1 of 19 DOCUMENTS 

DAILEY v. STATE 

No. 388, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 596; 212 A.2d 257; 1965 Md. LEXIS 586 

July 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Prendergast, J.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Confessions -- Oral -- Made During Detention After Illegal Arrest And After Confrontation With Illegally Seized Items Held Admissible Where Made Voluntarily And In Fact Not Induced By Confrontation With Seized Items.  This Court had previously reversed appellant's convictions of burglary and attempted burglary on the grounds that his arrest was unlawful and the subsequent search and seizures were unreasonable where the arresting officers were trespassers at the time, and illegally seized objects were put in evidence at the trial of those cases.  In the instant appeal from convictions of two different burglaries, the appellant contended that certain oral incriminatory admissions relating to the instant cases should not have been admitted into evidence because they were made while he was in custody after the illegal arrest and the admissions were induced by reason of the fact that appellant was confronted with the illegally obtained evidence. However, this Court has held in the past that the critical test of admissibility of a confession is whether it was in fact voluntarily [***2]  made; and a confession need not be excluded unless it appears that confrontation with the illegally seized evidence did in fact induce the confession. Here, the Court held that there was no error in the trial judge's factual findings that the admissions were voluntarily made (admissions made during the same period of detention had been held to have been voluntarily made in the earlier cases against appellant), and while seized items involved in the instant case were exhibited to appellant during part of his interrogation, his admissions were not in fact induced by confrontation with these items.  

SYLLABUS:

Joseph Dailey was convicted of two burglaries by the trial court, sitting without a jury, and from the judgments entered thereon, he appeals.  

COUNSEL:
George L. Russell, Jr., with whom was Richard K. Jacobsen on the brief, for appellant.
Julius A. Romano, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Stanley Cohen, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Horney, Sybert, Oppenheimer and Barnes, JJ.  Sybert,  [***3]  J., delivered the opinion of the Court.  

OPINIONBY:
SYBERT 

OPINION:

 [*597]   [**258]  On March 24, 1963, the appellant, Joseph Dailey, was arrested in connection with the burglary of the American Express Company office in Baltimore.  At the time of his arrest he made certain statements to the police and the police seized certain objects from his room.  After he was taken to Central police station, he admitted having committed several statutory burglaries and attempted burglaries. Thereafter the State obtained fifteen indictments against him.  Eleven of these were prosecuted to convictions in the Criminal Court of Baltimore.  The remaining four were stetted by the State apparently because the prosecuting witnesses were misnamed.  Dailey appealed the convictions under the eleven indictments to this Court.  We reversed three and affirmed the other eight convictions.  Dailey v. State, 234 Md. 325, 199 A. 2d 211, cert. den. 379 U.S. 975 (1964).
The State elected not to re-prosecute the appellant in the three cases reversed.  Instead, it obtained the re-indictment of Dailey 

 [*598]  in the four cases which had been stetted earlier.  These four cases were tried before Judge Prendergast [***4]  in the Criminal Court of Baltimore without a jury.  Judge Prendergast granted motions for judgments of acquittal in two of the cases for reasons not pertinent here, and found Dailey guilty in the other two, sentencing him to two consecutive five-year terms in the penitentiary, and Dailey appealed.  In the two cases now before us, the appellant was convicted of breaking the storehouse of Clark's Howard Street, Inc., and of breaking the warehouse of the Heart Association of Maryland, Inc.
On this appeal the appellant makes only one contention: that "the statements given by the appellant following the illegal search of his apartment and during a period of continuous illegal detention was 'tainted' by the illegal search and should not have been admitted into evidence." Since no question is raised in regard to the sufficiency of the evidence, we need not discuss the circumstances of the two breakings.
The circumstances of the arrest and the search and seizures are virtually undisputed.  The facts, where pertinent here, were recited as follows in Dailey v. State, supra (at p. 328 of 234 Md.):

"On March 23, 1963, at about 11 P.M. a burglar alarm installed in the premises of [***5]  the American Express Company at 213 North Charles Street was set off.  A special officer of the company that installed the alarm, together with officers of the Baltimore police force, went immediately to the premises and entered the front door. *** The police found a window broken in the rear.  One of the bars across the window had been sawed through.  *** Outside the window  [**259]  in an areaway, they found a man's coat in the pocket of which was a case containing two keys.  They also found a kit of tools * * *.
"The police concluded that the owner of the keys resided in a rooming house in the vicinity.  *** [T]he police proceeded diligently to try the large key in the outer doors of the various rooming houses and at about 12:30 A.M. found that it fitted the door of 115 

 [*599]  W. Mulberry Street, about two or three blocks from the scene of the crime.  They went to room 5 [one of the keys was stamped with that numeral] and knocked but received no answer.  They tried the key numbered 5 and it opened the door."
Inside the police found the appellant who (according to the police lieutenant who testified in the cases before us) asked, "How did you find me so fast?"  [***6]  The police then searched the appellant's apartment, with his consent they stated, and seized several objects.  The appellant and the goods were then taken to Central police station where he was interrogated a number of times in regard to many crimes.  During one of the periods of interrogation Dailey made certain oral incriminatory admissions relating to the cases now before us.  No tangible evidence had been seized in connection with the Heart Association case, but some had been seized in the Clark store case.  Certain merchandise was identified by the appellant during the time that the admissions were made as having come from Clark's store.  However, in the two instant cases, the State did not introduce any tangible evidence below and did not offer any written statement.  The oral admissions made by Dailey were admitted in evidence as part of the police lieutenant's testimony.  It is to the admission of this testimony that the appellant objects.  The trial judge found that the admissions had been freely and voluntarily made and allowed the police officer to testify.  The appellant elected not to testify in his own behalf for any purpose, and no defense witnesses were called.
We [***7]  need not discuss the arrest or the search and seizures since we held in Dailey v. State, supra, that the arrest was unlawful and that the subsequent search and seizures were unreasonable because the arresting officers were trespassers at the time.  For this reason we reversed those cases in which illegally seized objects were put in evidence at the trial.  Therefore, the only question before us is whether the admissions made after the unlawful arrest and the illegal searches and seizures were rendered inadmissible.
The appellant urges that his admissions were inadmissible as a matter of law because they were made while he was in custody 

 [*600]  after an illegal arrest, under the doctrine of Wong Sun v. United States, 371 U.S. 471 (1963), and on the ground that the admissions were induced by reason of the fact that appellant was confronted with illegally obtained evidence, under the doctrine of Fahy v. Connecticut, 375 U.S. 85 (1963). However, we have held a number of times that Wong Sun does not control prosecutions in State courts, and that the rule of the Supreme Court, as well as that of Maryland, is that the critical test of admissibility of a confession is [***8]  whether it was in fact voluntarily made.  McChan v. State, 238 Md. 149, 207 A. 2d 632 (1965); Mefford and Blackburn v. State, 235 Md. 497, 201 A. 2d 824 (1964); Prescoe v. State, 231 Md. 486, 191 A. 2d 226 (1963); and see Culombe v. Connecticut, 367 U.S. 568 (1961). And we pointed out in McChan v. State, supra, that Fahy v. Connecticut does not require the exclusion of a confession unless it appears that the accused was shown the illegally seized evidence and that such confrontation did in fact induce the confession.
While it appears from the evidence that the seized items involved in the Clark case were exhibited to appellant during part of his interrogation, Judge Prendergast found that appellant's admissions  [**260]  of guilt in the Clark and Heart Association cases had not in fact been induced thereby, pointing out that appellant had volunteered his statements concerning the two cases when the police first mentioned them.  In the first Dailey case we held that admissions made by Dailey to crimes therein involved were admissible since they had been voluntarily made.  Those admissions were made during the same period of detention in which the admissions [***9]  here were made.  We think the first Dailey case controls the present case, as there is no basis for holding the trial judge clearly in error with respect to his factual findings.  Appellant would have us overrule such cases as Dailey and McChan, supra, but we see no reason to do so.
Judgments affirmed.  

2 of 19 DOCUMENTS 

PALLACE, et al. v. THE INTER CITY LAND COMPANY 

No. 377, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 549; 212 A.2d 262; 1965 Md. LEXIS 580 

July 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Two appeals in one record from the Circuit Court for Baltimore County; Menchine, J.  

DISPOSITION:
Order affirmed insofar as it affirms the decision of the Board of Appeals as to Parcel A, and reversed, insofar as it reverses the Board's decision as to Parcel B; case remanded for the passage of an order affirming the Board's decision as to both parcels; the appellee and cross-appellant to pay the costs in this Court and below.  

HEADNOTES:

Zoning -- Baltimore County -- Denial Of Reclassification Not Arbitrary Or Capricious -- Evidence Made Issue Of Changed Conditions Fairly Debatable And A Matter For Expertise Of Board Rather Than For Court To Determine.  Where an application for zoning reclassification was denied by the County Board of Appeals for Baltimore County, this Court held that the evidence made the question of reclassification fairly debatable and made it a matter for the experts comprising the Board, rather than for the court to consider and determine.  The two parcels of land which the applicant sought to have reclassified for residence apartments were located in an area that had been zoned for one and two family residences (R-6) under the original zoning of 1945.  Prior to [***2]  and since that date the applicant had developed the community, now known as Harford Park, with the building of 700 to 800 one-family homes, in accordance with the R-6 classification. Applicant argued that the presumption of the correctness of the original zoning had been eroded by time and the changes which had taken place.  The Court recognized that there had been some changes since the original classification, both within and beyond the large community of Harford Park.  However, there was ample ground for the Board to conclude that the changes in zoning classification which had been permitted within the Park were minimal in nature.  The testimony as to changes in the area had to be considered in light of the fact of the continued development of the Park by the applicant as a one-family residential community, the large number of one-family residences surrounding the two parcels involved, and the erection of individual homes by other builders contiguous to the Park.  The Board's opinion showed that it considered all the facts involved.  The Court held that on the facts the issue before the Board as to changed conditions was fairly debatable; and that its decision denying the reclassification [***3]  for residence apartments was supported by substantial evidence and was not arbitrary or capricious.
Zoning -- Baltimore County -- Application For Reclassification -- Applicant Did Not Meet Burden Of Showing Existing Zoning Classification Operated As Constitutional Confiscation -- There Were Uses Within Existing Classification For Which Property Was Reasonably Adapted.  In the instant case, the court below found that the applicant before the County Board of Appeals had met the heavy burden resting upon it of showing that the existing zoning classification, as applied to the property in question, operated as a constitutional confiscation of property.  While the judgment of the lower court on the evidence will not be set aside unless clearly erronous, the conclusions of law based upon the facts are reviewable by this Court.  Upon review, this Court found that the applicant here had not sustained the burden which the law imposes on it to show that the Board's action precluded it from using the parcel in question for any purpose for which it was reasonably adapted. The parcel was in an area zoned for one and two family residences, developed by the applicant into a community primarily [***4]  comprised of individual homes.  Applicant sought reclassification of the parcel for apartment residences.  The testimony offered by the applicant as to the physical problems involved in the use of the parcel was confined almost entirely to the building of individual houses; no consideration was given to use of the property for group or semi-detached houses, and the developer testified that he personally disliked these types of houses.  However, this Court pointed out that it is not the developer's desires with respect to the use of his property which are controlling on the issue of whether or not there is an unconstitutional taking; the question is whether the property can be used for any reasonable purpose.  

SYLLABUS:

The Inter City Land Company, applicant, appealed from the County Board of Appeals' denial of an application for zoning reclassification of certain parcels of land.  James P. Pallace, Sr., et al., protestants, were granted leave to intervene in the Circuit Court.  From an order reversing the Board's action in denying reclassification as to Parcel B, and affirming the Board's denial of reclassification as to Parcel A, the protestants appeal and the applicant cross-appeals.  

COUNSEL:
 [***5]  
Edward F. Borgerding, with whom were Francis X. Borgerding and James P. Pallace, Sr., on the brief, for appellants.
Richard C. Murray, for appellee.  

JUDGES:
Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Oppenheimer, J., delivered the opinion of the Court.  Barnes, J., concurs in the result.  Concurring opinion at page 559 infra.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*552]   [**263]  The Inter City Land Company (the applicant) filed a petition before the Zoning Commissioner of Baltimore County, in November, 1961, for the reclassification of three parcels of land in a community known as Harford Park.  The area is governed by the original zoning of January, 1945, and each of the three parcels is presently zoned R-6 (residence 1 and 2-family).  The applicant sought to have the parcels rezoned to R-A zone (residence, apartments).  After a public hearing, the Zoning Commissioner denied the application for reclassification as to all three parcels. The applicant appealed to the County Board of Appeals (the Board).  At the hearing before the Board, the applicant deleted one of the parcels from its application, restricting the petition to the two lots referred to as Parcels [***6]  A and B.  After a public hearing at which the applicant, its witnesses and the protestants (the appellants and cross-appellees) were heard, the members of the Board, with the permission of the attorneys for both the applicant and the protestants, personally inspected the site.  In an opinion filed December 17, 1963 the Board unanimously found that the applicant had failed to prove that there has been sufficient change in the character of the neighborhood to warrant reclassification and that there was no testimony regarding error in the zoning map.  The petition for reclassification was denied as to both parcels. On appeal, in the Circuit Court for Baltimore County, Judge Menchine found that the questions as to whether changes occurring since the original zoning of 1945 and the nature of the topography were reasonably debatable and that there was no basis for reversal of the Board's decision on these grounds.  However, as to Parcel B, the judge found that the land involved was not susceptible of any reasonable use within its present zoning and that the existing zoning classification as to this parcel operates as a constitutional confiscation.  The judge affirmed the decision of the [***7]  Board as to Parcel A, and reversed the Board as to Parcel B with directions to reclassify that parcel from R-6 to R-A.  The applicant appealed from the affirmance of the Board's decision 

 [*553]  as to Parcel A.  The protestants appealed from the reversal of the Board's decision as to Parcel B.
Harford Park is a large development owned by the applicant, in the ninth election district of Baltimore County, close to the northern boundary line of the City of Baltimore, to the south of Taylor Avenue, east of Oakleigh Road and west of Old Harford Road.  The two parcels of land involved are located in the middle of this development.  Parcel A is a generally flat unimproved lot consisting of 14.43 acres, approximately 1500 feet in length and 700 feet at its widest point.  Parcel B consists of 1.03 acres; it lies slightly northeast of Parcel A, is 650 feet in length, with a maximum width of 155 feet.
The applicant owned the unimproved land, now known as Harford Park, for many years before 1945.  Prior to and since that date, the Park has been developed by the applicant with the building of from 700 to 800 one-family homes, in accordance with the R-6 residential classification. Adjacent [***8]   [**264]  land has been improved with individual homes by two other builders.
Four exceptions to the original zoning have been granted in the Park.  In April, 1946, a plot of ground of about 3 acres at the northern end of Parcel A and southeast of Parcel B was reclassified from A-residential to E-commercial for a proposed shopping center. The shopping center has not as yet been built but the plot has been developed by the applicant as a community membership swimming pool and recreation center with accessory parking.  In December, 1947, 3-1/2 acres, about one-half a mile from Parcel B, were reclassified from A-residential to E-commercial.  Although proposed for a shopping center, this land is still unimproved.  In April, 1948, a lot 100 feet by 120 feet was reclassified from the R-6 to the R-A zone, and in April, 1949, another small lot was similarly reclassified; a four unit apartment house has been built on each of these lots.  All four of these exceptions were granted on the petitions of the applicant.
Outside of Harford Park and on the other side of the applicant's commercial land to the southwest of Parcel A, an unimproved tract was reclassified to B-M (Business-Major) in [***9]  November, 1955.  An apartment structure known as Dutch Village, which has the external appearance of row homes, has been 

 [*554]  built in Baltimore City, approximately 1000 feet from the southwestern tip of Parcel A, and another apartment structure known as Wellington Gates has been erected in Baltimore City on the far side of Dutch Village over one-half a mile from Parcel A and about a mile from Parcel B.
Herring Run goes through the Harford Park community.  The channel of Herring Run was first approved by Baltimore City as a 40 foot storm drain channel but subsequently has been extended to a 100 foot flood reservation.  Contracts have recently been awarded for the construction of Perring Parkway through the Park.  The parkway will have a width of 180 feet. This highway almost touches Parcel B at one point and will be removed from Parcel A by only two or three lots.
The applicant contends, as to both Parcels A and B, that the action of the Board in denying the reclassification requested was arbitrary and capricious and that, as to Parcel B, the Board's action in denying the application was an unconstitutional taking of the applicant's property.
I
At the hearing before the [***10]  Board, the applicant produced as witnesses Mr. L. Allan Evans, a registered surveyor, who is the head of a surveying and engineering company; Mr. William Barnes Hall, the president of the applicant and an experienced builder; and Mr. Frederick P. Klaus, a qualified appraiser and real estate expert.
On the first issue here involved, Mr. Evans testified that he and his predecessor had been engaged in engineering work with the Harford Park development since 1946.  Parcel A, in his opinion, could be laid out physically into 45 lots of the R-6 size but it would be necessary to place almost 40,000 cubic yards of fill over the original ground level.  As the Board pointed out in its opinion, however, there was conflicting testimony as to the amount of fill needed, its cost, and, indeed, as to whether or not it could be procured without cost.  A substantial amount of the required fill, it was shown, was already in place.
Mr. Hall testified as to the changes in the area since the 1945 zoning. Mr. Klaus testified that the highest and best use of both Parcels A and B, under existing circumstances, would be for 

 [*555]  residential apartments. In his opinion, the erection of apartment houses [***11]  in the two parcels would create a good transitional zone between the two commercial properties and the development area in the residential zone. Other testimony of the applicant's witnesses referred to the relationship of the parcels to the Perring Parkway and the storm drainage channel with the ensuing difficulties  [**265]  of installing a street on Parcel A and the development of Parcel B.
We have repeatedly referred to the strong presumption of the correctness of original zoning. MacDonald v. County Board, 238 Md. 549, 559, 210 A. 2d 325 (1965) and cases therein cited.  To sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or of a substantial change in conditions.  Pahl v. County Bd. of Appeals, 237 Md. 294, 297, 206 A. 2d 245 (1965) and cases therein cited.  In this case, there is no contention of mistake.  Indubitably, there have been some changes since the original classification both within and beyond the large community of Harford Park.  However, there was ample ground for the Board to conclude that the changes in zoning classification which had been permitted upon the requests of the applicant within the Park [***12]  were minimal in nature.  The two small apartment houses, surrounded by one-family homes, may well have been considered comparatively insignificant changes; Mr. Hall admitted that between 200 and 300 individual homes had been erected in the Park since he built the last apartment house.  The swimming pool which has been erected on a plot rezoned as commercial may be regarded as a service to the existing large one-family residential community.  The other lot rezoned as commercial is proposed as a shopping center, a use which we have held is consistent with the needs of an existing residential area.  See MacDonald v. County Board, supra, at 557. The developments outside of Harford Park, the evidence shows, are not inconsistent with the continuation of the development of that community for one-family residences.  Some of the changes referred to by the applicant are a substantial distance away from the Park.  The applicant argues that the presumption of the correctness of the original zoning has been eroded by time and the changes which have taken place.  However, it is at least fairly 

 [*556]  arguable from the testimony and exhibits that the predominant development since the original [***13]  zoning has been the continued building by the applicant of hundreds of one-family residences in the Park itself.
As we have repeatedly emphasized, it is not for the courts to zone or rezone; the courts will not substitute their judgments for that of the expertise of the zoning officials.  DePaul v. Board, 237 Md. 221, 236, 205 A. 2d 805 (1965) and cases therein cited.
On a review of all the testimony and the exhibits, we can not say that the action of the Board in refusing to grant the applications because of changed conditions was arbitrary or capricious in any sense.  We agree with Judge Menchine that the question of whether the changes require the requested reclassification of the two parcels is reasonably debatable and that therefore the Board's decision on this issue must be affirmed.
The applicant cites Missouri Realty, Inc. v. Ramer, 216 Md. 422, 140 A. 2d 655 (1958) in support of its contention that the action of the Board in refusing to reclassify the parcels was unsupported by substantial evidence.  The property involved in that case was in the vicinity of Harford Park to the north of Taylor Avenue and to the east of Oakleigh Road.  The Zoning Commissioner determined [***14]  that the petition to change about 26 acres of land from the R-6 zone (cottage or semi-detached) to R-G zone (group housing) should be granted upon the grounds that the change of the character of the neighborhood since the original zoning warranted the reclassification. The Board of Zoning Appeals (now the Board of County Appeals) affirmed.  The Circuit Court for Baltimore County reversed the action upon the ground that there was not sufficient evidence of a change in the character of the neighborhood to support the Board's finding.  We held in that case, as we hold here, that the evidence made the question of reclassification fairly debatable and made it a matter for the experts comprising  [**266]  the Board, rather than for the court, to consider and determine.  The applicant also relies upon Mayor and Council v. Cotler, 230 Md. 335, 187 A. 2d 94 (1963) and Board v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761 (1963). In those cases we found there 

 [*557]  was no evidence to support the order of the zoning authority; in this case, while the protestants put on no expert testimony, the testimony of the witnesses produced by the appellant is to be considered in the light [***15]  of the facts of the continued development of Harford Park by the applicant as a one-family residential community, the large number of one-family residences surrounding the two parcels involved, and the erection of individual homes by other builders contiguous to the Park.  The Board's opinion shows that it considered all the facts involved.  Some physical facts are susceptible of varying interpretations.  For example, the construction of Perring Parkway may serve the existing one-family community of Harford Park, already consisting of 700 or 800 individual homes, quite apart from whether or not there will be apartment houses to increase its traffic.
We do not intimate that on the evidence the Board did not have the legal authority to grant the petitions for reclassifications, if it had deemed such action proper.  We hold only, as we have so often held before, that the facts in each case must be considered on their own bottom; that so considered, the issue before the Board as to changed conditions was fairly debatable; and that its decision was supported by substantial evidence and was not arbitrary or capricious.
II
Before the Board and in the court below, the applicant contended [***16]  that the Board's action constituted a taking of the applicant's property as to both parcels. Before us, the applicant confines its constitutional argument to Parcel B.
As to this parcel, Mr. Evans testified that the lot has grades of 1 1/2 to 1, or 2 to 1, and that cottage construction would require subfoundations in addition to normal cellars which would be economically unfeasible.  He also stated that it would be impossible to install individual driveways to provide access for cottages. Mr. Hall further described the problems inherent in the development of this parcel and stated that, in his opinion, cottages could not be built on them.  Mr. Klaus was of the opinion that it would not be economically feasible to develop this parcel within the R-6 zone.

