”
. This does not appear to be the general practice in Maryland, although, as noted, it is the established practice to admonish the jury upon separation not to discuss the case among themselves. We understand that a Handbook for Jurors is given to jurors serving in the Courts of Baltimore City. It includes the following: “Jurors must not discuss the case with others or read about it in the newspapers or listen to broadcasts about it until after the trial is ended and the verdict returned. Their decision must be controlled by the evidence in the case and by nothing else. If an outsider tries to talk with a juror about a case on which he is sitting and while it is pending, the juror should refuse to listen. He should tell that person it is improper for him to discuss the case or receive any information except in the courtroom * * * Jurors should be careful while the *201 case is on trial not to communicate on any subject with any lawyer or witness in the case.” This is in accordance with the main objectives of the usual admonitions given prior to separation.
. The appellant also filed a motion for discovery and inspection which was answered by the State. Although the sufficiency of the compliance with the motion was argued at a hearing thereon, this question is not presented on appeal.
. The State argues that there was no sufficient evidence that the death was caused by someone else so as to warrant the requested instruction. On direct examination Luckel testified that he was struck and knocked down by the deceased. He said that there was a possibility that he could have “scuffled” with the deceased after being punched by him but that he did not know it as a fact. On cross-examination he denied that he had “scraped and swollen knuckles on his right hand” when he appeared at the preliminary hearing and there was no evidence that he had such an injury. He denied jumping on the deceased or hitting him after he got up from being knocked down by the deceased and he did not know if he “hit him at all.” On re-direct he denied that he did “at anytime join in kicking or beating the deceased.” The appellant testified that after his *206 •encounter with the guard he went to the guard’s car to tear out the radio so the guard could not call for help and heard “scuffling” and saw 5 or 6 inches of Luckel’s back. “It was moving in a rotating motion. I don’t know how to describe it, but it was moving like he "was maybe throwing punches or something.” He could not see Luckel’s hands or the guard’s body but he heard somebody moan. The physician who performed the autopsy testified that the body •of the deceased had multiple abrasions on both knees and on the face and chin. The upper and lower eye lids were blue and swollen. 'There were multiple skin abrasions on the right hand over the "knuckles. Internal examination of the head showed bruising or hemorrhage of each temporal muscle. Five ribs on the left side were fractured with “subplural hemorrhage” present. The actual cause of ■death was that the deceased vomitted while unconscious and died of aspiration.
. We distinguish the rulings in the line of cases represented by
Dennis v. United States,
. We note that absent a statute compelling a witness to testify and granting immunity if so compelled, if he wants the privilege against self-incrimination he must claim it. Neither the State nor the federal constitutional provision precludes a witness from testifying, voluntarily, to matters which may incriminate him. State v. Panagoulis, 3 Md. App. 330, 338, note 7. Thus Luckel did not obtain immunity by testifying at the trial without claiming the privilege. He stated that he did not testify before the grand jury.