 [*558]  In DePaul v. Board, supra, at 227-29, we referred to our decisions as to what amounts to an unconstitutional confiscation of property by the action of the zoning board.  If an owner affirmatively demonstrates that the zoning action deprives him of all reasonable beneficial use of his property, the action will be held unconstitutional, but the restriction upon the property imposed by the zoning action must be such [***17]  that the property can not be used for any purpose to which it is reasonably adapted.
On the same evidence which was before the Board, the court below found that the applicant had met the heavy burden resting upon it of showing that the existing zoning classification, as applied to Parcel B, operated as a constitutional confiscation of property.  The facts were undisputed; it is the correctness of the conclusion of law which the judge reached upon these facts which is before us.  While the judgment of a lower court on the evidence will not be set aside unless clearly erroneous, that phase of the rule is limited to the court's decision on the evidence.  Maryland Rule 886.  The conclusions of law based upon the facts are reviewable by this Court.  Space Aero v. Darling, 238 Md. 93, 106, 208 A. 2d 74 (1965).
 [**267]  The testimony of Mr. Hall and his builder as to the physical problems involved in the use of Parcel B was confined almost entirely to the building of individual houses.  Mr. Hall testified on cross-examination before the Board that he personally does not like group homes or semi-detached houses and had not given consideration to use of the property for these purposes.  [***18]  It is not the developer's desires with respect to the use of his property which are controlling on the issue of whether or not there is an unconstitutional taking; the question is whether the property can be used for any reasonable purpose.  See MacDonald v. County Board, supra, at 556-57.
Mr. Klaus was of the opinion that the cost of erecting individual homes within the existing zoning classification would be prohibitive; his testimony was not supported by specific figures and other evidence to show the costs which would be involved.  Unsupported claims of economic unfeasibility are not enough.  Pahl v. County Bd. of Appeals, supra, at 297, and DePaul v. Board, supra, at 227-28.
The individual driveways referred to by Mr. Evans may well 

 [*559]  be desirable but the testimony does not show they are essential for homes other than cottages permitted by the existing zoning.
We find that the applicant has not sustained the burden which the law imposes on it to show that the Board's action precludes it from using Parcel B for any purpose for which it is reasonably adapted.
Order affirmed insofar as it affirms the decision of the Board of Appeals as to Parcel A, and  [***19]   reversed, insofar as it reverses the Board's decision as to Parcel B; case remanded for the passage of an order affirming the Board's decision as to both parcels; the appellee and cross-appellant to pay the costs in this Court and below.  

CONCURBY:
BARNES 

CONCUR:

Barnes, J., filed the following concurring opinion.
I concur in the result reached by the Court.  It is, however, a reluctant concurrence as I would have granted the application of the property owner for the reclassification of Parcels A and B had I been acting as the Board.  But judicial opinion in regard to the weight of the evidence cannot be substituted for that of the Board in this essentially legislative determination if there is sufficient credible evidence before the Board to make the issues of fact "fairly debatable." If the issues are "fairly debatable" it cannot be held by the courts that the action of the Board is arbitrary, unreasonable or capricious. In my opinion this is the true test and not whether there has been a "mistake in original zoning" or "a substantial change in physical conditions in the neighborhood" as the exclusive test to determine the validity of the re-zoning of land by the Board or the [***20]  refusal of the Board to rezone.  I have heretofore rather fully given my views on the Maryland -- "mistake-change in physical conditions" -- Rule in my dissenting opinion in MacDonald v. County Board, 238 Md. 549, 576-601, 210 A. 2d 325, 340-354 (1965), and I adhere to those views.
As is pointed out in the Court's opinion, the Board might 

 [*560]  lawfully have granted the requested reclassification and such action could not have been successfully challenged in the courts.  The Board, however, declined to grant the requested reclassification and I cannot say from the evidence before it that a reasonable man could not have reached that conclusion even though, as I have indicated, I would have reached a different result.  These facts have been set out in the Court's opinion and need not be repeated here.
The question of whether the existing R-6 zoning is unconstitutional as applied to Parcel B is, in my opinion, a close one.  In presenting this issue to the Circuit Court on appeal from the Board the property owner had the burden of showing by the evidence that the property owner of the land in question  [**268]  is deprived of all reasonable beneficial use of his property [***21]  under the applicable existing zoning ordinance.  In the case at bar, I think the applicant did establish from the evidence that Parcel B may not be used for the erection and sale of individual homes.
I do not agree with the implication in the Court's opinion that an expert witness need necessarily give specific figures to show the costs involved, if he is qualified by his experience and background to testify to the ultimate conclusion of fact as was Mr. Klaus in this case.  Specific figures may be sought by cross-examination if the expert's conclusion is thought by the opposing party to be unsound, but in the absence of this, the conclusion of fact is prima facie correct.  In Frankel v. City of Baltimore, 223 Md. 97, 162 A. 2d 447 (1960), the expert witnesses for the property owner gave no specific cost figures in their testimony that under the applicable zoning regulations in that case the property owner would be deprived of all reasonable use of his property.  One witness, an experienced real estate expert and developer testified that it would be "economic suicide" to attempt to build the permitted buildings.  The trial court in Frankel, in affirming the Board, accepted [***22]  the testimony of an expert witness for the City of Baltimore who did give estimated cost figures and who testified that it was economically feasible to erect individual dwellings.  We reversed and held that the testimony of the experts for the property owner (who gave no specific cost figures) was confirmed by the uncontrovertible physical facts and held that the existing zoning regulations did 

 [*561]  deprive the property owner of all reasonable use of his property and resulted in an unconstitutional taking of his property without just compensation.  The lack of specific cost data may go to the weight of the expert's testimony.  But this is for the trier of facts to evaluate and Judge Menchine, in this case, apparently accepted and relied upon the testimony of Mr. Klaus.  Pahl v. County Board of Appeals, 237 Md. 294, and DePaul v. Board, 237 Md. 221 do not purport to overrule the Frankel case on this point and, in my opinion, the dicta in Pahl and DePaul referred to in the Court's opinion in the case at bar, are consistent with the position that the lack of cost data goes to the weight the trier of fact will give testimony of the expert, rather [***23]  than to its admissibility and prima facie correctness.
The burden, however, was upon the applicant to establish that Parcel B could not reasonably be used for any of the uses permitted in an R-6 zone. Among the permitted uses are semi-detached houses.  As the Court points out in its opinion, the testimony of both Mr. Hall and Mr. Evans was confined almost entirely to the erection of individual homes, and Mr. Hall indicated on cross-examination that consideration had not been given to the use of Parcel B for semi-detached houses.  The substance of the testimony of Mr. Klaus was also directed principally at the economic feasibility of erecting individual homes.  His attention was not directed to the possible erection of semi-detached houses on Parcel B.  In the light of this testimony and other testimony in the case, I concur in the Court's opinion that the applicant did not meet the burden of showing that it is deprived by the existing R-6 zoning regulations of all reasonable beneficial use of Parcel B, and that an unconstitutional taking of its property without just compensation has occurred.  

3 of 19 DOCUMENTS 

STOCKSDALE, et al. v. BARNARD, et ux.  

No. 373, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 541; 212 A.2d 282; 1965 Md. LEXIS 579 

July 29, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed August 27, 1965, Denied and Opinion Modified September 15, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court for Baltimore County; Menchine, J.  

DISPOSITION:
Order reversed and case remanded for the passage of an order reinstating the order of the Board.  The appellees to pay the costs in this Court and below.  

HEADNOTES:

Zoning -- Proper Parties On Appeal -- Association Was Not One Here.  In the instant zoning case it was held that one of the appellants, the Bridlewood Association, Inc., was not a proper party on appeal.  An appeal is not authorized by an association as a party aggrieved by reason of its members being aggrieved. However, the other two appellants who were individual adjoining property owners and taxpayers were held to have a sufficient interest and were entitled to appeal.
Zoning -- Demurrer Or Answer To Petition Of Appeal Allowed Here Even Though Not Within The Thirty Days -- No Prejudice Shown.  Although Maryland Rule B 9 states that a party to a proceeding before an administrative agency shall, within thirty days of the date of the filing of the petition of appeal, file a demurrer or an answer, it also provides that the time for demurring [***2]  or answering can be "such longer or shorter time as may be fixed by the court." Therefore, it was held that where no actual prejudice was either claimed or shown, the lower court did not abuse its discretion in allowing the protestants' petition to intervene and answer to the petition on appeal even though it was not filed within the thirty days.
Zoning -- Appeal To Circuit Court -- Scope Of Review -- Where Questions Before Board Were Fairly Debatable, Court Erred In Reversing Board's Findings.  On appeal from a split decision of the County Board of Appeals the Circuit Court can not make its own independent findings of fact, but must resolve whether the decision of the Board was or was not in accordance with law.  Thus, it must decide as if the appeal had been taken from a majority decision by the Board.  The Court can not substitute its own judgment for that of the Board if the question was fairly debatable. If there is room for reasonable debate as to whether the facts justified the Board in its decision, it must be upheld.  It is only where there is no room for reasonable debate, or where the record is devoid of supporting facts, that the Court is justified in declaring [***3]  the legislative action of the Board arbitrary or discriminatory. In the instant zoning case it was held that there was evidence before the Zoning Commissioner and the Board from which they reasonably could and did reach their conclusion to deny the rezoning application.  Therefore, the questions before them were at least fairly debatable and when the trial court reversed their decision, it actually substituted its judgment for that of the Commissioner and the Board, and in so doing, it exceeded the proper exercise of its powers.
Zoning -- Existence Of Apartment Uses On One Side Of Street Does Not Alter Use Of Land On Opposite Side -- Street Is An Appropriate Line Of Demarcation.  

SYLLABUS:

Petition for zoning reclassification by Francis H. Barnard and his wife.  From an order of the trial court reversing an order of the County Board of Appeals which denied the petition, Robert G. Stocksdale, and others, appeal.  

COUNSEL:
John G. Noppinger, with whom was C. Warren Colgan on the brief, for appellants.
Donald J. Gilmore and Eugene G. Ricks for appellees.  

JUDGES:
Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Marbury, J., delivered the opinion of the Court.  

OPINIONBY:
 [***4]  
MARBURY 

OPINION:

 [*543]   [**283]  Objecting neighbors, the protestants, appeal from an order of the Circuit Court for Baltimore County reversing an order of the County Board of Appeals and granting a petition of the appellees, the applicants, for the reclassification of certain property, which petition the Board had denied.  The reclassification had originally been disallowed by the Zoning Commissioner.  The Board by a one to one split decision, only two members having heard the case, affirmed the finding of the Zoning Commissioner.
The appellees filed a motion to dismiss the appeal, which was heard immediately prior to the argument on the merits.  The motion raises two contentions: (1) that none of the protestants has sufficient interest to maintain this appeal, and (2) that they were too late in intervening and answering the petition on appeal from the Board's order.
The first of these is based on the fact that the Bridlewood Association, Inc., one of the appellants, did not participate in the appeal from the Board, nor was it either an aggrieved party or a taxpayer.  There seems to be no question that the other protestants, Robert G. Stocksdale and Edward A. Cockey, 3rd,  [***5]  have a sufficient interest, since Stocksdale's residence adjoins  [**284]  the property in question, and Cockey resides next to Stocksdale.  The appellants argue that the Bridlewood Association, Inc., is a proper party on appeal because certain members own homes 

 [*544]  on the same street near the applicants' property.  We do not agree with this contention.  Under the ordinances of Baltimore County authorizing appeals by persons aggrieved, this Court has held that an appeal is not authorized by an association as a party aggrieved by reason of its members being aggrieved. Improvement Ass'n v. Raine, 220 Md. 213, 151 A. 2d 734, and cases therein cited.  The motion to dismiss the appeal of the Bridlewood Association, Inc., is therefore granted.  However, on the record, Stocksdale and Cockey are taxpayers and parties in the lower court, and are consequently entitled to appeal to this Court.  Windsor Hills Imp. Ass'n v. Balto. 195 Md. 383, 394, 73 A. 2d 531.
The second ground upon which dismissal is sought is that the protestants' petition to intervene and answer to the petition on appeal failed to set forth any cause for the failure to file them within thirty days, as provided [***6]  by Maryland Rule B9. The record indicates that the petition to intervene and answer were not filed by the appellants until September 8 and 9, respectively, 1964, which dates were nineteen and twenty days beyond the thirty day period provided by the Rules.  Appellees then filed a motion to strike and a motion ne recipiatur to the petition because of its late filing.  A hearing on these motions resulted in a denial of both of them, and the court below proceeded to a hearing of the case on its merits.  We think that the lower court had the power and right to rule as he did.
Although Rule B9 states that a party to the proceeding before the administrative agency shall, within thirty days of the date of the filing of the petition of appeal, file a demurrer or an answer, it also provides that the time for demurring or answering can be "such longer or shorter time as may be fixed by the Court." We said in Toomey v. Gomeringer, 235 Md. 456, 459-60, 201 A. 2d 842:
"Though ordinarily an answer should be filed within the thirty days, we think that Rule B9 is not inflexible and mandatory as to the thirty day period.  It is not shown that the applicants were prejudiced by the delay [***7]  from early June to early August in the filing of the answer, and the delay seems to have been due 

 [*545]  at least to some extent to delay on the part of the applicants in furnishing the protestants with a copy of the petition of appeal as had been promised.  *** We accordingly hold that the time requirement of Rule B9 is not mandatory, and we think that it was within Judge Turnbull's discretion to refuse to strike out the answer of the protestants, and we find nothing to indicate any abuse of discretion on his part in so refusing."

Cf. Irvine v. Montgomery County, 239 Md. 113, 210 A. 2d 359. The appellants Stocksdale and Cockey were protestants before the Board and the appellees and their counsel were fully aware of their identity, their opposition and the grounds for the opposition.  They also were aware that the appellants intended to continue their fight in the circuit court and knew the lawyers who would represent them there.  Counsel for both sides apparently met with Judge Menchine in regard to a hearing of the appeal which had been set tentatively for August 31 but which had to be postponed, and was, by agreement, put down for September 10.  The appellees [***8]  knew also that an answer was to be filed and the essence of what the answer would contain.  The answer was filed on September 9 and contained no surprises.  No actual prejudice to the appellees by reason of the late filing of the answer is either claimed or shown.
The words of Toomey, supra, are apposite and, as was said there, we think it was within the trial judge's discretion to refuse to strike the answer and we find  [**285]  nothing to indicate any abuse of discretion on his part in so refusing.  We deny the motion to dismiss insofar as it is based upon delay in the filing of the appellants' petition and answer in the Circuit Court.
We now proceed to the merits of this case.  The appellees filed with the Zoning Commissioner for Baltimore County an application for a reclassification of property owned by them from an R-6 to R-A zone, with a special exception for office use and a variance relating to setback.  The R-6 zone in Baltimore County is for one or two-family residential use, with an area of 6,000 square feet for a one-family dwelling and of 10,000 square feet for a two-family dwelling.  The R-A zone is for residential 

 [*546]  use as apartments. The basis for [***9]  the petition was set forth as substantial changes in the character of the neighborhood and an error in the original zoning map adopted for the 9th Election District of Baltimore County in 1955.  The evidence as to original error, if there was any, was not sufficient to require discussion by us.  The subject property is located at the northeast corner of York Road and Croftley Road in the community known as Bridlewood.  It is improved by a two-story house on a lot 150 feet in depth, and fronts some 70 feet on the east side of York Road, a four lane highway also known as Route 111.  The appellees purchased the property in 1956 and Dr. Barnard began the practice of dentistry, opening an office in the house in 1957, a permissive use provided he resides on the premises.  The entrance to the dental office is from Croftley Road.  The Baltimore County official zoning map indicates that the land on the north and south of this property, on the east side of York Road, is zoned R-6, with the exception of one small lot zoned R-A at the corner of Thornhill and York Roads.  Dr. Barnard filed his application because he wished to move his family, which had increased in recent years, to a larger home [***10]  but to retain the location of his office and convert the remainder of his house into apartment use.
After a public hearing the Zoning Commissioner denied the application request.  His order indicated:
"Visual inspection of the property reveals that the house owned by the petitioners is part and parcel of a very fine residential development which may be described as a thriving residential development and one which is extremely well kept.
"There is no reason to change the present residential classification because it is obvious that this particular portion of York Road is now being properly used for residential purposes.  The only break in classification on York Road is another residential use for doctors' offices, at the corner of York and Thornhill Roads, * * *.
"The reclassification granted at the corner of York and Thornhill Roads was dubious at best and the many 

 [*547]  restrictions imposed by the then Board of Appeals indicates a real danger that might be caused by this reclassification. In this case it was ordered that there shall be no parking on the subject property other than that permitted for an ordinary residence.  Such a restriction certainly implies that further [***11]  apartment zoning would be improper."

This decision was affirmed by the County Board of Appeals.  However, the Circuit Court for Baltimore County reversed the findings of the Zoning Commissioner and the Board.
The appellants in this appeal first argue that the lower court exceeded the limits of its scope of review. They maintain that since the Board split one to one in its decision, the case was before the Circuit Court on exactly the same footing as if the decision had been unanimous.  However, the appellees argue that the Court below has an unlimited review.  It has been clearly set out by this Court that on appeal from a split decision from the Board, the Circuit Court can not make its own independent  [**286]  findings of fact, but must resolve whether the decision of the Board is or is not in accordance with law.  Thus, it must decide as if the appeal had been taken from a majority decision by the Board.  The function of the reviewing court is limited and it may set aside as not in accordance with law an action of the Board which is arbitrary, illegal or discriminatory. It is not the function of the reviewing court to zone or rezone but only to decide whether the Board [***12]  properly applied the applicable law to the facts.  The Court can not substitute its own judgment for that of the Board if the question is fairly debatable. If there is room for reasonable debate as to whether the facts justify the Board in its decision, it must be upheld.  It is only where there is no room for reasonable debate, or where the record is devoid of supporting facts, that the Court is justified in declaring the legislative action of the Board arbitrary or discriminatory. DePaul v. Board, 237 Md. 221, 205 A. 2d 805; Levy v. Seven Slade, Inc., 234 Md. 145, 198 A. 2d 267; Missouri Realty, Inc. v. Ramer, 216 Md. 442, 140 A. 2d 655; Offutt v. Bd. of Zoning Appeals, 204 Md. 551, 105 A. 2d 219.
The Zoning Commissioner, as pointed out in his opinion 

 [*548]  above, after a visual inspection, found that the portion of York Road in question was a thriving residential development. One member of the Board accepted the advice and conclusions of the Zoning Commissioner and, in addition, in his opinion found that the granting of a special exception at this location would be creating undue concentration on a small residential lot and would also create parking and [***13]  traffic problems.  This resulted in the denial of the application even though the other member was of a contrary view.  At this point the function of the reviewing court was to decide whether the presumption of the correctness and constitutionality of the Board's quasi-legislative action had been overcome by the showing of the applicant that there was no reasonable basis in fact to support the denial as an exercise of the police power.  Levy v. Seven Slade, Inc., supra; Montgomery County v. Walker, 228 Md. 574, 180 A. 2d 865; M. & C. C. of Balto. v. Biermann, 187 Md. 514, 50 A. 2d 804.
The record shows that the subject property lies on York Road almost midway between Seminary Avenue on the south and Bellona Avenue on the north.  On the opposite side of York Road there have been some zoning applications granted for R-A classification. However, on the east side of York Road there have been no changes in the immediate neighborhood with the exception mentioned above at the corner of Thornhill Road.  Judge Menchine in his colorful opinion cited Levy v. Seven Slade, Inc., supra, and concluded that the Board had no reasonable basis in fact to support the denial, and reversed [***14]  the Board, thus allowing the applicants' petition for relief.  He based his decision on the fact that several zoning changes had been granted in the area.  But, an examination of the record shows that all except one of these changes in the immediate neighborhood were on the opposite, west side of York Road from applicants' property.  We have held in past cases that a street or road may be a natural boundary line between two zones. Sapero v. M. & C. C., 235 Md. 1, 200 A. 2d 74. In Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 192 A. 2d 502, we held that the existence of apartment uses on one side of the street does not alter the use of the land on the opposite side, and therefore the street is an appropriate line of demarcation.  Here, there was evidence before 

 [*549]  the Commissioner and the Board from which they reasonably could and did reach their conclusions.  We therefore think that the questions before them were at least fairly debatable and that the trial court actually substituted its judgment for that of the Commissioner and the Board, and that in so doing, it exceeded the proper exercise of its powers.
Having reached this result we need not consider appellants'  [***15]  final argument that there was no evidence to justify appellees' request for a variance or special exception.
 [**287]  For the reasons set forth above, the order of the Circuit Court must be reversed with directions to reinstate the order of the Board denying the reclassification, special exception and variance.
Order reversed and case remanded for the passage of an order reinstating the order of the Board.  The appellees to pay the costs in this Court and below.  

4 of 19 DOCUMENTS 

NICHOLAS v. STATE 

No. 382, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 569; 212 A.2d 291; 1965 Md. LEXIS 582 

July 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Harlan, J.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

False Pretenses -- State Has Burden To Prove That Defendant Made Representation Of Existing Fact Which Was False, As It Carries Burden To Prove All Other Elements Of Crime -- Whether Burden Was Met Depends Upon Facts And Circumstances Of Each Case -- Testimony In Present Non-Jury Case Was Legally Sufficient To Support Reasonable Inference By Trial Court That There Was No Whiskey For Sale At Address Where Defendant Allegedly Claimed Such Whiskey Was Located.
Larceny -- Non-Jury Case -- Trial Court Not Clearly Wrong In Not Believing Defendant's Testimony That Money Was Given To Him Voluntarily -- Other Testimony That Defendant Grabbed Money And Fled, Thus Supplying Necessary Elements Of Larceny.
Criminal Law -- Counsel Below, Claim Of Inadequate Representation By -- Claim First Asserted On Appeal Not Properly Before Court -- Contention That Court-Appointed Counsel Never Visited Defendant Before Trial And That Defendant Had No Opportunity To Tell Counsel About Girl Allegedly Involved -- Associate Of Counsel Did Visit Defendant Before Trial, And Thus Defendant Had Such Opportunity --  [***2]   Furthermore, Defendant Made No Complaint In This Respect To Trial Judge.  

SYLLABUS:

Horace Nicholas was convicted in a non-jury trial of obtaining money by false pretenses and of larceny, and from the judgments entered thereon, he appeals.  

COUNSEL:
Fred Kelly Grant for the appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Lucy Ann Garvey, Assistant State's Attorney, on the brief, for the appellee.  

JUDGES:
Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Sybert, J., delivered the opinion of the Court.  

OPINIONBY:
SYBERT 

OPINION:

 [*570]   [**292]  After a non-jury trial before Judge Harlan in the Criminal Court of Baltimore, the appellant, Horace Nicholas, was convicted of obtaining money by false pretenses under one indictment and of larceny under another and was sentenced to imprisonment.  This appeal followed.
According to the State's evidence in the false pretense case, appellant informed one Hemsley that he had some whiskey which he wished to sell, and Hemsley took him to the home of a friend, the complaining witness, Joseph Chalmers, Jr., who agreed to [***3]  buy three cases for $ 45.00.  Appellant told Chalmers the whiskey was located at a friend's home on Carey Street in Baltimore.  The three men drove there and appellant went to the door and returned to the car, stating that his friend was not at home.
The three men separated, but in a short time appellant returned to Chalmers' home and told him his friend was now at home.  On the way back to Carey Street a stop was made at a bar where Nicholas picked up a key explaining "if the fellow isn't home, I can get in." At Carey Street, appellant entered the house and returned a few minutes later stating "come on the whiskey is ready." At appellant's direction, Chalmers opened his car trunk.  As the two were entering the house appellant said "the lady wants her money" and that after payment he would bring the whiskey downstairs.  Chalmers gave $ 45.00 to appellant, who went upstairs with it.  When after five minutes appellant did not return, Chalmers went upstairs and knocked on the door but there was no answer.  Forty minutes later Chalmers and Hemsley found appellant in a bar where Chalmers demanded the return of the money but Nicholas said he was sorry, and that he did not have the money.  [***4]  Chalmers 

 [*571]  called the police and  [**293]  when he went outside to talk to them appellant fled through a rear door. The defense did not call any witnesses in the false pretense case.
The State produced evidence in the larceny case to show that on the evening of the day after the liquor episode appellant approached one Tousant Boisvert (the complaining witness), whom he did not know, in a bar and offered to sell him a color television for $ 150.00.  Boisvert borrowed the money from a friend, one Dyson, in the bar.  These three men and an unidentified girl then drove to an address in Baltimore where the TV set was said to be located.  Appellant knocked on the door but there was no answer.  A police officer walked by and told appellant and Boisvert that the house was empty.  Appellant then asked Boisvert whether he had brought the money.  Boisvert answered "yes" and exhibited the $ 150.00.  Then, according to Boisvert, appellant grabbed the money and fled. Boisvert chased him and they were both apprehended by a police officer. Boisvert was ultimately released and his money was returned to him.
Appellant took the stand and testified that on the night in question he was [***5]  drinking with a girl friend of Boisvert in a bar when he mentioned having some whiskey to sell.  The girl then brought over Boisvert who offered to buy several cases.  Boisvert, according to appellant, gave $ 150.00 to the girl to hold.  They then drove to the house where appellant asked for and received the money from the girl. Appellant stated that as he knocked on the door a passing police officer told him the house was vacant.  Then, according to appellant, when Boisvert asked for his money back and moved toward him, he ran away only to be apprehended by the police.  He admitted that he did not intend to return the money.  Boisvert was then called by the State in rebuttal and he testified that he did not know the girl, that she did not approach him, and that he did not give her the money.
Appellant's first contention on this appeal is that the State failed to prove an essential element of the crime of false pretenses, i.e., that he had made a representation of an existing fact which was false.  Precisely, he claims that the State did not prove there was not any whiskey at the Carey Street address.  

 [*572]  Unquestionably, the State had the burden to prove this element [***6]  as it had the burden to prove all elements of the crime, Davis v. State, 229 Md. 139, 182 A. 2d 49, cert. den. 83 S. Ct. 200 (1962), but it is also true that whether the State met the burden depends on the facts and circumstances of each case.  Smith v. State, 237 Md. 573, 207 A. 2d 493 (1965). We think the evidence was sufficient to warrant a finding of the essential element of false pretenses mentioned.  The testimony as to the elaborate "build up" by appellant, that there was no sign of whiskey in the house when the victim went inside, or of a "lady who wanted her money" for the whiskey, or of appellant, who had obviously decamped with the money, was, in our view, legally sufficient to support a reasonable inference by the trial court that there was no whiskey for sale at the Carey Street address.
Appellant next contends there was insufficient evidence to support a conviction in the larceny case.  We do not agree.  He argues that the money was given to him voluntarily by the girl to whom he said Boisvert had given the money earlier, and that therefore there was no "taking".  However, he ignores the testimony of Boisvert that appellant grabbed the money from him and fled,  [***7]  which supplied the necessary elements of larceny. Appellant himself testified that he did not intend to return the money and he admitted that he ran away from Boisvert.  It is obvious that the trial court did not believe appellant's testimony in regard to how he acquired the money and we cannot say that he was clearly wrong.  Cf. Wilkes v. State, 229 Md. 259, 182 A. 2d 488 (1962).
 [**294]  Finally, appellant asserts, for the first time on this appeal, that he was not adequately represented by counsel below.  Although this claim is not properly before us, we find it is not borne out by the record.  Appellant complains that his court appointed counsel never visited him in the Baltimore City jail before trial, that therefore appellant had no opportunity to tell counsel about the girl who was allegedly involved in the larceny case, and that thus counsel did not attempt to locate the girl for trial.  However, this argument is deflated by an admission of appellant that an associate of his counsel did visit him in jail before trial.  Therefore, appellant did have an opportunity to 

 [*573]  tell counsel about the girl. Furthermore, if appellant thought his case was prejudiced [***8]  without the nameless girl's testimony, or by inadequacy of representation by counsel, he could have complained to the trial judge, which he failed to do.  Brown v. State, 237 Md. 492, 498, 207 A. 2d 103 (1965).
Judgments affirmed.  

5 of 19 DOCUMENTS 

HOPKINS And TERRY v. STATE (Two Appeals in One Record) 

No. 365, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 517; 211 A.2d 831; 1965 Md. LEXIS 576 

July 16, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing as to Terry Filed and Denied July 28, 1965.  

PRIOR HISTORY:
Appeal from the Criminal Court of Baltimore; Grady, J.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Arrest -- Armed Robbery -- Police Had Probable Cause Under Circumstances Here To Believe That Felony Had Been Committed And That Defendant Had Committed It -- Report Of Felony And Description Of Perpetrator Broadcast Over Police Radio May Furnish Probable Cause For Arrest -- Arrest Being Valid, Items Seized In Search Of Defendant Incidental To Arrest Were Properly Admitted Into Evidence.
Arrest -- Lawful In Present Armed Robbery Case, Since Police May Rely Upon Reasonably Trustworthy Information Received From Third Person -- Testimony By Police Officer That He Knew Informant, And Informant Obviously Knew Circumstances Of Holdup -- Even If Arrest Had Been Unlawful, Evidence Seized Would Still Be Admissible, For Trial Judge Was Not Clearly Wrong In Concluding That Defendant Had Freely And Voluntarily Consented To Search Of His Apartment When He Signed Form Authorizing Police To Conduct Search.
Armed Robbery -- Non-Jury Cases -- State's Evidence, If Believed (As It Obviously Was), Held Sufficient To Sustain Findings  [***2]   Of Guilt.  

SYLLABUS:

Leon R. Hopkins and Ernest R. Terry were convicted in non-jury cases of armed robbery, and from the judgments entered thereon, they appeal.  

COUNSEL:
Morris L. Kaplan, with whom was Michael Lee Kaplan on the brief, for the appellants.
Carville M. Downes, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and John D. Hackett, Assistant State's Attorney, on the brief, for the appellee.  

JUDGES:
Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Sybert, J., delivered the opinion of the Court.  

OPINIONBY:
SYBERT 

OPINION:

 [*518]   [**832]  The appellants, Leon R. Hopkins and Ernest R. Terry, with a third person, Martin L. Spriggs, were charged under one indictment with the armed robbery of the manager of a real estate office in Baltimore.  The three defendants were tried together by Judge Grady sitting without a jury in the Criminal Court of Baltimore and were all found guilty.  After being sentenced to terms in the penitentiary, Hopkins and Terry appealed.
According to the State's evidence, on January 31, 1964, the complaining witness, Robert Katzoff, was working in [***3]  his real estate office when at approximately 12:40 P.M. three men entered and pretended to be interested in an apartment. Then one of the men threatened Katzoff with a knife and another took his wallet which contained, among other things, $ 15.00 and his salary check.  He was forced to open a safe from which were taken $ 190.00 in cash, a Masonic apron, a cloth bag with Hebrew lettering on it, a pistol, several checks, and other items.  The intruders bound Katzoff's mouth and hands with adhesive tape and then left.  After Katzoff was unbound by a tenant in the building he summoned the police and gave them partial descriptions 

 [*519]  of two of the men, which were broadcast over the police radio. The broadcast said that the two robbers were colored men, and that one was wearing a fatigue jacket and the other a cream colored jacket and khaki pants.
A police sergeant cruising in a patrol car heard the broadcast and a few minutes later saw two colored men within eight blocks of the real estate office "walking fast, looking around in back of them." One was wearing a fatigue jacket and the other a cream colored jacket and khaki pants.  Believing that they fitted the descriptions,  [***4]  he stopped his car and arrested them without a warrant.  The two were Spriggs and the appellant Hopkins.  Hopkins was searched when arrested and a small knife was seized from him, and later at the police station $ 51.00 was taken from him.  Two police detectives arrived on the scene and searched Spriggs.  A knife and a pistol were taken from him at that time and $ 50.00 was taken from him at the police station. Hopkins denied any knowledge of the holdup. However, Spriggs admitted that he had participated in it and told the police that he would show them where they could find the third man.
Spriggs then accompanied the police to an address where he told them they would find the third man. Spriggs went inside with the police, who arrested the appellant Terry without a warrant.  He denied any knowledge of the holdup. The apartment belonged to a friend of Terry.  Terry and Spriggs were taken to the police station where Spriggs gave a written statement naming the two appellants as participants in the holdup. The appellants were then confronted with the statement but both denied any knowledge of the facts contained therein.  The police asked Terry whether they could search his apartment.  [***5]  According to them, Terry gave them oral permission to do so and also voluntarily signed a police form authorizing the police to search his residence.  Terry then accompanied the police to his apartment where the officers seized a Masonic apron, a cloth bag with Hebrew lettering, a wallet and some checks.  Later the police found $ 77.00 in the apartment.
On this appeal by Hopkins and Terry they contend (1) that their arrest was illegal; (2) that the trial court erred in admitting in evidence the objects seized from Terry's apartment; 

 [*520]  and (3) that the verdict was against the weight of the evidence.
 [**833]  With respect to the legality of Hopkins' arrest we think that under the circumstances of this case the police had probable cause to believe that a felony had been committed and that Hopkins had committed it.  Mulcahy v. State, 221 Md. 413, 421, 158 A. 2d 80 (1960). It is well settled that a report of a felony and a description of the perpetrators broadcast over a police radio may furnish probable cause for an arrest, Farrow v. State, 233 Md. 526, 197 A. 2d 434 (1964). Thus the arrest of Hopkins was valid, his search was incidental to the arrest, and the items [***6]  seized were properly admitted in evidence.
In regard to appellant Terry, we believe that his arrest was lawful since it is well established that police may rely on reasonably trustworthy information received from a third person. Taylor v. State, 238 Md. 424, 209 A. 2d 595 (1965); Shorey v. State, 227 Md. 385, 388, 177 A. 2d 245 (1962). Here, one of the officers testified he knew the informant Spriggs, and Spriggs obviously knew the circumstances of the holdup. However, even if Terry's arrest was unlawful, if his consent to the search of his apartment was voluntary, then the evidence seized would still be admissible. Anderson v. State, 237 Md. 45, 49, 205 A. 2d 281 (1964); Armwood v. State, 229 Md. 565, 185 A. 2d 357 (1962).
As to the voluntariness of Terry's consent, it is undisputed that he signed a police form in which he authorized the police to search his apartment. On the form itself it was stated that Terry had been informed that he had a right to object to the search and a police officer testified that no threats or inducements were made to secure Terry's signature.  The appellant did not take the stand to rebut any of this.  A question of fact was presented [***7]  to the trial judge and we cannot say he was clearly wrong in concluding that Terry freely and voluntarily consented to the search.  Carter v. State, 236 Md. 450, 453, 204 A. 2d 322 (1964).
Finally, the appellants contend that the verdict was against the weight of the evidence.  To support this contention it is asserted inter alia that the testimony of the complaining witness was weak.  However, we think the State's evidence, if believed by the trial judge (as it obviously was), was sufficient to sustain 

 [*521]  his finding that the appellants were guilty.  Calloway v. State, 238 Md. 612, 208 A. 2d 373 (1965).
Judgments affirmed.  

6 of 19 DOCUMENTS 

GEE v. STATE 

No. 450, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 604; 212 A.2d 269; 1965 Md. LEXIS 588 

July 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Carter, J.  

DISPOSITION:
Order denying petitioner's application reversed, and case remanded for the entry of an order instructing the Director of the Patuxent Institution to release petitioner from further custody; petitioner's conviction of burglary in the Criminal Court of Baltimore on October 9, 1956 vacated and new trial granted.  

HEADNOTES:

Defective Delinquents -- Where Criminal Conviction Violated Appellant's Constitutional Rights, And Conviction Was Essential Element Of Legality Of His Commitment As Defective Delinquent, Appellant's Present Detention As Such Was In Violation Of Law And He Was Entitled To His Release.  Under the decision of Gideon v. Wainwright, 372 U.S. 335, there is a constitutional requirement imposed upon the State that a defendant be represented by counsel in a burglary case.  This requirement applies retroactively, and a conviction prior to Gideon in which the defendant was not provided with counsel must be vacated. The appellant in the present statutory burglary case, at his pre-Gideon trial, was neither advised of his right to counsel nor provided with counsel, and since his conviction was in violation [***2]  of his constitutional rights and was an essential element of the legality of his commitment as a defective delinquent, the Court held that his present detention at Patuxent Institution was in violation of law and that he was entitled to be released.  While the State argued that because the appellant had served his sentence, he could not now be retried for his offense, would be at large and an actual danger to society, even though he had been found to be a defective delinquent, the Court stated that the Defective Delinquency Act was never meant to provide for the commitment of all persons who may be defective delinquents.
Post Conviction Procedure Act -- Infractions Of Constitutional Rights Which May Render Criminal Conviction A Nullity Are Grounds For Relief Under.
Criminal Law -- Conviction In Violation Of Constitutional Rights -- Appellant Entitled To New Trial On Criminal Charge To Endeavor To Establish His Innocence With His Constitutional Right To Counsel At Trial Preserved.  

SYLLABUS:

Samuel Gee instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for, and was granted, leave to appeal.  

COUNSEL:
George L. Russell, Jr. [***3]  , with whom was Richard K. Jacobsen on the brief, for the appellant.
Jon F. Oster, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and William T. S. Bricker, Assistant State's Attorney, on the brief, for the appellee. 

JUDGES:
Prescott, C. J., and Horney, Sybert, Oppenheimer and Barnes, JJ.  Oppenheimer, J., delivered the opinion of the Court. 

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*605]   [**270]  In this petition for relief under the Post Conviction Procedure Act, the petitioner claims that his commitment to Patuxent Institution as a defective delinquent was illegal because his conviction of statutory burglary, the crime which made his commitment possible under the Defective Delinquency Act, was in violation of his constitutional rights and therefore of itself illegal.
The history of the prior proceedings in which the Appellant was involved is succinctly set forth by the State, as follows:
"The Appellant was convicted of burglary in the Criminal Court of Baltimore on October 9, 1956, and was sentenced to the Maryland Reformatory for Males for three years.  The Court also ordered that [***4]  the Appellant be sent to the Patuxent Institution for study 

 [*606]  and evaluation under Article 31B of the Annotated Code of Maryland.  On March 18, 1957, after a hearing in the Criminal Court of Baltimore, the Appellant was found to be a defective delinquent and was committed to the Patuxent Institution, the balance of his sentence being suspended.
The Appellant received a second hearing as a defective delinquent on December 18, 1958, and he was again found to be a defective delinquent. On May 18, 1961, he filed a petition for a reconsideration of that finding, but the Court dismissed his petition without prejudice.
He received a third hearing as a defective delinquent in the Circuit Court for Baltimore County on November 21, 1962, and was recommitted to the Patuxent Institution as a defective delinquent. He then filed an Application for Leave to Appeal to the Court of Appeals of Maryland which was denied on March 8, 1963.  See Gee v. Director of Patuxent Institution, 231 Md. 610, 188 A. 2d 565 (1963).
Appellant also filed an Application for a Writ of Habeas Corpus in the United States District Court for the District of Maryland which was denied without prejudice on [***5]  December 31, 1962.
Thereafter, the Appellant filed a petition for relief in the Criminal Court of Baltimore under the Post Conviction Procedure Act on February 20, 1963.  A hearing was held and on September 20, 1963, the Court denied relief and dismissed the petition.  On September 24, 1963, the Appellant filed his Application for Leave to Appeal to the Court of Appeals of Maryland from the Order denying him relief and dismissing his petition.  On February 10, 1965, the Applicant's Application for Leave to Appeal was granted."
The State concedes that at his criminal trial in 1956, the Appellant was neither advised of his right to counsel nor provided with counsel.  Under Gideon v. Wainwright, 372 U.S. 335 (1963) there is a constitutional requirement imposed upon 

 [*607]  the State of representation of a defendant by counsel in a case where the defendant has been charged with burglary. Manning v. State, 237 Md. 349, 206 A. 2d 563 (1965). Manning also held that Gideon applies retroactively and that a conviction prior to Gideon in which the defendant was not provided with counsel  [**271]  must be vacated. See also Linkletter v. Walker, 381 U.S. 618,  [***6]  14 L. Ed. 2d 601, 614 (1965). Infractions of constitutional rights that may render a criminal conviction a nullity are grounds for relief under the Post Conviction Procedure Act. Simon v. Director, 235 Md. 626, 201 A. 2d 371 (1964). See Laird v. Director, 237 Md. 178, 205 A. 2d 238 (1964).
The Defective Delinquency Act provides that a request may be made that a person be examined for possible defective delinquency if he has been convicted and sentenced in a court of this State for a crime or offense coming under certain named categories.  A misdemeanor punishable by imprisonment in the Maryland Penitentiary is one of the crimes named.  Code (1957), Article 31B, §  6.  Statutory burglary is such a misdemeanor. If a person has not been convicted of one of the crimes enumerated in Section 6 (or of two of certain offenses not here involved) his commitment as a defective delinquent is illegal.  Height v. State, 225 Md. 251, 170 A. 2d 212 (1961).
The State contends that because the Appellant's original sentence has expired, the Appellant's detention is only as a defective delinquent; that defective delinquency proceedings are, as we have repeatedly held, civil in nature,  [***7]  involving no issue as to guilt or innocence of any crime of which the person involved has been convicted in the past; and that therefore the question which Appellant raises with respect to his right to counsel is moot.  In support of its argument the State relies upon Marshall v. Director, 215 Md. 622, 137 A. 2d 661 (1958).
In Marshall, the appellant had filed a petition for a writ of habeas corpus on July 31, 1957, at which time he was being detained in Patuxent Institution pending his trial as to whether or not he was a defective delinquent. He had been convicted of unauthorized use of a motor vehicle and sentenced to one year in the Maryland House of Correction on November 3, 1955.  On November 9, 1955, it was ordered that he be transferred 

 [*608]  to Patuxent Institution for the purpose of examination as to whether he was a defective delinquent. On August 5, 1957, he was tried and found to be a defective delinquent, and was committed to Patuxent on that day.  His sentence for his criminal offense had expired, but we held that he was being confined as a result of the order of commitment, and that therefore the question of the legality of his incarceration as of July [***8]  31, 1957, when his petition for a writ of habeas corpus was received, was moot.  No question of the deprivation of any constitutional rights of the appellant in his original conviction was involved.  We held only that the fact that his sentence had been served did not entitle him to the writ because he was being detained under the order committing him as a defective delinquent. Marshall is not in conflict with Height.  In Height, as here, the question was whether a commitment as a defective delinquent was legal when a necessary condition of commitment had not been met; in Marshall, it was not the legality of the necessary prior conviction which was in issue, but only the effect of the expiration of the sentence for the offense after a legal commitment as a defective delinquent. The serving of the sentence is immaterial as to the constitutionality of the original conviction, and without a legal conviction, the commitment is invalid whether or not the sentence has been served.
In Simon v. Director, supra, the appellant, committed to Patuxent Institution after a conviction of sodomy, applied for post conviction relief.  He alleged, inter alia, that his criminal [***9]  conviction was the result of an illegal arrest and illegal search and seizure.  The court below apparently took the view that the commitment and recommitment to Patuxent precluded attack upon the convictions and sentences the petitioner was not then serving. We held that a petition for post conviction relief may be filed at any time, under the Act, although the petitioner is not then detained under the sentence attacked, and granted leave to  [**272]  appeal.  Judge Henderson, for the Court, said: "Of course, he cannot have a retrial on an issue of guilt or innocence, but he may raise questions concerning the jurisdiction of the trial court, or alleged infractions of constitutional rights that may render the trial a nullity."
Because the Appellant's criminal conviction was in violation 

 [*609]  of his constitutional rights and because that conviction was an essential element of the legality of his commitment as a defective delinquent, we hold that his present detention is in violation of law, and that he is entitled to be released.
The State argues that, because the Appellant has served his sentence, he cannot now be retried for his criminal offense, and that therefore, he [***10]  will be at large, although he has been found to be a defective delinquent under Section 5 of the Defective Delinquency Act, and to be an actual danger to society. That Act was never meant to provide for the commitment of all persons who may be defective delinquents. See Height v. State, supra, at 256-57, and Eggleston v. State, 209 Md. 504, 513-14, 121 A. 2d 698 (1956). n1

n1 In its 1947 session, the Legislature passed a joint resolution authorizing and directing the appointment of a Commission to study Medico Legal Psychiatry.  This Commission was duly appointed by the Governor and made its report in 1948.  A special Advisory Committee had been appointed by the Board of Correction, consisting of seven Maryland psychiatrists and psychologists, which issued its report in January, 1949.  The Legislative Council of Maryland appointed a Committee on Medico Legal Procedure, which made its report in December, 1950; attached thereto is Research Report No. 29 of the Research Division of the Legislative Council.  In Eggleston v. State, 209 Md. 504, 514, 121 A. 2d 698 (1956), we said that the Defective Delinquency Act was the end result of several years of study by these three bodies.  Research Report No. 29 contains the following statement, at 6 and 7:
"There is no measurement of the cost and losses to society and to innocent families caused by preventable crimes, such as the James case, the Duker case, and other similiar tragedies.  The recommendations here made, if enacted, would prevent at least some of these crimes in the future without the sacrifice of any basic individual rights."
That report also gives the joint recommendations of the Commission to study Medico Legal Psychiatry and the Advisory Committee of the Board of Correction.  The fifth recommendation of that Commission and Committee is set forth at p. 8 of Research Report No. 29 and reads in part as follows:
"It is agreed that the institution should not be planned to contain all the criminal defectives, whether mental or emotional."
After the passage of the Defective Delinquency Act, the Legislative Council appointed a Commission to Study and Evaluate Patuxent Institution, of which Chief Judge Roszel C. Thomsen of the United States District Court for the District of Maryland, was Chairman.  The report of this Commission is dated January 25, 1961.  That report contains the following statement at p. 14:
"Not all defective delinquents can be apprehended or committed to Patuxent.  Unfortunately, despite the operation of the law and Patuxent's part therein, heinous crimes will be perpetrated in the future as they have been in the past.  In our opinion, however, without the law, these crimes would be substantially greater in number and in tragic results."
In March, 1964, Governor Tawes appointed another Commission to Study Changes and Basis of Selection for Patuxent Institution, of which Judge Thomsen again was chairman.  The Interim Report of that Commission, dated December 17, 1964, contains the following statement at p. 7:
"It has also been recognized from the inception of the project that not all persons who are defective delinquents can or should be committed and that no institution such as Patuxent can hope to treat all defective delinquents."

 [***11]  

 [*610]  The Act, as our decisions point out, protects the rights of individuals as well as those of society.  Valid convictions of one or more of the offenses enumerated in the Act have been deemed by the Legislature to be an essential condition before commitment to Patuxent can be ordered.
 [**273]  In the argument before us, counsel for the Appellant asked that a new trial on the original criminal charge be granted.  This the Appellant is entitled to; he has the right to endeavor to establish his innocence with his constitutional right to counsel at the trial preserved.  The effect of the serving of the sentence imposed as the result of the original trial, if the State wishes to retry the Appellant, is not before us.
Order denying petitioner's application reversed, and case remanded for the entry of an order instructing the Director of the Patuxent Institution to release petitioner from further custody; petitioner's conviction of burglary in the Criminal Court of Baltimore on October 9, 1956 vacated and new trial granted.  

7 of 19 DOCUMENTS 

PARISER BAKERY AND STATE ACCIDENT FUND v. KOONTZ 

No. 384, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 586; 212 A.2d 324; 1965 Md. LEXIS 584 

July 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Baltimore City Court; Manley, C. J.  

DISPOSITION:
Judgment reversed.  Costs to be paid by the appellee.  

HEADNOTES:

Workmen's Compensation -- Injury Occurring While Employee Is Going To Or Coming From Work -- Appellee Struck By Automobile On Public Sidewalk -- Peril Common To All -- Proximate Rule Exception Not Applicable Here.  In the instant workmen's compensation case the appellee-employee, while coming from work, was struck by an "out-of-control" automobile on a public sidewalk approximately seven feet beyond the east side of his employer's building line. It was held that the injury did not arise "out of" his employment.  The Court pointed out that in cases such as this where the employee is going to or coming from work, the compensation acts have been generally held not to authorize an award in case of an injury from a peril which is common to all mankind, or to which the public at large is exposed. It was further held that the "proximity rule" exception to the general going and coming rule, did not apply here.  The gravamen of that rule is not that the employee is in close proximity to his place of employment, but rather that by reason of such proximity the [***2]  employee is subjected to danger peculiarly or to an abnormal degree beyond that to which the general public was subjected. That was not the case here.  

SYLLABUS:

From the judgment of the Baltimore City Court affirming the finding of the Workmen's Compensation Commission, that the claimant-employee, Charles A. Koontz, had sustained an accidental injury arising out of and in the course of his employment, the Pariser Bakery, employer, and the State Accident Fund, insurer, appeal.  

COUNSEL:
Charles R. Goldsborough, Jr., Special Attorney, with whom were Thomas B. Finan, Attorney General, J. Howard Holzer, Special Assistant Attorney General and J. Raymond Buffington, Jr., Special Attorney, on the brief, for appellants.
No brief and no appearance for appellee.  

JUDGES:
Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Marbury, J., delivered the opinion of the Court.  

OPINIONBY:
MARBURY 

OPINION:

 [*588]   [**325]  This is an appeal on behalf of the Pariser Bakery, employer, and the State Accident Fund, insurer, from a judgment entered in the Baltimore City Court.  The case was submitted to that court upon an agreed statement of facts.  Chief Judge Manley affirmed the finding of the Workmen's [***3]  Compensation Commission, that the claimant-appellee, Charles A. Koontz, had sustained an accidental personal injury arising out of and in the course of his employment.
For some years and on the date of the accident, the claimant had been employed by Pariser Bakery. On August 24, 1962, Koontz, who regularly worked the night shift, drove his automobile to the bakery and parked it on Sanford Place, a public street which dead ends into Pennsylvania Avenue opposite the bakery premises in Baltimore City.  In order to get to the bakery at 2304 Pennsylvania Avenue, he walked down Sanford Place and across Pennsylvania Avenue to a door designated for the exclusive use of employees, officials and customers.  He arrived at approximately 7:00 p.m., changed into his work clothes and went to the second floor where he operated a dough mixing machine.
Shortly before 4:00 a.m. on August 25, the claimant concluded his work, went down to the first floor of the plant to the locker room where he changed his clothes, punched out at the time clock, and departed from the building, intending to retrace his steps of the previous evening.  He walked out of the bakery's entrance and across the truck loading [***4]  area, which is approximately seventeen feet wide, covered by the extension of the second floor. This area abuts a public sidewalk fourteen feet wide in front of the bakery's premises.  The curb of the sidewalk was beveled in front of the plant's loading area to permit its trucks to back to the loading platform.
When the claimant reached the point where the sidewalk meets the bakery's building line, he said that he took one step onto the sidewalk, heard a loud noise, looked to his right, saw an object and stepped back toward the building.  An automobile, 

 [*589]  driven at a high rate of speed, ran onto the sidewalk at the intersection of Pennsylvania Avenue and Baker Street. It continued in a northerly direction on the sidewalk, struck the right side of an automobile parked alongside the curb facing south on the west side of Pennsylvania Avenue, knocked down a street light located on the sidewalk next to the curb between the parked car and the building line, and then struck and injured the claimant. His body came to rest on the sidewalk about seven feet east of the bakery's building line, within that portion of the sidewalk where the west curbing of Pennsylvania Avenue had been [***5]  removed.  After being struck, the  [**326]  claimant said that he attempted to rise by putting his hands on the fender of one of the bakery's trucks, which was backed up to the loading platform.  The automobile continued to move upon the sidewalk for some distance, went out into the street, and finally stopped ninety feet north of the place where the claimant was struck. The driver maintained that he lost control of the vehicle, which was five and a half to six feet wide, because of a faulty steering mechanism.
The appellants' sole contention on appeal is that the claimant's injury did not arise "out of" and "in the course of" his employment, as provided in Code (1957), Article 101, Section 15.  An injury arises out of a claimant's employment when it results from some obligation, condition or incident of his employment.  Whether it does must be decided from the facts and circumstances of each individual case.  There must be a causal connection between the conditions under which the work is required to be performed and the ensuing injury.  Thus, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar [***6]  with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.  However, it does not include an injury which can not be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been exposed away from the employment.  Scherr v. Miller, 229 Md. 538, 184 A. 2d 916; Watson v. Grimm, 200 Md. 461, 90 A. 2d 180; Hill v. Liberty Motors, 185 Md. 596, 45 A. 2d 467. Here, the claimant's injury was 

 [*590]  not one which followed as a natural incident of his work as a dough mixer.  It did not result from a causative danger peculiar to his work, nor did it have its origin in a risk connected with the employment.  The causative danger, a car being driven on the public sidewalk, was one common to the neighborhood.  We find that the injury could not have arisen out of his employment.
The words "out of" and "in the course of" employment as used in the Workmen's Compensation Act are not synonymous, and both must be satisfied by the claimant to bring his case within the operation of the Act.  Perdue v. Brittingham, 186 Md. 393, 47 A. 2d 491. An injury [***7]  arising in the course of employment is one which occurs while the workman is doing the duty which he is employed to perform at a place where he reasonably may be in the performance of his duties. Watson v. Grimm, supra; Consol. Engineering Co. v. Feikin, 188 Md. 420, 52 A. 2d 913. In the case at bar, the claimant had ended his day's work on the second floor of his employer's building and dressed in the locker room preparatory to going home.  He checked out of work by punching his time card, walked outside through the door used by both employees and customers, and was going home when he was struck by a stranger driving an automobile down the public sidewalk at a point approximately seven feet beyond the east side of the bakery's building line. We hold that under these facts the claimant's injury did not occur while he was doing the duty which he was employed to perform, nor was he engaged in doing something incidental to his employment.  His period of employment ended when he "punched out" from his work, departed from the bakery's premises, and was actually crossing a public sidewalk on his way home.
It has been held consistently by this Court that employees who suffer injuries [***8]  in going to and returning from their places of work are excluded from the benefits of the Workmen's Compensation Act. Police Comm'r v. King, 219 Md. 127, 148 A. 2d 562; Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350, 118 A. 2d 486; Reisinger-Siehler Co. v. Perry, 165 Md. 191, 167 Atl. 51. With respect to injuries received by an employee while on the street in front of  [**327]  the employer's premises when 

 [*591]  going to or coming from work, the compensation acts have been generally held not to authorize an award in case of an injury from a peril which is common to all mankind, or to which the public at large is exposed. Dep't of Correction v. Harris, 232 Md. 180, 192 A. 2d 479; Md. Paper Products Co. v. Judson, 215 Md. 577, 139 A. 2d 219; Lancaster v. Celanese Corp., 163 Md. 516; 163 Atl. 209. The claimant in this case sustained injuries on the public sidewalk while going from work and under the above rule was not entitled to workmen's compensation.
The lower court's memorandum opinion granting the claimant relief relies on the "proximity rule" exception to the general going and coming rule.  This rule allows compensation for an injury to an employee [***9]  when, under the special facts of the case, the employment itself involves peculiar and abnormal exposure to a common peril which is annexed as a risk incident to the employment, i.e., where the location of the plant is at a place so situated as to make the customary and only practicable way of immediate ingress and egress one of hazard which causes the injury.  This is not the case here.  The claimant was walking across an ordinary sidewalk. The danger which caused his injury was not a regular or frequent one to which his employment exposed him to a greater degree than was the general public. There was no evidence that he was placed near the danger by reason of his work, such as a railroad or a dock, to allow him compensation under the proximity rule.  The gravamen of that rule is not that the employee is in close proximity to his place of employment, but rather that by reason of such proximity the employee is subjected to danger peculiarly or to an abnormal degree beyond that to which the general public was subjected. To allow recovery under the facts presented in this case would convert the proximity rule into a general rule applying to any street upon which a place of business [***10]  might front. Md. Paper Products Co. v. Judson, supra. This would be an unwarranted extension of the proximity rule which, in effect, would make the employer general insurer of the health, safety and life of his employees.
Judgment reversed.  Costs to be paid by the appellee.  

8 of 19 DOCUMENTS 

PALACOROLLE v. STATE 

No. 353, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 416; 211 A.2d 828; 1965 Md. LEXIS 568 

July 6, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Harlan, J.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

Criminal Law -- Express Waiver Of Counsel And Entry Of Guilty Plea -- Where Intelligently And Understandingly Made, Even If There Was A Defense To Merits Of Crimes Charged, Trial Judge Did Not Have To Strike Plea, Appoint Counsel Over Appellant's Objection And Hear Case On The Merits.  Appellant, who pleaded guilty of charges of resisting arrest and disorderly conduct, did not in this case contend that he was not given every opportunity to indicate whether or not he understood the indictment, his pleas, and the availability of court appointed counsel to represent him, before the trial judge accepted the pleas and permitted the case to proceed without appointing counsel. However, he did contend that the trial judge, after ascertaining his age, limited education, intoxicated condition at the time of his arrest, together with his version of the facts, should have stricken the pleas, appointed counsel over the appellant's objection and set the case down for a hearing on the merits.  Under Maryland Rule 719, the court is permitted in the interest of justice to strike a guilty plea; but the [***2]  exercise of this power is largely discretionary.  Appellant reasoned that his version of the facts, if true, demonstrated an available defense to the merits of the indictment, or at least a patent misunderstanding of the crimes for which he had been charged under the indictment. However, he did not show that there was a defense to the crimes charged; and he admitted resisting arrest. Even a showing that there may have been a defense raised to the crimes charged, if there had been no guilty plea, does not, of itself, make an express and understanding waiver of counsel and entry of a guilty plea ineffective.  In this case, there was no evidence that appellant's express waiver of counsel and entry of guilty pleas were involuntarily given.  In addition, when, as in this case, a defendant has not shown that his waiver of court-appointed counsel was not understandingly and intelligently made, the constitutional right does not require that counsel be forced upon an accused who wants none.  

SYLLABUS:

Paul Palacorolle was tried before the court, sitting without a jury, and pleaded guilty to two indictments charging him with resisting arrest and disorderly conduct.  From the judgments entered thereon,  [***3]  he appeals.  

COUNSEL:
Stanley Alpert for appellant.
Julius A. Romano, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and Charles E. Moylan, Jr., State's Attorney for Baltimore City, on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Marbury, Sybert and Oppenheimer, JJ.  Oppenheimer, J., delivered the opinion of the Court.  

OPINIONBY:
OPPENHEIMER 

OPINION:

 [*417]   [**828]  The appellant, an eighteen year old defendant with a tenth grade education, was tried before Judge Harlan, sitting without a jury, in the Criminal Court of Baltimore, under indictments charging him with resisting arrest and disorderly conduct. Prior to a plea of guilty to both indictments, the Clerk read the indictments aloud to the appellant.  Thereafter the appellant offered his pleas of guilty, whereupon Judge Harlan advised him of his right to the appointment of counsel at the expense of the State.  The appellant refused.  Judge Harlan advised him that a plea of guilty to resisting arrest authorizes the imposition of any fine or sentence not cruel and inhuman.  The appellant responded that he understood his right to the appointment of counsel and that he understood [***4]  that his plea  [**829]  of guilty to resisting arrest could result in such fine or sentence. The State then inquired whether any promises of leniency or other promises were made to the appellant, to which he replied in the negative.
The State told the court that on October 3, 1964, at approximately 11:00 p.m., Officer Harold Stein, detailed in plain 

 [*418]  clothes to East Baltimore Street for the purpose of apprehending any possible window breakers or plunderers of automobiles, observed the appellant in a dazed condition walking past him into the doorway of a shop, try the door, walk away and try the door of an automobile at the curb, walk to a parking lot and attempt to get into an open car; whereupon Officer Stein approached the appellant and identified himself as a police officer, to which the appellant replied, "I fought police before." Officer Stein attempted to question him as to his actions; the appellant started yelling and using profane language; the officer placed him under arrest and, after making a call for the police wagon, the appellant said, "You're not going to take me in *** I'm going to get away from you." The appellant made an unsuccessful attempt to break [***5]  away.  After the arrival of the police wagon, Officer Stein climbed in with the appellant and while enroute to the police station the appellant lunged at Officer Stein attempting to strike and kick him.  He was subdued by Officer Stein and another officer.
The appellant took the stand and testified that he remembered opening the car door and a police officer coming up to him and grabbing him by the belt of his pants.  The officer asked him "what I was doing.  I turned around and then I come to my senses.  I didn't know what I was doing.  So the police officer said, 'You got any identification?' So I took my wallet out of my pocket.  He grabbed my wallet out of my hand, looking at it.  I had a newspaper clipping in my wallet about when I got in trouble with a police officer. I got sentenced to sixty days over the City jail.  He said, 'you like to fight police, huh?' He started pulling me down to the call-box. I pulled back on him and he grabbed me and took me down to the call-box and called the wagon.  The wagon came and they threw me inside.  I didn't lunge at him or anything as the statement says but I did resist when he pulled me down to the call-box. I pulled away from him."  [***6]  
Upon questioning by the court, the appellant testified that he had been drinking heavily.  He had a juvenile record, which included acts of violence.  In 1963, when he was past the juvenile age, he had been sentenced to not more than eighteen months for auto larceny.  The sentence was suspended, and he 

 [*419]  was sent to the Maryland Training School, but, after an escape from that School, served some months in a penal institution.  In 1964, he had had three convictions for disorderly conduct, and, at the time of the crimes here involved, was on probation.  Despite his youth, he was no stranger to the processes of the criminal law.
The appellant was sentenced to two years on the charge of resisting arrest and sixty days on the disorderly conduct charge, the sentences to run concurrently.
The appellant contends that his age, limited formal education and his intoxicated condition at the time of the arrest together with his version of the facts demonstrate that he could not have had the requisite understanding of the nature of the charges against him to have intelligently entered his pleas of guilty, nor understood the consequences of proceeding without benefit of counsel.  A youthful [***7]  defendant of limited education may nonetheless demonstrate to the satisfaction of the court that he possesses the requisite understanding of the nature of acts sufficient to amount to a knowing and voluntary waiver of constitutional protections.  Bean v. State, 234 Md. 432, 199 A. 2d 773 (1964) and cases therein cited.  See also Cooper v. State, 231 Md. 248, 253, 189 A. 2d 620 (1963). The question of whether there has been a knowing and voluntary waiver is largely a question of fact to be determined as a preliminary  [**830]  matter by the trial judge.  Johnson v. Zerbst, 304 U.S. 458 (1938). We are convinced, and the appellant does not contend otherwise, that he was given every opportunity to indicate whether or not he understood the indictment, his pleas, and the availability of court appointed counsel to represent him, before Judge Harlan accepted the pleas and permitted the case to proceed without appointing counsel.
However, the appellant's contention seems to be that Judge Harlan, after ascertaining the appellant's age, limited education, condition at the time of the arrest, together with his version of the facts, should have stricken the pleas, appointed counsel [***8]  over the appellant's objection and set the case down for a hearing on the merits.  This argument is based upon the reasoning that the appellant's version of the facts, if true, demonstrates an available defense to the merits of the indictment, or 

 [*420]  at least a patent misunderstanding of the crimes for which he had been charged under the indictment. Under Maryland Rule 722, the court is permitted in the interest of justice to strike a guilty plea. Whether or not this power is to be exercised is largely one of discretion.  White v. State, 227 Md. 615, 177 A. 2d 877 (1962).
In Moore v. Michigan, 355 U.S. 155 (1957), a seventeen year old Negro with a seventh grade education was sentenced to life for murder after expressly "waiving" the assistance of counsel and entering a plea of guilty.  A majority of the Supreme Court were of the view that the waiver of counsel and the entry of the guilty plea were induced by the defendant's fear of mob violence while in the custody of the Sheriff, and therefore reversed the conviction.  While relying upon fear of mob violence to nullify the defendant's express waiver of counsel and entry of a guilty plea, the Court said that the [***9]  record demonstrated that the defendant may have had some reasonable defenses to the crime charged and therefore the assistance of counsel seemed essential.  The Court did not hold there could not be a voluntary waiver of counsel.  In this case, there is no evidence that the appellant's express waiver of counsel and entry of guilty pleas were involuntarily given; on the contrary, we find that Judge Harlan made every effort to apprize the appellant of the consequences of his guilty pleas and the appellant indicated that no promises had been made to him to induce his pleas.
In Carnley v. Cochran, 369 U.S. 506 (1962), the Supreme Court reversed the conviction of an illiterate who conducted his own defense without having been advised of his right to the assistance of counsel. That case is factually distinguishable from the one before us.  The Court noted that if the record had shown an express waiver of counsel as in Moore, the burden would be upon the defendant "to show by a preponderance of the evidence that his acquiescence was not sufficiently understanding and intelligent to amount to an effective waiver." 369 U.S. at 516. Here, that burden has not been met.
When, as in [***10]  this case, a defendant has not shown that his waiver of court-appointed counsel was not understandingly and intelligently made, the constitutional right does not require that counsel be forced upon an accused who wants none.  Post v. 

 [*421]  Boles, 332 F. 2d 738, 742 (4th Cir. 1964); Linden v. Dickson, 278 F. 2d 755, 763 (9th Cir. 1960). See Moore v. Michigan, supra at 161 and Carter v. Illinois, 329 U.S. 173, 174-75 (1946).
The appellant has not shown there was a defense to the crime charged; he admitted that he resisted the officer who arrested him.  Even a showing that there may have been a defense raised to the  [**831]  crimes charged, if there had been no guilty plea, does not, of itself, make an express and understanding waiver of counsel and entry of a guilty plea ineffective.
Judgments affirmed.  

9 of 19 DOCUMENTS 

ANNAPOLIS FIRE AND MARINE INSURANCE COMPANY v. RICH et al., Trustees 

No. 330, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 573; 212 A.2d 249; 1965 Md. LEXIS 583 

July 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Superior Court of Baltimore City; Sodaro, J.  

DISPOSITION:
Judgment affirmed, the costs to be paid by the appellant.  

CASE SUMMARY
 
PROCEDURAL POSTURE: Appellant sought review of the decision of the Superior Court of Baltimore County (Maryland) in favor of appellees in their action to recover rent from appellant and others as tenants holding over.
 
OVERVIEW: Pursuant to a written lease, appellees leased property to a company with a close business relationship with appellant. Appellant and another party, which had a close relationship with both appellant and the lessee, occupied the premises due to the lessee's financial problems and paid rent to appellees a few months beyond the term of the written lease and then later abandoned the premises. Appellees sued appellant contending that appellant held over on the written lease and was liable for rent for the next year as tenants from year to year under an oral lease. The trial court ruled in favor of appellees. Appellant sought review. The appellate court determined that the trial court's finding that appellant, the lessee, and the other party were co-tenants of the premises under an oral lease was not clearly erroneous. As the result of a conversation between one of the appellees and the president of the lessee company, acting as a representative of the lessee, appellant, and the other occupant of the premises, an oral agreement was reached between the parties creating a new year to year tenancy. Accordingly, the court affirmed the trial court's decision.
 
OUTCOME: The appellate court affirmed the trial court's decision in favor of appellees in their action to recover rent from appellant, concluding that the trial court's finding that appellant and others were co-tenants of the premises under an oral lease was not clearly erroneous.
 
CORE CONCEPTS 

Real Property Law : Landlord & Tenant : Commercial Leases
Entry by a person, with the subsequent payment of rent, creates a periodic tenancy.

Real Property Law : Landlord & Tenant : Commercial Leases
When one in possession of property by grant of the owner pays rent to the owner, a tenancy is implied by the law from the entry into possession of the premises and the payment and acceptance of the rent.

Real Property Law : Landlord & Tenant : Commercial Leases
A lease which fails to comply with the Statute of Frauds is not absolutely void. Where, as is usually the case, there is an entry plus payment of rent, a periodic tenancy is created in all but a very few states. In some states it is said that a periodic tenancy arises when there is an entry under an oral lease reserving a periodic rental, although no rent is actually paid.

Contracts Law : Contract Interpretation : Parol Evidence Rule
Contracts Law : Breach
The abandonment of a contract under seal may be proved by parol evidence.

Contracts Law : Types of Contracts : Oral Agreements
Contracts Law : Contract Conditions & Provisions : General Provisions
A written contract under seal before breach may be varied by a subsequent oral agreement made upon a legal consideration. Such a subsequent oral agreement may enlarge the time of performance, or may vary any of the terms of the contract, or may waive and discharge it altogether.

Real Property Law : Landlord & Tenant : Commercial Leases
Real Property Law : Sales, Exchanges & Remedies : Statutes of Frauds
When a tenant is put in possession of property under a lease which is unenforceable under the statute of frauds, or which passes no estate for any statutory or other reason, he is, nevertheless, lawfully in possession and holds as some sort of tenant. The same thing is true of a tenant who goes into possession under a valid lease for a term of years, and remains over, with the consent of the landlord. Such a tenant holds from year to year, or from quarter to quarter, or from month to month, depending on the manner in which the rent was calculated in the void or unenforceable lease, or in the original lease for a term of years.

Real Property Law : Landlord & Tenant : Commercial Leases
A tenant who goes into possession under a void or unenforceable lease and pays the rent named in such lease, or who holds over, after the expiration of a lease for a term of years, and thereafter pays the same rent as that named in the lease, intends to occupy the leased premises under the same terms and conditions, except for the fact that he is a tenant from year to year or from quarter to quarter, or from month to month, and that all the terms and conditions of the original lease, whether void, unenforceable or expired, carry over into the new renting, except that the tenancy is different, and that, during the term of the original unenforceable or void lease or after the original valid lease expires, the tenant is entitled to the common law notice required to determine his new kind of tenancy.

Contracts Law : Types of Contracts : Oral Agreements
Real Property Law : Sales, Exchanges & Remedies : Statutes of Frauds
Under the provisions of the statute of frauds, oral leases within the statute and surrenders are not invalid or illegal, but merely unenforceable if there is no compliance with the requirements of that statute.

Contracts Law : Types of Contracts : Oral Agreements
Real Property Law : Sales, Exchanges & Remedies : Statutes of Frauds
Under the provisions of the statute of frauds, oral leases of less than three years duration do not require a writing to be enforced.

Business & Corporate Entities : Agency
The declarations by an agent that he has authority to bind the principal are not sufficient, of themselves, to establish the agency. When the scope of the agency is otherwise proved or if the agency has been ratified, the statement of the agent as to the extent of his authority is admissible as evidence of his power to bind the principal. 

HEADNOTES:

Landlord and Tenant -- Finding That Appellant Here Was Co-Tenant Holding Over Under Oral Lease, Rather Than Sub-Tenant, Held Not Clearly Erroneous.  In the present landlord and tenant case the Court held that a conversation between respective representatives of three interrelated corporations and the landlords (confirmed in basic part by a letter from the landlords' representative) justified the trial court in finding that the three corporations were co-tenants of the premises involved under an oral lease embodying all of the terms of a prior written lease executed by one of the tenants, except that after the date of the conversation, July 5, 1962, there were three co-tenants liable jointly and severally for the annual rent payable in equal monthly installments.  The tenants thereafter remained in possession and paid rent under this arrangement.  While the appellant, one of the corporations, claimed that it was a sub-tenant, rather than a co-tenant holding over after the lease had expired, the Court pointed to testimony that it earlier had [***2]  obtained direct permission from the landlord to place a sign on the premises, so that even prior to July 5, 1962, the landlord and the appellant both had considered the latter's position to be that of a co-tenant. Had it considered itself a sub-tenant of either or both of the other corporations, the appellant would have merely obtained their permission, rather than dealing directly with the landlord. The three corporations remained in possession of the premises and rent was paid by the two corporations who were parties to the oral (but not the written) lease under the arrangement made on July 5, 1962.
Landlord and Tenant -- Entry, With Subsequent Payment Of Rent, Creates Periodic Tenancy.
Contracts -- Under Seal -- Abandonment Of, May Be Proved By Parol Evidence.
Landlord and Tenant -- Execution Of Oral Lease On Both Sides With Tenants Remaining In Possession And Paying Rent -- Neither Side Could Successfully Challenge Lease Upon Ground That It Did Not Comply With Statute Of Frauds -- Holding Over By Tenants From Year To Year.  Where it was held that the appellant was a co-tenant holding over under an oral lease which followed a written lease of the premises entered [***3]  into by another co-tenant, the Court found no merit to the appellant's claim that there was no surrender of the written lease in writing as required by the Statute of Frauds.  The tenant in the original written lease was insolvent and had discontinued paying rent, the obligation in this respect being met by the appellant and another corporation in possession.  All of the parties agreed to an entire new oral leasing arrangement, and this amounted to an assumption of possession under the new arrangement.  Moreover, the Court stated that even if it assumed that the oral surrender and the new oral lease were ineffective under the Statute of Frauds, nevertheless the three co-tenants would, as tenants holding over, be deemed tenants from year to year of a tenancy governed by the terms of the written lease (made part of the oral lease by agreement) as to annual rent, terms of payment and other terms except as to the term of years itself.  Where, as here, the oral lease was completely executed on both sides, with the three tenants remaining in possession and paying rent until the expiration of the term of the lease, neither side could successfully challenge the excuted oral lease upon the [***4]  basis of noncompliance with the Statute of Frauds.  There being an oral lease in effect at the termination of the tenancy and a holding over by the tenants with the continued payment of rent and the acceptance thereof by the landlords, the tenants held over from year to year and were jointly and severally liable for the rent for the year beginning after the expiration of the lease.
Corporations -- Finding That Vice President Of, Had Apparent Authority To Enter Into Oral Lease Held Justified -- Conduct Of Corporation Amounted To Ratification Of Vice President's Action.  

SYLLABUS:

Amended declaration by Edward L. Rich, Jr., and the Equitable Trust Company, Trustees under the will of Charles Combs Burch, as landlords, against the Annapolis Fire and Marine Insurance Company, and others, as tenants, to recover rent payments allegedly due.  From a final judgment against Annapolis Fire, it appeals.  

COUNSEL:
Lawrence B. Coshnear and A. David Gomborov for the appellant.
Eben F. Perkins, with whom were Perkins & Rich on the brief, for the appellees.  

JUDGES:
Hammond, Horney, Marbury, Sybert and Barnes, JJ.  Barnes, J., delivered the opinion of the Court.  

OPINIONBY:
BARNES 

OPINION:

 [*575]   [***5]   [**251]  The appellees, Edward L. Rich, Jr. and The Equitable Trust Company, Trustees under the Will of Charles Combs Burch, as owners and landlords of the property 112 East Madison Street in Baltimore City sued General and Excess Underwriters, Incorporated (General), Annapolis Underwriters, Inc. (Underwriters) and the appellant, Annapolis Fire and Marine Insurance Company (Annapolis Fire), as tenants holding over to recover rent for the months of February, March and April 

 [*576]  1963 amounting to $ 675 ($ 225 a month) for the first floor of 112 East Madison Street and three automobile parking spaces. The action was filed in the Superior Court of Baltimore City.  It was tried before Judge Sodaro, without a jury.  Judge Sodaro, after testimony was taken and arguments presented, rendered judgment against Annapolis Fire for $ 675.  Judgments by default had previously been entered against General and Underwriters and judgments on inquisitions were made absolute against them.  The motion of Annapolis Fire for a new trial or for judgment n.o.v. in its favor was overruled by the lower court and this appeal was entered by Annapolis Fire from the final judgment against it.
The original [***6]  written lease for the first floor of 112 East Madison Street, with three automobile parking spaces in the rear of the premises with the use in common with other tenants of the front entrance hall (the premises) was executed by Charles Combs Burch as lessor and General as lessee on August 26, 1957.  The term of the lease was for five years beginning September 1, 1957 and ending, without notice, on August 31, 1962.  The annual rent was $ 2700 payable in equal monthly installments of $ 225 each, in advance, on the first day of each month during the term.  Paragraph 5 of the lease provided as follows:
"5. The Lessee covenants that it will not assign or sublet this Lease without the prior consent in writing of the Lessor, first had and obtained, such consent, if given, to be restricted to such person or persons to whom or for such purpose or purposes for which such consent shall be specifically given, such consent not to be construed or taken as in any way waiving this general provision and restriction."

Paragraph 9 of the lease provided:
"9. The Lessee shall have the privilege of placing a sign in the panel space between the two front windows on the Madison Street side [***7]  of the first floor."

General placed a substantial sign as permitted in paragraph 9, bearing the legend: "General Excess Underwriters, Inc., correspondents 

 [*577]  for Insurance Underwriters at London and Paris."
After Mr. Burch died, the appellees, as trustees under his will, assumed control over the premises in 1961.
General, Underwriters and Annapolis Fire had a close business relationship.  They were in various aspects of the insurance business and had a number of officers, directors and stockholders in common with each other.  For example, Monroe H. Lowitt was president and a stockholder of General, an officer and stockholder of Underwriters, and a vice president (but not a stockholder) of Annapolis Fire.  He helped to organize Underwriters and Annapolis Fire.  Underwriters was the underwriting agent for Annapolis Fire.
General became embarrassed financially and during the term, Underwriters and Annapolis Fire moved into and occupied the premises some time in 1959.  Annapolis Fire placed a substantial sign on the Madison Street outside wall of the premises directly under the sign of General, bearing the legend: "Home Office Annapolis Fire and Marine Insurance  [***8]   Company." Mr. Lowitt testified that he obtained the permission of Mr. Burch to place the Annapolis Fire sign on the front wall of the premises.
 [**252]  When Mr. Rich, a member of the Maryland Bar and a co-trustee under Mr. Burch's will, first inspected the premises on behalf of the trustees, he saw the signs on the Madison Street wall of the premises.  He indicated that there is also a similar Annapolis Fire sign on the Calvert Street side of the premises.  Mr. Rich received a letter dated June 8, 1962 from Mr. Lowitt on the letterhead of General which stated:
"This is to advise you that we do not expect to renew our lease which expires on November 30, 1962." n1

n1 This date was an error; the lease expired by its terms on August 31, 1962.

After receipt of this letter, Mr. Rich had a conference with Mr. Lowitt on July 5, 1962 at the premises.  Mr. Rich testified that he had met Mr. Lowitt before and knew he was the owner and general manager of General, the lessee referred to 

 [*578]  in the [***9]  lease of August 26, 1957.  Mr. Lowitt identified himself as also being an officer of Annapolis Fire and also as an officer of Underwriters.  Mr. Rich then gave the following account of the conversation:
"Mr. Lowitt told me the General and Excess Underwriters, Inc. was completely broke and were very much in debt, and that Annapolis Fire and Marine Insurance Company were occupying the premises and had been for some time, and that Annapolis Underwriters, Inc. were also occupying them and had been for some time, and the rent had been paid sometimes by Annapolis Underwriters and sometimes by Annapolis Fire and Marine.  I told him I was very glad we had three tenants now which we would accept in place of the one we had, and we had some who could pay the money.  We talked about some payment.  He talked about whether they were going to stay.  He expressed the fact that they were going to move to One Charles Center, which had not been done.  I called their attention to the fact they had cheaper rent, with a parking area, and urged them to stay.  He said under the circumstances they did not know what they were going to do but they were there for the time being."
After returning to his [***10]  office, Mr. Rich confirmed his conversation with Mr. Lowitt by a letter dated July 5, 1962.  This letter is as follows:

"Mr. Monroe H. Lowitt,
General and Excess Underwriters, Inc.,
Annapolis Fire and Marine Company,
Annapolis Underwriters, Inc.,
112 E. Madison Street,
Baltimore 2, Maryland
Re: The Burch Estate
Dear Mr. Lowitt:
This will confirm my talk with you today to the effect that the Trustees will be glad to have you continue leasing the property known as 112 E. Madison 

 [*579]  Street, first floor, from the Burch Estate.  We do not know where you will get as much area with parking lots available as exist at 112 E. Madison Street for the amount of money which you are now paying, and accordingly suggest that you consider this matter very seriously.
We are pleased to learn today that you are considering the possibility of continuing to lease these premises at the expiration of the present lease.
If there is anything we can do to make your stay pleasant and confortable [comfortable], we will be glad to consider same."
The letter was signed by Mr. Rich as Executor and Trustee of the Estate of Mr. Burch and a copy was sent to Mr. Laun, Assistant Trust [***11]  Officer of The Equitable Trust Company.  Shortly thereafter Mr. Rich instructed the officers of The Equitable  [**253]  Trust Company, co-trustee, to bill all three corporations for the rent, but, apparently through inadvertance, the Trust Company continued to send bills for the rent to General as it had done theretofore.
After Underwriters and Annapolis Fire had moved into the premises, Underwriters sent the $ 225 rent each month to The Equitable Trust Company by its corporate check.  Annapolis Fire gave its corporate check each month for $ 112.50 to Underwriters.
General, Underwriters and Annapolis Fire continued to occupy the premises after August 31, 1962, the end of the term specified in the written lease. Mr. Rich testified that Robert G. Lembach, attorney for the three corporations, telephoned him on February 25, 1963 and advised him that Underwriters had moved out of the premises and that Annapolis Fire was going to move out and "wanted to get out by the first of March 1963." During that conversation, Mr. Rich told Mr. Lembach that "They had been accepted under the lease earlier, and they had to pay the rent" to which Mr. Lembach replied: "I understood we were on a month [***12]  to month basis." Mr. Rich replied: "No you are not, you are all responsible for the rest of the year from August 31." Mr. Rich testified further that Mr. 

 [*580]  Lembach told him on March 26, 1963 that Annapolis Fire and Underwriters had been paying the rent.
Diligent efforts were made by the landlords to rent the premises after they were fully vacated at the end of March, 1963, but without avail.  Written demands by the landlords to pay the rent due for February and March, 1963, and to become due on April 1, 1963, were sent to Underwriters and to Annapolis Fire on March 28, 1963, with the statement in each letter "we hold you jointly and severally liable on this rent with other tenants of this space."
The landlords contend that by the entry of Underwriters and Annapolis Fire into the premises, the payment of rent and the placing of the signs on the buildings, Underwriters and Annapolis Fire became jointly and severally liable for the rent as tenants and when the two corporations, with General, held over as tenants after August 31, 1962 they were liable for the rent for the next year as tenants from year to year. On the other hand, Annapolis Fire contends that Annapolis Fire [***13]  was not a co-tenant holding over on the written lease because it was not a party to it, nor was it liable for rent under an oral lease because there was no intention to make one and no meeting of the minds with respect to such an oral lease; that the landlords could not grant Annapolis Fire any leasehold estate when the written lease for the premises was in effect; that Mr. Lowitt, as vice president of Annapolis Fire had no authority to bind the corporation by his representations; and, that the landlords elected to charge General and Underwriters as tenants holding over, thereby excusing Annapolis Fire from liability.  The basic position of Annapolis Fire on the facts is that it was a subtenant of the premises and not a co-tenant, liable for the rent as a tenant holding over.  Judge Sodaro did not file an opinion in the case, but by directing the entry of judgment against Annapolis Fire, he necessarily found that Annapolis Fire was a co-tenant holding over and was not a sub-tenant.
We are of the opinion that the lower court's finding was not clearly erroneous and, in accordance with Maryland Rule 886a, the judgment must be affirmed.
It is uncontradicted that both Underwriters and [***14]  Annapolis Fire were in possession of the premises, together with General 

 [*581]  in 1959 and thereafter, prior to the termination of the written lease of August 26, 1957.  The close business relationship between the three corporations, the cessation of payment of the rent by General and the assumption of that obligation by Underwriters and by Annapolis Fire (at least indirectly) indicates that the possession  [**254]  of Underwriters and Annapolis Fire was with the consent of General.
The testimony of Mr. Lowitt that Annapolis Fire obtained the permission of Mr. Burch during his lifetime to place the Annapolis Fire "Home Office" sign on the outside walls of the premises, indicates that even prior to July 5, 1962 the landlord had recognized Annapolis Fire as a co-tenant of the premises, with General and Underwriters (from which corporation he had been receiving the rent), and that Annapolis Fire considered its position at that time to be that of a co-tenant. Otherwise, if it had considered itself to have been a sub-tenant of either General or of Underwriters, or of both, it would have merely obtained their permission and General or Underwriters, or both, would have made [***15]  whatever arrangements were required to obtain the landlord's permission for the placing of the home office sign of Annapolis Fire.  Whatever may have been the relationship between the tenants inter sese and by them with Mr. Burch, the landlord, the conversation between Mr. Lowitt, representing all three corporations, and Mr. Rich, representing the landlords, on July 5, 1962 (confirmed in basic part by Mr. Rich's letter of the same date) justified the trial court in finding that the relationship thereafter between the parties was that the three corporations were co-tenants of the premises under an oral lease which contained all of the terms of the written lease of August 26, 1957, except that thereafter there were three co-tenants liable jointly and severally for the annual rent of $ 2700, payable in equal monthly installments of $ 225.  It is significant that after the conversation of July 5, 1962 and the receipt of the confirming letter addressed to all three corporations (and to Mr. Lowitt as their representative), the rent for August 1962 was paid.  In other words, the three corporations remained in possession and the rent was paid under the arrangement made on July 5, 1962.  [***16]  It is well established that entry by a person, with the subsequent payment of rent, creates 

 [*582]  a periodic tenancy. See Progressive Ass'n v. Rose, 235 Md. 169 at p. 174, 201 A. 2d 8 at p. 11, where it is stated:
"When one in possession of property by grant of the owner pays rent to the owner, a tenancy is 'implied by the law from the entry into possession of the premises and the payment and acceptance of the rent.' Cook v. Boehl, 188 Md. 581, 591."

See also 1 American Law of Property, Sec. 3.20, page 218, where it is stated:
"A lease which fails to comply with the Statute of Frauds is not absolutely void. *** Where, as is usually the case, there is an entry plus payment of rent, a periodic tenancy is created in all but a very few states. n2 In some states it is said that a periodic tenancy arises when there is an entry under an oral lease reserving a periodic rental, although no rent is actually paid."

n2 Maine and Massachusetts.

There is no problem raised by the [***17]  parol evidence rule as the Maryland law is well established that the abandonment of a contract under seal may be proved by parol evidence.  Malin v. Robinson, 194 Md. 104, 109, 70 A. 2d 51, 54 (1949) involving the abandonment by mutual oral agreement of a contract under seal for the sale of real estate.  See Tashjian v. Karp, 277 Mass. 42, 177 N.E. 816 (1931) involving a new oral lease during the term of a three year written lease, with different terms and provisions.  In sustaining the oral lease the court stated:
"It has long been settled in this Commonwealth that a written contract under seal before breach may be varied by a subsequent oral agreement made upon a legal consideration.  'Such a subsequent oral agreement may enlarge  [**255]  the time of performance, or may vary any of the terms of the contract, or may waive and discharge it altogether.'" (citing cases).  (page 817 of 177 N. E.).
Annapolis Fire contends that there was no surrender of the 

 [*583]  written lease in writing as required by the third section of the Statute of Frauds, 29 Charles II, Chapter 3, Section III, and relies on Prevas v. Gottlieb, 229 Md. 188, 182 A. 2d 489 (1962). The decision [***18]  in the Prevas case turned upon the facts in that case which were quite different from those in the case at bar.  In Prevas the contention was that the landlord had orally indicated to one of the partnership tenants that she would "let him off" the five year written lease for the partnership premises.  The landlord denied this.  The partnership was dissolved during the term and the retiring partner thought he was released from his obligation as a tenant under the written lease but the dissolution agreement did not state this.  The rent continued to be paid by the partnership in the same form of checks as theretofore.  Later the remaining partner became insolvent and the landlord sought recovery against the retiring partner.  We held in that case that the admissible evidence did not establish an oral surrender of the lease. In the case at bar, General, the tenant in the written lease, was insolvent and had discontinued the payment of the rent. This obligation had been met by the other two corporations in possession.  The entire new leasing arrangement was agreed to by all of the parties on July 5, 1962, and this amounted to an assumption of possession under the new arrangement.  [***19]  Even assuming arguendo, that the oral surrender and new oral lease were ineffective under the Statute of Frauds, nevertheless, the three corporations would, in any event, as tenants holding over be deemed tenants from year to year of a tenancy governed by the terms of the written lease (made part of the oral lease by agreement) as to annual rent, terms of payment and other terms except as to the term of years itself.  See Hyatt v. Romero, 190 Md. 500, 58 A. 2d 899 (1948) involving an invalid lease for more than seven years not recorded as required by Code, Art. 21, Sec. 1.  See also Darling Shops Delaware Corp. v. Baltimore Center Corp., 191 Md. 289, 60 A. 2d 669 (1948) -- citing the Hyatt case with approval -- in which Chief Judge Ogle Marbury, speaking for the Court, stated in the opinion:
"When a tenant is put in possession of property under a lease which is unenforceable under the statute 

 [*584]  of frauds, or which passes no estate for any statutory or other reason, he is, nevertheless, lawfully in possession and holds as some sort of tenant. The same thing is true of a tenant who goes into possession under a valid lease for a term of years, and remains [***20]  over, with the consent of the landlord. At first, under the common law, it was held that in these situations the tenant was a tenant at will, who could be put out at any time by the landlord. This created great hardship on tenants, particularly those in agricultural districts, and, eventually, it was determined that such a tenant held from year to year, or from quarter to quarter, or from month to month, depending on the manner in which the rent was calculated in the void or unenforceable lease, or in the original lease for a term of years.  ***
"It was necessary for the courts to go further, and to determine, not only the kind of tenancy thus established, but the terms on which such tenancy was held.  The natural and reasonable conclusion was adopted that a tenant who went into possession under a void or unenforceable lease and paid the rent named in such lease, or who held over, after the expiration of a lease for a term of years, and thereafter paid the same rent as that named in the lease, intended to occupy the leased premises under the same terms and conditions, except for the fact that he was a tenant from year to year (or from  [**256]  quarter to quarter, or from month [***21]  to month), and that all the terms and conditions of the original lease, whether void, unenforceable or expired, carried over into the new renting, except that the tenancy was different, and that, during the term of the original unenforceable or void lease or after the original valid lease had expired, the tenant was entitled to the common law notice required to determine his new kind of tenancy." (pages 293-294 of 191 Md.; pages 670 and 671 of 60 A. 2d).

 [*585]  It is clear that under the provisions of the Statute of Frauds, oral leases within the Statute n3 and surrenders were not invalid or illegal, but merely unenforceable if there were no compliance with the requirements of that statute.  When, as in the case at bar, the oral lease was completely executed on both sides -- the three tenants remaining in possession until August 31, 1962 and the rent having been paid until that time -- neither landlords nor tenants can successfully challenge the executed oral lease on the basis of non-compliance with the requirements of the Statute of Frauds.  Nicholson v. Schmucker, 81 Md. 459, 32 Atl. 182 (1895). See also Bruns v. Spalding, 90 Md. 349, 361, 45 Atl. 194, 196 (1900) [***22]  and Crane v. Gough, 4 Md. 316, 332-333 (1853). There being an oral lease entered into by the three corporate co-tenants in effect at the termination of the tenancy and a holding over by them with the continued payment of rent by the tenants and the acceptance of the rent by the landlords, the three tenants held over as tenants from year to year, and were jointly and severally liable for the rent for the year beginning September 1, 1962 and ending August 31, 1963.  The tenancy of the tenants holding over was a new tenancy, subject to the terms of the prior lease except as to duration.  Smith v. Pritchett, 168 Md. 347, 178 Atl. 113, 98 A.L.R. 212 (1935). See also Rhynhart "Notes on the Law of Landlord and Tenant," 20 Md. L. R. 1, at pages 6, 7 and 12 and the cases cited in Notes 44 to 47, and 93.

n3 Under the provisions of the Statute of Frauds, 29 Charles II, Chapter 3, Section II, oral leases of less than three years duration do not require a writing to be enforced.  The oral lease in the case at bar only extended from July 5, 1962 to August 31, 1962, or much less than for three years so that no writing was required by the Statute to enforce it.  See Union Banking Co. v. Gittings, 45 Md. 181, 196-197 (1876).

 [***23]  
In our opinion the trial court was justified in finding from the evidence that Mr. Lowitt, as vice president of Annapolis Fire, had apparent authority to enter into the oral lease on behalf of that corporation.  He was in charge of the operation of the corporation's business at the premises, the home office of the corporation.  The leasing of premises as a home office for Annapolis Fire was essential to the operation of the corporation's 

 [*586]  business.  He represented to Mr. Rich that he had such authority n4 and after receiving Mr. Rich's confirming letter of July 5, 1962 addressed to all three corporations, Annapolis Fire did not repudiate the arrangement described in that letter or indicate to the landlords that Mr. Lowitt had no authority to bind it.  On the contrary, after receipt of the letter of July 5, Annapolis Fire continued in possession of the premises and, in effect, continued to pay one-half of the rent for the premises.  Annapolis Fire accepted the benefit of the bargain made for it by Mr. Lowitt, its vice president. This conduct amounted to a ratification of Mr. Lowitt's action in entering into the oral lease on  [**257]  behalf of Annapolis Fire.  See  [***24]  Webb v. Duvall, 177 Md. 592, 11 A. 2d 446 (1940); Equitable Gas Light Co. v. Baltimore Coal Tar Co., 65 Md. 73, 3 Atl. 108 (1886); Grape Sugar & Vinegar Manufacturing Co. v. Small, 40 Md. 395 (1874); and Northern Central Railway Co. v. Bastian, 15 Md. 494 (1860). See also Brune on Maryland Corporation Law and Practice (Revised Edition) Section 232, pages 231 to 236.

n4 The declarations by an agent that he has authority to bind the principal are not sufficient, of themselves, to establish the agency.  See Posko v. Climatic Control Corp., 198 Md. 578, 84 A. 2d 906 (1951). When the scope of the agency is otherwise proved or if the agency has been ratified, as in the case at bar, the statement of the agent as to the extent of his authority is admissible as evidence of his power to bind the principal.  See 2 Restatement of Agency, Sec. 284, comment b.

 [***25]  
For these reasons, the judgment entered by the trial court will be affirmed.
Judgment affirmed, the costs to be paid by the appellant.  

10 of 19 DOCUMENTS 

ZURICH INSURANCE CO., et al. v. CONTINENTAL CASUALTY CO., et al.  

No. 297, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 421; 212 A.2d 96; 1965 Md. LEXIS 569 

July 13, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Prince George's County; Powers, J.  

DISPOSITION:
Judgment affirmed, with costs.  

HEADNOTES:

Automobiles -- Insurance -- Held: Legislature Did Not Intend By Art. 66 1/2, Sec. 2 (32) To Constitute Everyone Who Takes Vehicle Out For Trial The "Owner" Thereof, So As To Be Included In His Insurance Policies By Reason Of Statute Alone, Even Though He Is Temporarily In Exclusive Control Of Vehicle.
Sales -- When Title Passes -- Code (1957), Art. 86, Sec. 36, Intent Of Parties Controls -- Vendor's "Used Truck Order" Specifically Stated That Title Was Not Intended To Pass Nor Order To Be Binding Upon Vendor Until Accepted In Writing By Vendor's Home Office -- There Was No Such Acceptance -- Vendor Was Held To Be Owner Of A Truck That Was Under Exclusive Control Of Prospective Vendee For Trial At Time Of Collision -- Primary Insurance Coverage Followed Ownership.
Insurance -- Motor Vehicle -- Suit To Determine Primary Insurance Carrier On Vehicle Involved In Collision While In Exclusive Control Of Prospective Vendee For Trial -- Unfilled Oral Promise By Prospective Vendee That He Would Have Vehicle Covered Under His Fleet Policy Not Sufficient To Effectuate  [***2]   Such Coverage And Bind Insurer.
Insurance -- Automobile Liability Coverage -- Non-Owner's Policy Non-Ownership Clause With Excess Coverage Provision Did Not Constitute Other Valid And Collectible Insurance Within Meaning Of Owner's Primary Policy With Omnibus Clause -- Primary Coverage Went With Ownership Of Vehicle.  In the instant suit to determine whether the automobile liability insurance carrier for a used-truck sales business (seller) or the insurance carrier for a prospective purchaser was the primary insurance carrier on a truck involved in a collision while the truck was in the exclusive control of the prospective purchaser for trial, the Court held that under the facts the seller was the owner of the truck at the time of the accident and that when the provisions of the policies in question were juxtaposed, it was apparent that primary coverage went with ownership of the vehicle.  The seller's policy and the buyer's policy contained identical provisions as to the coverage of an insured "while using an owned automobile" as well as provisions that "the insurance [... under the policies] with respect to loss arising out of *** the use of any non-owned automobile [***3]  shall be the excess insurance over any other valid and collectible insurance." The seller's policy also contained an endorsement "that with respect to any automobile loaned by the named insured to any person or organization for demonstration or other purposes [... the insurance under the policy shall not apply] if there is other valid and collectible insurance in force for such person or organization either as an insured under a policy applicable with respect to the automobile or otherwise." Juxtaposing the provisions of the policies, when as here, a person such as the prospective purchaser's employee is driving a vehicle owned by the named insured, the seller, with its permission, he is covered primarily by the owner's policy and the insurance afforded that driver (purchaser's employee) in the non-owner's policy is excess coverage. The Court held that the seller's insurer was primarily liable to the third party injured in the collision to the extent of its policy and the prospective purchaser's insurance policy would have afforded excess insurance had the damages exceeded the limit named in the seller's policy.
Insurance -- If Insurance Is For Excess Coverage It  [***4]   Cannot Also Be Pro Rata Insurance As To The Same Loss.  

SYLLABUS:

Action by Continental Casualty Company, et al., against Zurich Insurance Company, et al., to determine which company should be regarded as the primary insurer of a truck involved in a collision and whether Continental would be entitled to reimbursement for the sum it paid into court in settlement of a claim arising out of the collision.  From a judgment in favor of the plaintiff, defendant appeals.  

COUNSEL:
Submitted on brief by John J. Mitchell and Donahue, Ehrmantraut & Mitchell, for appellants.
Charles E. Channing, Jr., for appellees.  

JUDGES:
Prescott, C. J., and Horney, Sybert, Oppenheimer and Barnes, JJ.  Prescott, C. J., delivered the opinion of the Court.  

OPINIONBY:
PRESCOTT 

OPINION:

 [*423]   [**97]  This appeal presents a controversy between two automobile liability insurance carriers: Zurich Insurance Company (Zurich), and Continental Casualty Company (Continental).
Brockway Motor Trucks (Brockway), apparently a corporation, in 1958, operated a used-truck sales business in Baltimore City.  On, or about, August 12th of that year, a Mr. Kaumjian (according to appellees' brief; Kumjeon according to appellants'),  [***5]  a representative of Delta Chemical Company (Delta), entered into negotiations with Brockway concerning the possible purchase of one of its used trucks. Kaumjian selected a truck as probably being suitable for his purposes, and two or three days later called Mr. Barry, Branch Manager of Brockway, 

 [*424]  and advised him he would like to try out the truck. n1 Barry testified that he advised Kaumjian that his company did not ordinarily permit demonstration of used vehicles, but, if Kaumjian, inter alia, would have the truck adequately covered with insurance and return it the next day, he could use the truck for one trip to Wilmington, Delaware.  According to Barry, Kaumjian assured him that Delta has a Fleet Policy and Kaumjian would include the truck in that policy by way of binder "while it was on loan" (this was not done).

n1 On August 12, 1958, Kaumjian signed a "Used Car Order" for the truck. More will be said of the "order" later.

A representative of Delta "picked up" the truck on, or about, August [***6]  13th, after signing an application for temporary license tags.
The truck was not returned the next day, and, after Kaumjian was contacted and gave an excuse for not having returned it, he was informed that he could keep it for one more day.  The truck was not returned on the following day, and, when Kaumjian was reached again, he stated that he was satisfied with the truck with the exception of a few minor repairs.  No demand was made at this time for the truck's return, and it was not returned, nor was any down payment made on the "order" (the pertinent terms of which will soon be set forth).  On August 18th or 19th, the truck was involved in a collision with a motor vehicle belonging to one James C. Burke; Burke sustained personal injuries and his vehicle was damaged.  At the time of the collision, the truck was being operated by Ernest Galloway, an employee of Delta, who was operating the same on the business of his employer.  Delta's insurer was Continental; Brockway's was Zurich.
Burke brought suit against Brockway, Delta, and Galloway.  Continental then made a written demand on Zurich that it, as the primary carrier, take over the defense of the cause.  Zurich refused to comply [***7]  with this demand.  After an agreement with Zurich that $ 6,000 was a reasonable figure upon which to settle, Continental negotiated a settlement with Burke for that amount, and, then brought suit against Zurich for reimbursement.  Judge Powers decided that Brockway owned the truck at the time of 

 [*425]  the collision and that Zurich was the primary insurance carrier. This appeal followed.
Two questions are presented: (1), Was Brockway the owner of the truck at the time Burke was injured?; and (2), If Brockway were the owner, was Delta's insurer (Continental) liable for all, or any part, of the settlement made with Burke?
 [**98]  I
The "Used Truck Order" mentioned above stated that it was "given and accepted subject to conditions":
***"(2) It is agreed that title is not intended hereby to pass to purchaser."
***"(4) There are no understandings, agreements, or representations *** not specified herein * * *."
***"(6) This order shall not be binding upon vendor until accepted by vendor in writing hereon, by its authorized agent, * * *."
Appellant first suggests that Delta must be held to have been the "owner" of the truck at the time of the accident by [***8]  reason of Code (1957), Article 66 1/2, Section 2 (32), although conceding that title "rested" in Brockway.  The provision of the Code referred to is in the "Motor Vehicles" Article, and states: "The term 'owner' shall include any person, firm, association or corporation owning a vehicle or having the exclusive use thereof under contract of purchase, lease, hiring or rental thereof, or otherwise." Appellant argues that Delta had the exclusive use of the vehicle at the time of the accident; therefore, it necessarily follows, by reason of the statute, that Delta was the owner.
We do not think the answer to this claim requires lengthy elaboration.  In Baughman v. Milstone, 144 Md. 233, this Court in construing the language of the statute (then Article 56, §  134) stated that statutes must be construed reasonably and with reference to the purposes sought to be accomplished by 

 [*426]  them.  It then held that one who hired a motor vehicle by written agreement which gave to the hirer in temporary possession exclusive control of the vehicle for a short period of time was not the "owner" thereof for the purposes of registration, titling, etc., under the provisions of the then Section [***9]  134 of Article 56, et seq. We do not think the Legislature intended by said Section 2 (32) to constitute everyone, who takes a motor vehicle out for trial, the "owner" thereof so as to be included in his insurance policies by reason of the statute alone, even though he may be temporarily placed in exclusive control of the vehicle; and we hold that the Legislature did not so intend.
Appellant next contends that Delta was the owner of the truck because Code (1957), Article 83, §  37 (2) states that when goods are delivered to a buyer on approval or trial, the property passes when the purchaser signifies his acceptance, or his adoption of the sale in some manner; and, if the prospective vendee fails to signify his acceptance, his acceptance may be implied if the goods are not returned within a reasonable time.  No claim is made that the parties to a contract of sale (we do not intimate that Delta and Brockway had a contract of sale at the time of the collision) are required to include these provisions in all contracts of sale.  As a matter of fact, §  37 sets forth rules for ascertaining the intention of the parties as to the time of the passing of the property in goods "unless a [***10]  different intention appears." In the instant case, the "order" specifically stated that title was not intended to pass and the order would not be binding on vendor until accepted by vendor in writing, and Mr. Barry, Branch Manager for Brockway in Baltimore, testified that an order could not be accepted at "branch level," but it was necessary to mail the order forms to the home office in New York State for acceptance.  He added that an order was an offer from a prospective purchaser until accepted by the home office.  The "order" was still in the Baltimore Branch of Brockway at the time of the accident, without acceptance by Brockway.  Code (1957), Article 83, §  36 provides that title passes when the parties intend it to pass.  As just stated above, the explicit terms of the order provide that title was not intended to pass by any action taken by the parties prior to the  [**99]  accident.  We, therefore, hold that this contention is without merit.  Cf. Syriani v. Gebhart, 195 Md. 69.

 [*427]  In regard to who was the "owner" of the truck at the time of the accident, appellant places considerable emphasis on the alleged promise of Kaumjian to have the truck covered by Delta's [***11]  fleet policy with Continental.  No question is here involved of the possible liability of Delta to Brockway for failing to carry out this promise; the question here is whether Delta is liable as an insured of Continental, so as to render Continental liable for the payment of all, or a portion, of Burke's claim.  As noted above, Kaumjian did not, at any time before the accident, have the truck insured under Continental's policy.  It is obvious that an unfulfilled oral promise of an insured that he will have a motor vehicle covered under his, the insured's, fleet policy is not sufficient to effectuate such coverage and to bind the insurer; hence, under the circumstances here involved, the alleged conversation has little, if any, significance.
We hold that Brockway was the owner of the truck at the time of the collision.
II
Having decided that Brockway was the owner at the time of the collision, the answer to the remaining question is made easy by previously adjudicated decisions.
The Zurich policy contained the following pertinent provisions:

"III. Definition of Insured.  The unqualified word 'insured' includes the named insured and also includes *** (2) under coverages [***12]  A and B any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission * * *."
***
"3. Definitions ***
"(1) Owned Automobile -- an automobile owned by the named insured; ***
***
"14. Other Insurance.  *** the insurance under this policy with respect to loss arising out of *** the use 

 [*428]  of any non-owned automobile shall be excess insurance over any other valid and collectible insurance." (Emphasis added.)
The Continental policy contained identical provisions; and Zurich's policy also contained the following endorsement:

"12. It is agreed that with respect to any automobile loaned by the named insured to any person or organization for demonstration or other purposes, such insurance as is afforded by the policy for coverages A and B shall not apply with respect to such person or organization, if there is other valid and collectible insurance in force for such person or organization either as an insured under a policy applicable with respect to the automobile or otherwise [***13]  ." (Italics added.)
When the identical provisions of the policies quoted above are juxtaposed, it seems apparent that primary coverage goes with the ownership of the vehicle; and when a person such as Galloway is driving a vehicle owned by the named insured, Brockway, with its permission, he is covered primarily by the owner's policy (Zurich's) and the insurance afforded that driver (Galloway) in the non-owners' policy (Continental's) is excess coverage.
Almost the precise, if not the precise, question here involved was decided, apparently for the first time, by the Circuit Court of Appeals for the Seventh Circuit in a lucid and carefully reasoned opinion by  [**100]  Judge Major in Zurich Gen. Acc. & Liability Ins. Co., Ltd., v. Clamor, 124 F. 2d 717 (1941). There, the policies of insurance contained almost identical language as that employed in those in the case at bar: one provided that the insurance afforded a non-owner "shall be excess insurance over any other valid and collectible insurance * * *" (this was the C. & G. policy); the other stated that the omnibus clause contained therein was not applicable to "any person *** with respect to any loss against which he [***14]  has other valid and collectible insurance [this was the Zurich policy]." Damage was caused by a non-owner driver who was operating a motor vehicle covered by the Zurich policy, with the permission of the 

 [*429]  owner.  The non-owner driver was insured under the C. & G. policy.  Declaratory judgment relief was requested as to the rights and liabilities of the respective parties.  The Court decided that the more specific language, "excess insurance," was controlling over the general term "other insurance," and the "excess insurance" provided in the one policy was not the "other insurance" required in the other.  It, therefore, held Zurich primarily liable to the extent named in its policy, and the C. & G. policy liable only for any excess over the coverage provided by Zurich.  See also Citizens Co. v. Allied Co., 217 Md. 494, where several of the questions here involved were considered and decided in accord with this opinion.  And compare Employers' Liability Ass. Corp. Ltd. v. Fireman's Fund Ins. Group, 262 F. 2d 239 (C.C., D.C.); Neighbours v. Harleysville Mut. Cas. Co., 169 F. Supp. 368 (D.C., Md.).
In construing the effect of a provision such as endorsement 12 [***15]  of Zurich's policy, 8 Appleman, Insurance Law and Practice, Section 4914, states that a non-ownership clause with an excess coverage provision does not constitute other valid and collectible insurance within the meaning of a primary policy with an omnibus clause.
In view of what we said above and in Citizens Co. v. Allied Co., supra, it is not necessary to consider at any length the suggestion of appellant that this is possibly a case wherein the damages should be prorated.  There we said that if insurance be pro rata, it cannot at the same time be excess insurance as to the same loss.  It obviously follows that if insurance be excess coverage, as we have held Continental's insurance to be, it cannot also be pro rata insurance as to the same loss.
It was stipulated that the $ 6,000 settlement figure was within the limits of each policy.  We hold that Zurich was primarily liable to Burke to the extent of its policy and the Continental policy afforded excess insurance had the damages exceeded the limit named in the policy of Zurich.
Judgment affirmed, with costs.  

11 of 19 DOCUMENTS 

AMALGAMATED CASUALTY INSURANCE COMPANY v. HELMS, et al.  

No. 366, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 529; 212 A.2d 311; 1965 Md. LEXIS 578 

July 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Superior Court of Baltimore City; Sodaro, J.  

DISPOSITION:
Judgments reversed without new trial; the costs in this Court and below to be paid 9/10 by the Helms and 1/10 by the Staples.  

CASE SUMMARY
 
PROCEDURAL POSTURE: Appellant insurance company challenged the decision of the Superior Court of Baltimore City (Maryland) that appellees were entitled to recover under terms on insurance policy.
 
OVERVIEW: Appellees were injured in motor vehicle collision involving a taxi. Approximately six years after the collision, appellees obtained judgment for their injuries against operator of taxi and brought suit against appellant, insurer of the taxi to require payment by it, to the extent of its liability, of the judgments obtained against the operator. Appellant's policy provided that any person who had secured a judgment against anyone insured under the policy would be entitled to recover under the terms of the policy in the same manner and to the same extent as the insured. It also provided that no action should lie against the company unless suit was instituted within two years and one day after date of such judgment. The court determined that the limitations period contained in the insurance policy was proper.
 
OUTCOME: Judgment below reversed because limitations periods contained in insurance policy was not improper.
 
CORE CONCEPTS 

Insurance Law : Automobile Insurance : Compulsory Insurance
Md. Ann. Code § 127.

Governments & Legislation : Legislation : Construction & Interpretation
Construing a statute liberally and adding to it, by judicial fiat, a provision which the Legislature did not see fit to include are not one and the same thing.

Governments & Legislation : Legislation : Construction & Interpretation
The cardinal rule of statutory construction is to seek and carry out the true intention of the Legislature.

Governments & Legislation : Legislation : Construction & Interpretation
The rule that real intent must prevail over literal intent is adopted only when the literal words of a statute say something that the Legislature could not possibly have meant.

Governments & Legislation : Legislation : Construction & Interpretation
As a general rule a court may not surmise a legislative intention contrary to the plain language of a statute, nor insert or omit words to make the statute express an intention not evidenced in its original form.

Governments & Legislation : Legislation : Construction & Interpretation
If a statute be plain and free from ambiguity, its application may not be enlarged or extended by construction.

Governments & Legislation : Legislation : Construction & Interpretation
The courts, in the absence of ambiguity, should, as a general rule, confine themselves to a construction of a statute as written, and not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature.

Insurance Law : Contracts & Claims : Policy Interpretation
Provisions in insurance policies, reasonably limiting the time within which an action on the policy must be brought, have been almost universally upheld as valid in the absence of statutory restrictions to the contrary. 

HEADNOTES:

Insurance -- Automobile -- Provision In Policy Limiting Time Within Which An Action On The Policy May Be Brought To Two Years And A Day Held Lawful And Reasonable Under The Circumstances Of This Case.  In the instant case it was held that a provision contained in an insurance policy given pursuant to the provisions of the Motor Vehicle Financial Responsibility Act (Code (1957), Art. 66 1/2, secs. 116, et. seq.) to the effect that "no action shall lie against the company" by any person who had secured a judgment against anyone insured under the policy "unless *** suit is instituted within two years and one day after date of such judgment * * *", was a valid condition.  The Court pointed out that Sec. 127 of Art. 66 1/2 dealing with the kind of policy required by the Act provides no requirement for and makes no mention of the period of limitations for instituting suit.  And, although this Act may be liberally construed, where there are no ambiguities, the Court may not [***2]  add to it, by judicial fiat, a provision which the Legislature did not see fit to include.  It was further noted that, in other states, provisions in insurance policies, reasonably limiting the time within which an action on the policy may be brought, have almost universally been upheld as valid in the absence of statutory restrictions to the contrary.  In conclusion, the Court held that the two years and a day period of limitations was reasonable under the circumstances here involved and that it was a lawful and permitted provision of the policy of insurance. 

SYLLABUS:

Suit by Catherine P. Helms, and others, against Amalgamated Casualty Insurance Company, to require payment by the Company on judgments obtained by plaintiffs against one of the Company's policy holders.  From the judgments entered in favor of the plaintiffs, the defendant appeals.  

COUNSEL:
Thomas G. Andrew, with whom were Rollins, Smalkin, Weston & Andrew on the brief, for appellant.
Melvin J. Sykes, with whom was Paul Berman on the brief, for appellees.  

JUDGES:
Prescott, C. J., and Horney, Sybert, Oppenheimer and Barnes, JJ.  Prescott, C. J., delivered the opinion of the Court.  

OPINIONBY:
PRESCOTT 

OPINION:

 [*530]   [***3]   [**313]  The facts with which we deal in this appeal are, for the main part, undisputed.  They may be briefly stated and they follow.  On September 27, 1953, an accident occurred on Route 301, a public highway in the State of Maryland.  One of the vehicles 

 [*531]  involved was a taxicab owned by Carl H. Campbell, then being operated by one James E. Duckett with Campbell's permission.  This latter fact is mildly disputed, but, for the purposes of this case, we shall assume it to be true.  Persons named Helms and Staples were injured in the accident.
At the time of the collision, Campbell's vehicle was insured by appellant (sometimes hereafter referred to as Amalgamated) by a policy given pursuant to the provisions of the Motor Vehicle Financial Responsibility Act. Code (1951), Article 66 1/2 § §  114, et seq., now Code (1957), Article 66 1/2, § §  116, et seq. (Sometimes hereafter referred to as "the Act," and Sections referred to by number only will refer to the 1951 Code).  The injured persons sued Duckett, and obtained judgments against him on November 19, 1956.  No appeals were taken.  On November 18, 1959, appellees brought suit against the appellant to require payment [***4]  by it, to the extent of its liability, of the judgments obtained against Duckett.
Amalgamated's policy provided, inter alia, that any person who had secured a judgment against anyone insured under the policy would be entitled to recover under the terms of the policy "in the same manner and to the same extent as the insured." It also provided that "no action shall lie against the company unless *** suit is instituted within two years and one day after date of such judgment * * *." (It will be noted that suit in the instant case was not commenced until almost three years after the judgments were obtained. n1) The latter contractual period of limitations is the only provision included in the policy which is challenged as not complying with the terms of the Act.  Although several questions were raised in the briefs and argued, our conclusion that the said condition is valid is determinative of the appeal.

n1 Different counsel represented appellees at that time.

The precise question seems to be a novel one:  [***5]  no case directly in point is cited by either side (although both sides presented carefully prepared briefs and able arguments), and we have found none.
In order to consider the question properly, we deem it necessary to set forth certain pertinent provisions of the Act.  It 

 [*532]  begins by providing that all persons who operate taxicabs (with certain exceptions not pertinent here) over the highways of this State must first obtain a permit from the Department of Motor Vehicles (Department), and the Department shall not issue such a permit until the person applying  [**314]  therefor files with the Department proof of financial responsibility. One of the permissible modes of establishing proof of financial responsibility is the filing of an insurance policy, which was done by Campbell, and is the policy involved herein.  Section 127 of the Act states the kind of policy required by the Act.  This Section is quite lengthy and deals with the subject in considerable detail.  Pertinent excerpts therefrom follow:
"A policy of insurance, as that term is used in this Article, when offered as proof of financial responsibility under this Article, shall mean an automobile public liability [***6]  and property damage policy, issued by an insurance carrier authorized by the Commissioner of Insurance *** to transact business in this State.
"A copy of the form of such policy shall be filed with the Commissioner of Insurance who shall within thirty (30) days approve or disapprove of the same.  * * *.  *** and provided further that when a policy of insurance has been issued which purports to be under the terms of this Article, or when a duly authenticated certificate of the insurance carrier has been furnished to the Department *** then such insurance carrier shall be obligated at least to the extent of the minimum requirements of this Article, any provision of the policy of insurance to the contrary notwithstanding.
***"A policy or policies of insurance shall provide insurance, in the name of the person insured, to apply to all motor vehicles owned by the person insured; and in addition thereto shall provide insurance, in the name of the person insured, to apply to any motor vehicle operated by, but not owned by the person insured.

 [*533]  "(A) Such policy of insurance shall meet the requirements enumerated hereunder when:
[There then follow six headings of requirements,  [***7]  with one of those headings having six sub-headings, spelling out in detail what the provisions which the policy or policies must contain in order to comply with the Act.  None of them provides that the period of limitations for instituting suit must be the general statutory period of limitations; in fact, no mention is made of limitations.]
***"(f) that the liability of the insurance carrier shall become absolute whenever loss or damage included in such policy occurs, and the satisfaction by the insured person of a final judgment for such loss or damage shall not be a condition precedent to the right or obligation of the carrier to make payment on account of such loss or damage.
***"(B) A policy of insurance offered as proof of financial responsibility under this Article may:
***"(5) contain any agreement, provision or stipulation not in conflict with or contrary to the provisions required in this Article and not otherwise contrary to law;
***"(E) A policy of insurance offered as proof of financial responsibility under this Article, the written application therefor, if any, and any endorsement to such policy which is not in conflict with or contrary to the provisions [***8]  required by this Article, shall constitute  [**315]  the entire contract between the parties."
Appellee's counsel frankly admit the "precise question" here involved "has not, so far as counsel are aware, been specifically decided by any court," but contend that the answer to the question being considered in appellee's favor, has been foreshadowed by the cases dealing with the philosophy and purpose 

 [*534]  of the Act, claiming that the courts have "sympathetically implemented" the general purpose of the Act and other similar acts.  With commendable thoroughness, counsel for the appellee have cited to us about all of the authorities which might tend toward supporting their contention.  They cite such cases as Casualty Co. v. Hinds, 180 Md. 676 (decided under Code [1939], Article 56, §  182); Citizens Co. v. Allied Co., 217 Md. 494; Barrella v. Stewart, 228 Md. 378; National Indemnity Co. v. Simmons, 230 Md. 234; Weinreich v. Walker, 236 Md. 290; Inland Mutual Insurance Company v. Stallings, 263 F. 2d 852 (C.A. 4); Gray v. Citizens Casualty Company of New York, 286 F. 2d 625 (C.A. 4); Olds v. General Acc. Fire & Life Assur. Corporation, 155 [***9]  P. 2d 676 (Cal. App.); and Chatfield v. Farm Bureau Mut. Auto. Ins. Co., 208 F. 2d 250 (C.A. 4).
It would serve no useful purpose to analyse, in detail, each of the above cases.  We have previously noted that none of them is directly in point.  The rationale of the Maryland cases is that the Act is remedial legislation and should be liberally construed against insurance carriers in favor of the public; that its purpose is to assure the ability of certain motor vehicle owners and operators, against whom judgments may be entered on account of negligent driving, to respond in damages to persons injured or whose property has been damaged, as a result of such negligent driving; that in Maryland, as provided by the Act, the liability of the insurance carrier becomes absolute whenever loss or damage covered in the policy occurs; that all policies given to satisfy the requirements of the Act must fully conform therewith, and, if there be any conflict between the Act and the policy, the Act prevails; and that certain defenses may be available to the insurer as against the insured, which are not so available as against an injured member of the public.  (And this seems to be the rationale [***10]  of the out-of-state authorities cited with the exception of the Olds case.) We have no desire to recede one jot or tittle from the holdings in the Maryland cases named above; on the contrary, we reaffirm the same.
However, construing a statute liberally and adding to it, by judicial fiat, a provision which the Legislature did not see fit to include are not one and the same thing.  As stated by Justice 

 [*535]  Brandeis, for the Court, in Iselin v. United States, 270 U.S. 245, 251: "What the Government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertance [in that case], may be included within its scope.  To supply omissions transcends the judicial function." This is exactly what we are requested to do here.  We are not asked to construe any specific provision of the Act, but to write into it an additional provision of something to the following effect.  Under Section 127 (A), quoted in part above, which states "such policy of insurance shall meet the requirements enumerated hereunder when:" include an added requirement that the policy shall designate, as between the insurer and [***11]  a plaintiff member of the public (as distinguished from the insured), a period of limitations equal to, or greater than, the general statutory period of limitations.
Such action on our part would, we think, be in the teeth of our previous decisions.  Of course, the cardinal rule of  [**316]  statutory construction is to seek and carry out the true intention of the Legislature.  Casey Devel. Corp. v. Montgomery County, 212 Md. 138. And in so doing, it sometimes becomes necessary, under unusual circumstances, to look to the spirit and purpose of an enactment.  Cearfoss v. State, 42 Md. 403; Bickel v. Nice, 173 Md. 1; Smith v. Higinbothom, 187 Md. 115. But Chief Judge Marbury very clearly pointed out in Clark v. Tawes, 187 Md. 195, that the rule that real intent must prevail over literal intent is adopted only when the literal words of a statute say something that the Legislature could not possibly have meant.  He said that this Court has repeatedly stated that as a general rule a court may not surmise a legislative intention contrary to the plain language of a statute, nor insert or omit words to make the statute express an intention not evidenced in its original [***12]  form. See also Pressman v. State Tax Comm., 204 Md. 78 and cases cited therein; and Fowel v. State, 206 Md. 101. And, if a statute be plain and free from ambiguity, its application may not be enlarged or extended by construction.  Grimm v. State, 212 Md. 243.
In other words, the courts, in the absence of ambiguity, should, as a general rule, confine themselves to a construction 

 [*536]  of a statute as written, and not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature.  Cf.  Himmel v. Eichengreen, 107 Md. 610; Miller v. State, 174 Md. 362; 82 C.J.S., Statutes, §  312; Schmeizl v. Schmeizl, 186 Md. 371.
In the last named case, this Court made several cogent observations.  Referring to a practice of the early English judges in disregarding the letter of a statute and extending its provisions to cases which in their judgment were within the mischief which the law was designed to remedy but which were not expressly provided for and excepting from the operation of the statute cases which were covered by its general terms, on the grounds of reason and [***13]  justice, the Court said: "But the doctrine giving the judge power to mould the statute in accordance with his notions of justice has no place in our law.  We follow the fundamental rule that a court is not at liberty to surmise a legislative intention contrary to the letter of the statute, or to indulge in the license of inserting or omitting words with the view of making the statute express an intention which is not evidenced in the original form. * * *.  *** where the language of the statute is clear and explicit, and expresses a definite and sensible meaning, the court cannot disregard the mandate of the Legislature and insert an exception, where none has been made by the Legislature, for the sake of relieving against hardship or injustice." We will close our citation of authorities on this aspect of the case with a statement of Professor Cooley, quoted with approval in Miller, supra, (174 Md. at p. 371): "What a court is to do, therefore, is to declare the law as written [referring to a constitutional provision], leaving it to the people themselves to make such changes as new circumstances may require."
In applying the above principles of law, we first consider whether [***14]  the language of the Act, pertinent to this appeal, is ambiguous.  We pointed out above that we are not requested to construe liberally an ambiguity in the Act, but to add to it a provision that is not contained therein; and, in our judgment, we can not properly be asked to construe the pertinent provisions thereof as being ambiguous.  When the Legislature provided 

 [*537]  in §  127, after stating matters that the policy "shall provide," that "such policy of insurance shall meet the requirements enumerated hereunder when" (italics ours), we think it issued a clear, explicit, and precise mandate  [**317]  that if the policy met the enumerated requirements, it was adequate and sufficient to comply with the Act, and required no additional prerequisites.  The provisions of subsection (E) seem particularly cogent here, wherein it is provided that a policy of insurance offered under the Act, the written application therefor, if any, and any endorsement thereon which is not in conflict with or contrary to the provisions required by the Act, shall constitute the entire contract between the parties.
The legislative history of the Act not only bolsters the above conclusion,  [***15]  but seems to impel it.  The initial requirement in Maryland of liability insurance for motor vehicles was enacted in 1931.  Acts of 1931, Ch. 498.  It applied to persons who had been found guilty of operating under the influence of liquor or drugs, who had caused an accident while violating the motor vehicle law resulting in death, and those who had left the scene of an accident in violation of §  196 without making known their identity.  In 1933, 1935, and 1939 the Legislature enacted statutes which resulted in the Act for the "Insurance for Commercial Motor Vehicles." Code (1939), Article 56, §  182.  This Act provided that no owner of a commercial motor vehicle, etc., should operate the same without a permit from the Commissioner of Motor Vehicles, who should not grant such a permit unless the owner "shall have provided good and sufficient security for the protection of the public * * *." One of the methods of furnishing such security was by an insurance policy, and the statute provided that the policy should be in a form to be approved by the Commissioner and "insure the owner against any judgment [within certain limits] which may be recovered against" him for personal injury [***16]  or property damage.  The statute also contained the provision, which is still retained in our law, that the liability of the insurer shall become absolute when loss or damage occurs.
While §  182 was in force and effect, two important decisions were rendered thereunder.  In 1942, this Court decided Casualty Co. v. Hinds, supra, (180 Md. 676). There, the insurance policy 

 [*538]  contained two exclusions: that the policy did not cover the motor vehicle while being operated by one under the age of 21; nor while rented to others or used to carry passengers for hire.  Judgment was obtained against the named insured in the policy, and, when the judgment was not paid, suit was entered against the insurance company and a judgment was obtained against it.  This Court affirmed the judgment on appeal, holding that the statute and the policy had to be read together, and, as the statute required the policy to insure the owner "against any judgment" recovered against him and as judgment has been so obtained, the provisions of the statute could not be frustrated by exclusionary clauses in the policy.
In 1943, after the decision in Hinds, supra, the Fourth Circuit decided the case of [***17]  Malisfski v. Indem. Ins. Co. of North America, 135 F. 2d 910, with an opinion written by Judge Parker.  In that case, the policy contained an omnibus coverage clause with an exclusion thereto that said clause should not apply to any employee of the insured with respect to any action brought against the employee because of injury to any other employee of the same insured, etc.  The case turned upon who was in fact the employer of the operator of the motor at the time it caused injury.  However, the argument made there resembles that presented in the case at bar; namely, it was contended that the effect of §  182 was to nullify the exclusionary clause of the omnibus clause, but Judge Parker said, "We see nothing in this position." He pointed out that the statute (at that time) required the policy to insure the owner against any judgment which might be recovered against him, and stated that manifestly there was nothing in the statute that required the omnibus clause, or which forbade the exclusionary provision relative thereto.
 [**318]  In 1943, the Legislature overhauled generally the motor vehicle laws of this State, and placed them in a separate Article of the Code.  [***18]  This was done after long and careful consideration by the General Assembly.  In this new enactment, the provisions of the Act of 1931 and §  182, both supra, were, at least for the main part, consolidated into what was called, and is now known as, the "Motor Vehicle Financial Responsibility Act." Without repeating what we said above, it will be noted that the 

 [*539]  provisions of Code (1939), Article 56, §  182 (the forerunner of §  127) were rather general in nature and permitted the policy's form to be approved by the Commissioner of Motor Vehicles.  However, when §  127 was adopted in 1943, the form of the policy was required to be submitted to, and approved by, the Commissioner of Insurance (with the insurer furnishing the Department of Motor Vehicles a duly authenticated certificate that a policy has been issued or a copy of the policy), and, for the first time in Maryland, the Legislature spelt out with specificity just what the policy must contain and what it may contain, and that, if it contains certain enumerated provisions, it shall meet the requirements of the Act.  It is clear to us that the Legislature, when it adopted §  127, set forth therein guides [***19]  and standards to govern the Commissioner of Insurance in passing upon the sufficiency of the forms of policies, and, if a policy contains the provisions enumerated under subsection A, it is sufficient to comply with the Act.
Our above conclusion is further bolstered by the fact that a number of states have specific statutes providing that no insurance policies shall be issued which contain agreements or stipulations requiring suits thereon to be brought within less than named periods of time, or within shorter periods of time than that required by the general statutes of limitations.  As of 1938, an annotation in 112 A.L.R. 1288, lists some eleven states as then having such statutes.  Maryland, although recognizing many years ago that insurance was a proper subject for regulation, has never, to our knowledge, had such a statute.  Also an examination of the "Uniform Vehicle Code" (1962) a publication put out by the National Committee on Uniform Traffic Laws and Ordinances as a guide for state motor vehicle laws, discloses, under its "Financial Responsibility" chapter, no recommendation that reasonable contractual periods of limitations be banned.  It scarcely seems possible that, if [***20]  the Legislature of Maryland intended that no period of limitations less than that named in the general statute of limitations should be permissible in policies given under the Act, it would have completely overlooked placing such a provision therein when it could have been done so easily.  And, of course, the present or 

 [*540]  any future Legislature may, if it deems such a requirement desirable, include the same within the terms of the Act.
This leaves for our consideration only the matter of whether the two years and a day contractual period of limitations was legal, for if it were "otherwise contrary to law" it was contrary to the provisions of the Act and void as between the parties to this appeal.  At this point, it should be noted that this provision in the policy did nothing to lessen or prevent the liability of the insurance carrier becoming absolute at the time of loss or damage; it only required the appellees to assert their claims of liability by a certain time.  Cf.  Hafer v. St. Louis Southwestern Ry. Co., 142 S. W. 176 (Ark.).  Hence, it is seen that a lack of due diligence on the part of the appellees is the sole cause of the unfortunate position in which they [***21]  now find themselves.
Provisions in insurance policies, reasonably limiting the time within which an action on the policy, must be brought, have been almost universally upheld as valid in the absence of statutory restrictions to the contrary.  The cases are collated in  [**319]  46 C.J.S., Insurance, §  1256 and in an annotation in 121 A.L.R. 776.
In Bass v. Standard Accident Ins. Co., 70 F. 2d 86 (C.A. 4), Judge Soper was dealing with Maryland law (although not considering the Act).  He stated: "It is not disputed by either party *** that the parties to an insurance contract may by its terms reasonably restrict the time within which a right thereby conferred may be exercised, even though this period may be less than that prescribed by a general statute of limitations." He upheld a period of two years as being reasonable.
A short discussion of the Olds case, supra (155 P. 2d 676), will conclude this opinion.  That case was decided twenty years ago by an intermediate appellate court of California.  A Shepardization of it in the Pacific Reporter reveals that it has been cited but once since, relative to any point here involved, and then only for the proposition [***22]  that a reasonable contractual period of limitations is permissible.  The opinion is quite lengthy and it would not be helpful to discuss it elaborately.  The factual situation was rather unusual and the statutes involved were not identical with ours.  The court held, inter alia, that a period of limitations of one year contained in an insurance policy violated 

 [*541]  "the policy [and] spirit" of a California direct action statute similar to ours found in Code (1951), Article 48A, §  80.  We think the case is distinguishable on its facts and the statutes there involved, but, to the extent, if any, that it conflicts with this opinion we decline to follow it, especially in view of Judge Soper's opinion in Bass, supra.
We hold that the two years and a day period of limitations was reasonable under the circumstances here involved, and that it was a lawful and permitted provision of the policy of insurance.
Judgments reversed without new trial; the costs in this Court and below to be paid 9/10 by the Helms and 1/10 by the Staples.  

12 of 19 DOCUMENTS 

MAULDIN v. STATE 

No. 386, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 592; 212 A.2d 502; 1965 Md. LEXIS 585 

July 30, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Prendergast, J.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Intoxication -- Chemical Tests For -- Objection To Admission Into Evidence -- Waiver -- Affirmative Consent To Test Not A Prerequisite To Admissibility Of Results.  In the instant manslaughter by automobile case the appellant contended that he did not freely and voluntarily consent to take the "chemical test for intoxication" because he was so intoxicated as to be incapable of giving consent and that, therefore, the results of the test which showed him to be intoxicated were improperly admitted into evidence against him.  However, the record showed that only after all the testimony as to the test and its results as applicable to appellant had come into evidence for consideration by the jury did appellant seek to keep it out by a motion to strike. Maryland Rule 522 d 2 provides that if an objection is not made at the time the evidence is offered or as soon as the objection becomes apparent, the objection shall be treated as waived. It was held that there was no reason in this case why the waiver provision of Rule 522 d 2 should not apply.  The Court pointed out that statutes may [***2]  constitutionally go further than does the Maryland statute.  Further, there was no claim here that appellant attempted to refuse to submit to the test and most courts hold that if there is an absence of refusal to submit to the test the failure to affirmatively or validly agree to its taking does not bar the presentation of its results into evidence.  

SYLLABUS:

Van Buren Mauldin was convicted by a jury of manslaughter by automobile and from the judgment entered thereon, he appeals.  

COUNSEL:
Russell J. White for appellant.
John C. Cooper, III, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Charles E. Moylan, Jr. and Edward Angeletti, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, on the brief, for appellee.  

JUDGES:
Hammond, Horney, Marbury, Oppenheimer and Barnes, JJ.  Hammond, J., delivered the opinion of the Court.  

OPINIONBY:
HAMMOND 

OPINION:

 [*593]   [**502]  The appellant Mauldin was convicted by a jury of manslaughter by automobile after he drove his car at terrific speed -- well over eighty miles an hour -- on the Jones  [**503]  Falls Expressway into the rear of another car and caused the death [***3]  of a woman passenger in the car that was struck.  He makes only one contention of error, a claim that he did not freely and voluntarily consent to take the "chemical test for intoxication" provided for by Code (1964 Supp.), Art. 35, Sec. 100, because he was so intoxicated as to be incapable of giving consent and that, therefore, the results of the test which showed him to be intoxicated improperly were admitted against him.
Officer Gray, who took Mauldin into custody at the scene, said he was swaying, his speech was slurred and the odor of alcohol on his breath was noticeable.  While he was taking Mauldin to the chemical laboratory at the Central Police Station to undergo the test of his blood, Officer Gray followed the direction of paragraph g of Sec. 100 of Art. 35 of the Code to an arresting officer, "to advise the person so charged [with the operation of a motor vehicle while under the influence of intoxicating liquor] that he may, but need not, submit to a chemical analysis * * *," telling Mauldin "that he could take the test or refuse it, and that it could be used for him or against him."
Officer Brennan, who conducted the test (in which the suspect breathes into a machine [***4]  which translates the alcohol detectable in the breath into the amount in the blood stream), 

 [*594]  testified that he went through an elaborate explanation to Mauldin of the purposes and effects of the test, of the fact that a refusal to take the test is permissible and will not be used in any way against the suspect, that the results can be used in court for or against the suspect, and that Mauldin said he understood fully and signed a form which incorporated all the explanation of Officer Brennan and Mauldin's replies and which Mauldin signed to indicate his agreement to take the test.
This testimony of Officer Brennan and the form signed by Mauldin came into evidence without objection, as did the results of the test (which was taken about an hour and a half after the accident) which showed a concentration of alcohol in Mauldin's blood of .20% -- paragraph (a) 3 of Sec. 100 of Art. 35 of the Code provides that a concentration of .15% or more "shall be prima facie evidence that the defendant was under the influence of intoxicating liquor" -- and as did Officer Brennan's opinion as an expert that the concentration of alcohol in the blood was greater at the time of the accident [***5]  than at the time of the test.  Only after all the testimony as to the test and its results as applicable to Mauldin had come into evidence for consideration by the jury did appellant seek to keep it out by a motion to strike. The motion was refused by Judge Prendergast because there had not been compliance with Maryland Rule 522 d 2, which provides that:
"Every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived."
We think Judge Prendergast did not err in denying the motion to strike the evidence.  Martin v. State, 203 Md. 66; Martelly v. State, 230 Md. 341, 348; Gatewood v. State, 207 Md. 374, 378.
There is no reason in this case why the waiver provision of Rule 522 d 2 should not apply.  Statutes may constitutionally go further than does the Maryland statute.  Fundamentally, no constitutional or other basic right of one accused of alcoholic intoxication in connection with or as part of a crime is affronted 

 [*595]  or infringed if chemical tests showing the degree of intoxication [***6]  are made of him without his consent, before trial, even if he is unconscious. Breithaupt v. Abram, 352 U.S. 432, 435,  [**504]  1 L. Ed. 2d 448. There the Supreme Court said:
"To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right; and certainly the test as administered here would not be considered offensive by even the most delicate [referring to Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, wherein the stomach of the accused was pumped out]."

See also Dyson v. State, 238 Md. 398, 404, as to the things to which a suspect may constitutionally be required to do before trial in aid of identification of the person or his connection with the crime.
The applicable statute, Sec. 100 of Art. 35 of the Code, makes it plain that affirmative consent to the taking of the test is not a prerequisite to its validity or to the admissibility of its results.  Paragraph c provides under the sub-title "Refusal to Submit to Test" that "no person shall be compelled to submit himself *** for the purpose of a chemical analysis [***7]  *** and no inference *** concerning either his guilt or innocence arises by reason of his refusal to submit * * *." There is no claim here that Mauldin attempted to refuse to submit to the test.
Most courts hold that if there is an absence of refusal to submit to the test the failure to affirmatively or validly agree to its taking does not bar the presentation of its results into evidence.  It has been held that the State may constitutionally require the taking of such a test as a prerequisite to the privilege of using the roads.  Walton v. City of Roanoke (Va.), 133 S. E. 2d 315; Lee v. State (Kan.), 358 P. 2d 765; State v. Bock (Ida.), 328 P. 2d 1065; Prucha v. Dept. of Motor Vehicles (Neb.), 110 N. W. 2d 75, Anno. Suspension or Revocation of Driver's License for Refusal to Take Sobriety Test, 88 A. L. R. 2d 1064. See also Touchton v. State (Fla. En 

 [*596]  Banc), 18 So. 2d 752; State v. Duguid (Ariz.), 72 P. 2d 435; Wells v. State (Ind.), 158 N. E. 2d 256, 258.
Judgment affirmed.  

13 of 19 DOCUMENTS 

JOYNER v. STATE 

No. 348, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 707; 211 A.2d 737; 1965 Md. LEXIS 609 

July 13, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Criminal Court of Baltimore; Harlan, J.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Breaking into Storehouse and Stealing Therefrom -- Evidence Was Sufficient To Convict.  

SYLLABUS:

Hubert J. Joyner was convicted in a non-jury trial of breaking into a storehouse and stealing therefrom and from the judgment entered thereon, he appeals.  

COUNSEL:
Irving B. Klitzner for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, Stuart H. Rome, Assistant Attorney General, Charles E. Moylan, Jr. and Lucy Ann Garvey, State's Attorney and Assistant State's Attorney, respectively, for Baltimore City, for appellee.  

JUDGES:
Hammond, Horney, Marbury, Sybert and Barnes, JJ.  

OPINIONBY:
PER CURIAM 

OPINION:

 [*707]   [**737]  This is another frivolous appeal.  Appellant's only contention is that the evidence was insufficient to support his conviction in a non-jury trial for breaking into a storehouse and stealing therefrom.  The State's proof showed that the police found the appellant and an accomplice in a lunchroom early one morning with 28 packs of chewing gum and $ 15.50 in nickels, taken from the establishment, as well as a screwdriver, in their pockets.  Other merchandise [***2]  was strewn about the place.  Entrance had been gained by breaking a panel and a lock on a rear door.  The trial judge was not required to believe the appellant's story 

 [*708]  that he had entered the lunchroom the evening before, when it was still open for business, had remained therein all night, and had taken no part in breaking in.  The evidence was ample to sustain the conviction.
Judgment affirmed.  

14 of 19 DOCUMENTS 

TRANS-LUX DISTRIBUTING CORPORATION v. MARYLAND STATE BOARD OF CENSORS 

No. 143, September Term, 1965 (Adv.) 

Court of Appeals of Maryland 

240 Md. 98; 213 A.2d 235; 1965 Md. LEXIS 427 

June 29, 1965, Decided 

September 27, 1965, Filed 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court of Baltimore City; Prendergast, J.  

DISPOSITION:
Order reversed, costs to be paid by appellee.  

HEADNOTES:

Censorship -- Maryland Statutory Plan, As Re-enacted by the Act of 1965, For Pre-showing Motion Picture Censorship Held Constitutional.  In the instant case it was held that the present Maryland statutory plan for pre-showing motion picture censorship was constitutional on its face.  By the Act of 1965, the General Assembly repealed and re-enacted Sec. 19 of Art. 66A of the Code and the Court felt that the new Sec. 19 now carried out the requirement set by the Supreme Court of the United States in its decision in Freedman v. Maryland that:

"*** the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution."

In addition, it was pointed out that the General Assembly also provided that [***2]  the burden of proving that the film should not be approved and licensed shall rest on the Board so that the Board, notwithstanding its character as an administrative body, must establish its disapproval by the weight of the credible evidence before the circuit court.
Censorship -- Motion Picture -- "A Stranger Knocks" Held Not Obscene Under Supreme Court Standards.  In the instant censorship case it was held that the motion picture "A Stranger Knocks" was not obscene within the meaning of the decisions of the Supreme Court of the United States.  The Court stated that the weight of the testimony -- including the film itself -- established that the film was a serious work of art, dealing with a subject of social importance and did not appeal to the prurient interest. The Court went on to state that it most certainly was not "utterly without redeeming social importance," the film "deals with sex in a manner which advocates ideas having artistic value and social importance," and "does not go beyond the customary limits of candor in the description of such matters." Nor did the film involve "thematic obscenity." Further, it was noted that the uncontradicted testimony of motion [***3]  picture critics and others indicated that the film did not transgress either local or national community standards.  Therefore, it was held that the film could not constitutionally be denied a license for exhibition by the Board of Censors.
Censorship -- Motion Picture -- "A Stranger Knocks" Held Not Obscene Under Maryland Standards Set Forth In Art. 66A, Sec. 6 Of The Code.  In the instant censorship case it was held that the motion picture "A Stranger Knocks" did not violate the standards of Art. 66A, Sec. 6 of the Code, assuming, arguendo, that they are not too vague and indefinite to be enforced at all.  The Court stated that the film itself and the other evidence established that it was not obscene under the definition of "obscenity" contained in subsection (b) of Sec. 6, that a film is obscene "if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires and if the probability of this effect is so great as to outweigh whatever other merits the film may possess".  Further, the Court stated that the film did not tend to debase or corrupt morals under the meaning of subsection (c) inasmuch [***4]  as the evidence established that the dominant purpose or effect of the film was not erotic or pornographic. Nor did it portray acts of sexual immorality, lust or lewdness, since the sexual relationships of unmarried persons were implied and, were by no means presented as desirable, acceptable or proper patterns of conduct, but rather the contrary was presented.  In conclusion, there was no contention that the film incited to crime as defined in subsection (d), and it was held that obviously it did not.  However, the Court further noted that even if the Maryland standards in Sec. 6 were violated by the film, the Board of Censors could not constitutionally refuse to license it under the Supreme Court's Roth-Alberts Rule.  

SYLLABUS:

Petition by the Maryland State Board of Censors to the Baltimore City Circuit Court for an order affirming the Board's disapproval of the Trans-Lux Distributing Corporation's request for a license to exhibit the film "A Stranger Knocks".  From the Circuit Court's order affirming the Board's finding, Trans-Lux appeals.  

COUNSEL:
J. Cookman Boyd, Jr., and Adolph Kaufman, with whom were Walter S. Levin, Leonard H. Dickstein and Weisman, Cellar,  [***5]   Allan, Spett & Sheinberg on the brief, for appellant.
Fred Oken, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and Roger D. Redden, Assistant Attorney General, on the brief, for appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Barnes, J., delivered the majority opinion of the Court.  Horney and Sybert, JJ., dissent.  Dissenting opinion by Horney, J., at page 115, infra.  

OPINIONBY:
BARNES 

OPINION:

 [*100]   [**236]  After the Supreme Court of the United States invalidated Maryland's statute n1 requiring licensing by the Maryland State Board of Censors (the Board) of motion pictures prior to their exhibition, by its decision in Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (decided March 1, 1965), n2 the General Assembly of Maryland enacted Chapter 598 of the Acts of 1965 (Act of 1965) as an emergency measure which 

 [*101]  became effective upon its signature by Governor Tawes on April 8, 1965.  The Board, on April 19, 1965 was presented by the appellant, Trans-Lux Distributing Corporation, with the motion picture "A Stranger Knocks" (the film) in order to obtain [***6]  a license. The Board reviewed the film on April 22, 1965, disapproved it under Section 6 of Article 66A and made the following finding:
"After reviewing the entire film and considering it as a whole, the Board finds that the film goes substantially beyond customary limits of candor in description and representation of sex, that it deals purposely and effectively with sex in a manner which appeals to the prurient interest, that it is without social importance, and that it lacks any identifiable artistic, cultural, thematic or other value which might be considered redemptive."

n1 Code, Article 66A, Sections 1 to 26.
n2 This case reversed our decision in Freedman v. State, 233 Md. 498, 197 A. 2d 232 (1964).

Also on April 22, the Board, pursuant to the Act of 1965, filed a petition in the Circuit Court of Baltimore City (Circuit Court) for an order affirming the Board's finding and its disapproval of the film for licensing. Judge Prendergast viewed the film on April 27, 1965, took testimony, heard [***7]  arguments and rendered an informative oral opinion on April 28 indicating that he found the Board's finding to be correct.  An order effectuating this opinion was duly signed on April 30 and an appeal taken to this Court on May 10.
We advanced the case for hearing and on June 29, 1965 viewed the film in the morning of that day, heard arguments of counsel and after conference later the same afternoon, filed a per curiam order by a majority of the Court, reversing the Circuit Court and directing that the mandate issue forthwith.  This opinion gives our reasons for our action in reversing the Circuit Court.
Three principal issues are presented to us for decision:
1. With the addition of the Act of 1965, is the Maryland statutory requirement for pre-showing censorship of motion pictures constitutional on its face?
2. Is the film obscene under the definition of obscenity established by the Supreme Court of the United States?

 [*102]  3. Apart from the federal constitutional question and assuming, arguendo, that the standards set forth in Section 6 of Article  [**237]  66A are not too vague and uncertain to be enforced constitutionally, does the film transgress the Maryland [***8]  standards?
I.
We agree with the Circuit Court that the present Maryland statutory plan for pre-showing motion picture censorship is constitutional on its face.  Prior to its decision in Freedman, the Supreme Court had indicated in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961) that a statutory requirement of submission of motion pictures in advance of exhibition was not necessarily unconstitutional under all circumstances. n3 The Supreme Court in the Freedman case held that the Maryland statute prior to the enactment of the Act of 1965 was unconstitutional as a violation of the First Amendment to the Constitution of the United States as made applicable to the States by the provisions of the Fourteenth Amendment as construed by the Supreme Court because:
1) If the Board disapproved the film, the exhibitor was required to assume the burden of instituting judicial proceedings and of persuading the court that the film was constitutionally protected expression; 2) after the Board had declined to license the film, its exhibition was prohibited pending judicial review, however long such judicial review might take; and, 3) the Maryland [***9]  statute provided no assurance of prompt judicial determination.

n3 Black and Douglas, JJ. were, and for some time have been, of the opinion that all such statutes are unconstitutional under all circumstances.

By the Act of 1965, the General Assembly repealed and reenacted Section 19 of Article 66A of the Code with the obvious intention of fully meeting the three objections set forth in the Freedman opinion.  We think the Legislature succeeded in accomplishing this result.  The new Section 19 provides that any film duly submitted to the Board for examination and licensing "shall be reviewed and approved within five (5) days, unless the Board shall disapprove" the film under the provisions of Section 6.  In the event of disapproval, the Board is required 

 [*103]  "within not later than three (3) days thereafter, to apply to the Circuit Court for Baltimore City for a judicial determination as to whether such film is obscene, or tends to debase or corrupt morals, or incite to crimes, within the meaning [***10]  of Section 6 ..." It is also required that "notice of such application shall be forthwith sent by first class mail, postage prepaid, to the address of the person presenting such film for licensing." The Circuit Court is required within five days after the filing of the application to conduct a hearing, view the film and within two days after the hearing, "enter its decree and order requiring that said film be approved and licensed or be disapproved if in violation of the provisions of said Section 6 hereof." It is further provided that if the order disapproves the film, then the person presenting the film for licensing may appeal such determination to the Court of Appeals in accordance with the Maryland Rules of Procedure, n4 and the Court of Appeals "shall advance such case upon its hearing calendar to the earliest practicable date" and in its review, the Court of Appeals "shall view the subject film." Then is added, "The burden of proving that the film should not be approved and licensed shall rest on the Board."

n4 The appeal may be entered at any time after the order is filed but not later than 30 days therefrom.

 [***11]  
We have already indicated that full procedural compliance with the Act of 1965 was had in the Circuit Court and in this Court.
The General Assembly used, in part, as a model the New York injunctive procedure involved in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957) as suggested in Mr. Justice Brennan's opinion in Freedman (see p. 740 of  [**238]  85 S. Ct.).  In our opinion, the Act of 1965 carries out the requirement in Freedman --
"*** [T]hat the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited 

 [*104]  to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution."
The General Assembly also provided, as already set forth, that the burden of proving that the film should not be approved and licensed shall rest on the Board so that the Board, notwithstanding its character as an administrative body, must establish its [***12]  disapproval by the weight of the credible evidence before the Circuit Court.  This is a statutory change of the rule we indicated was applicable to findings of the Board in Board of Censors v. Times Film, 212 Md. 454, 462, 129 A. 2d 833, 838 (1957).
II.
We now consider whether the film is obscene within the meaning of the decisions of the Supreme Court of the United States.
The case of Roth v. United States (and Alberts v. California), 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 498 (1957), and the subsequent per curiam opinions of the Supreme Court applying the Roth-Alberts Rule n5 in a summary manner, as well as relevant prior federal and state cases, have been so thoroughly and carefully analyzed and considered in the majority and dissenting opinions in the case of Monfred v. State, 226 Md. 312, 173 A. 2d 173 (1961), that we think it would serve no useful purpose to have further extended discussion of those cases.  See also the interesting and helpful discussion of the constitutional and other issues involved in this litigation in a book entitled "Censorship" by Morris L. Ernst and Alan U. Schwartz, especially Part IV, "Obscenity and the Constitution," pages [***13]  199-225.  Our task is to ascertain what, if any, additions or limitations have been declared by the Supreme Court in regard to that rule by Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793, opinions filed June 22, 1964.

n5 The Roth-Alberts test of obscenity as enunciated by Mr. Justice Brennan, for the majority of the Supreme Court is: "[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."

In Jacobellis there was a division of opinion in regard to 

 [*105]  whether the "community" involved is local or national, three justices indicating that it should be the local community, two justices indicating that it should be the national community and four justices remaining silent on this issue.  Fortunately in the case at bar, we need not resolve this thorny issue as under either theory of applicable "community," the film in this case is, in our opinion, not obscene. We, therefore,  [***14]  do not pass upon this particular issue, preferring to wait for further clarification of the issue by the Supreme Court itself.
Mr. Justice Brennan in his opinion in Jacobellis amplified and clarified the Roth-Alberts definition as follows:
1. Although motion pictures are within the constitutional guarantee of freedom of expression, obscenity is excluded from constitutional protection, but only when it is "utterly without redeeming social importance" and a work "cannot be proscribed unless it is 'utterly' without social importance.
2. "[T]he 'portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional freedom of speech and press,'" and "material  [**239]  dealing with sex in a manner which advocates ideas *** or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied constitutional protection."
3. In the first instance, there must be a finding "that the material 'goes substantially beyond customary limits of candor' in description or representation of such matters" and "in the absence of such deviation from society's [***15]  standards of decency, we do not see how any official inquiry into the alleged prurient appeal can be squared with the guarantees of the First and Fourteenth Amendments."
4. The community standard involved is a national and not a local standard.
We have concluded that the Roth-Alberts test as amplified and clarified by Mr. Justice Brennan is applicable in the case at bar, except, as we have noted, we do not find it necessary to determine whether the applicable community standard is national or local.
We turn to the facts.  The film was produced in Denmark in 1959 and was directed by the distinguished producer and director, 

 [*106]  Johan Jacobsen.  It runs for 81 minutes, and is a Danish language picture with English subtitles.  The characters are a man, played by Preben Lerdorff Rye and a woman played by Birgitte Federspiel.  There is a brief appearance of an insurance collector played by Victor Montell.
At the beginning of the film appears the language from Holy Scripture, Gen. 4:15, "And the Lord set a mark upon Cain, lest any finding him should kill him." The first scene in the film shows a burly male figure, clad in a raincoat, walking along a lonely road.  The day is [***16]  dark and there is intermittent rain.  The appearance and actions of the man suggest that he is a fugitive.  He comes upon a cottage near the sea shore, and looks it over carefully before he knocks at the door. A comely young woman answers the door and he explains that he is on vacation, has lost his way, and is looking for a place to stay.  She invites him in to dry his clothing and to stay for lunch.  While she is in the kitchen preparing lunch, he looks around the room carefully and notes that a radio is in the room.  While having lunch, he plies his hostess with questions about herself and her background.  He learns that she is alone.  To his surprise, she invites him to spend the night.  He accepts.  She motions him to a place by the fire in the living room, retires to her bedroom and locks the bedroom door. After a while, he roams the room, and learns her name from a paper he finds.  The night is passed without incident.
The following morning they breakfast together.  He inquires about visitors, bus transportation and the bus schedule.  Later he walks into the yard and, after seeing her bicycle, takes out his pocket knife and slashes the rear tire.  She comes out from the house [***17]  and they engage in conversation.  She tells him she has lived at the cottage for three years since the Second World War.  She learns he is not married and is pleased to learn this.
He then bids her farewell and leaves.  She watches as he walks away.  Later, in the cottage, she turns on the radio.  His description is being broadcast, but she appears not to hear it.  Later in the day, he returns to the cottage (having in the meantime rested in a thicket not far from the cottage to allow for the passage of time) and she smiles a welcome.  He explains that 

 [*107]  he missed the bus.  Later he caresses her as he adjusts a scarf around her neck.  She says "You mustn't," but he ignores this mild rebuke and caresses her again.  She walks away as he follows at a distance.  She goes to a bench on a hill overlooking the sea and voices a soliloquy about her dead husband whose memory continues to haunt her.  She recalls that he died under torture calling her name and that he had requested her to bury her wedding ring after his death and look for a new life.
 [**240]  In the following scene, it is evening and they talk by the open fire.  He recounts further reminiscences of his past.  He [***18]  learns that her husband is dead; that they were happy in this cottage. After she leaves the room, he asks himself, "Who is she -- I must find out." After searching the room he finds an automatic pistol in a desk drawer, and puts it in his pocket.  As this scene ends he says to himself, "I must find out all about her -- I want her."
The following morning they appear in swimming garb and walk hand in hand to the beach in front of the cottage. Her bathing suit is a one-piece one, entirely conventional.  She has on a beach robe made of toweling material.  After the swim, the woman is shown wrapped in the beach robe and carrying her wet bathing suit as the dripping water falls from it.  The man is lying on the sand and the woman walks over to him and lies down beside him.  They kiss and he fondles her.  The scene clearly implies that they are having sexual intercourse, but there is no showing of nude figures.  For the most part only the necks and shoulders of the parties are shown.  She indicates satisfaction as the scene concludes.
Thereafter she buries her wedding ring in the sand and tells him "All is well." They playfully romp around the yard and she accidentally knocks over a pile [***19]  of wood which he had previously carefully piled up.  He utters some angry words.  She speaks to him in a soothing voice, after which they kiss.
The next scene is at night with the man and woman in bed side by side.  He fondles her and inquires again about her husband.  She replies: "We came here to get away from it all.  We had a wonderful time.  Then some friends came here.  They belonged to the underground.  He also joined the Resistance.  He came and went frequently.  Then one day he came no more.  He 

 [*108]  was caught." The man says, "Life is to kill or be killed.  We have no choice." She replies, "Paul loved me.  He screamed my name as they tortured him.  The man who tortured him had a scar on his arm in the shape of an unusual bite." Surreptitiously the man rolls down his sleeve to conceal his upper arm.
The following morning it was raining.  She is dressed to go out and says she is going to the grocer's.  He tells her not to go, and after an argument, knocks her down.  He is instantly sorry.  There is a knock at the door and the man hides in the bedroom.  The person at the door is an insurance agent who has come to collect the premium on her fire insurance policy.  The [***20]  man in the bedroom with the door slightly ajar, has the pistol in his hand ready for use if the caller is looking for him.  She goes to her desk to write a check to pay the premium and finds the pistol gone.  The insurance agent leaves and the man emerges from her bedroom.  He explains that he hid for her sake to avoid gossip.  She is now alarmed, and continues to search for the pistol.
The next scene shows them on the couch in the living room, fully dressed, in each other's arms.  She asks him about the pistol but he gives no clear answer.  She rises to pour some wine from a small decanter and each drinks some of the wine.  He lies down on the couch.  The next scene shows her astride him and again the movements of the parties imply that sexual intercourse is being performed.  They are both fully clothed.  She kisses him and says "I love you." As she reaches a climax the bite-shaped scar on the man's arm is revealed.  She realizes that he is her husband's murderer, and falls back in anguish.  She falls backward and lies over the man.  He is still on his back.
She then arises, recovers the pistol from his jacket pocket and goes into the kitchen and asks herself what she should do.  [***21]  "He must confess," she says.  He calls to her and they talk.  She offers to go away with him and says "I must know you completely." He notices that she acts strangely  [**241]  and then goes to his jacket, finding the pistol gone.
In the final scene, she points the pistol at him and asks "Why"?  He scorns her and demands that she give him the pistol. She aims it at him and says "Talk about Paul." He reminds 

 [*109]  her that they love each other.  She says "You used me.  You are loathsome," and again demands "Tell me about Paul." She is horrified as he admits that he was a collaborator with the Nazi SS during the war and that they tortured and killed her husband.  "We shot him in the neck." She lowers the pistol. He does not seek to take it from her but throws a glass of wine in her face and runs to the door. As he is about to run out the door, she shoots him in the back.  As he dies he says, "One animal kills another." With the pistol still in her hand she goes out the door and walking slowly down the path casts the pistol to one side as the film ends.
In addition to the film, produced by the Board in the lower court, the following evidence was produced by Trans-Lux: The [***22]  United States Bureau of Customs under the Tariff Act of 1930 admitted the film for entry into the United States after the Bureau had determined that the film was not obscene. Early in 1963, the film was exhibited in over 150 theatres in 23 States and the District of Columbia.  It has been viewed by not less than 250,000 persons without any untoward incidents.  When first exhibited in Denmark, the film was awarded three "Bodils" (equivalent to an "Oscar" in the United States) as 1) the best Danish picture for the year 1959, 2) for the best female performance for that year, and 3) for the best male performance for the year.  In January 1964, the International Film Importers and Distributors of America awarded Birgitte Federspiel, the female lead in the film, its award for the best performance of the year by a female actress in an imported foreign picture. The film was licensed by the appropriate authorities for exhibition in Chicago and has been exhibited in that City.
The director and producer of the film, Johan Jacobsen, in his affidavit admitted into evidence, stated that he has been a director and producer of films for 26 years, has produced 34 films and directed 25 films and [***23]  twice has received all three awards from the Danish Film Critics -- one in "The Soldier and Jenny," and again in "A Stranger Knocks," the film involved in this case.  The film opened in Copenhagen and ran for 15 weeks.  He explained that his primary interest was in the maintenance of the high standard for which Danish films are noted, rather than profits, per se, and "I have never been in a position wherein 

 [*110]  I had to descend to the level of exploiting sexual activity on the screen for the sole motive of sensationalism.  My reputation stands as testimony of this statement." He further stated: "I was frankly shocked to learn that the censors concluded that this film which I intended as a serious treatment of a question of vital contemporary importance was nothing more than an exercise in 'obscenity.' Let me make it very plain that it was not intended, nor was any part of it intended to appeal to the sensation seeker or to the prurient interest."
Mr. Jacobsen gives in some detail the philosophical basis for the film and how the two scenes, to which objection has been raised, were of crucial significance in the film as a work of art and as a serious film. The first scene [***24]  shows the complete commitment of two antithetical characters -- the woman having the idealistic, the man the cynical and pragmatic character -- in achieving a harmony and in the awakening of life and hope.  The second scene shows the supreme effort of the woman to break down the barrier which suspicion has created and represents a desperate effort by the woman, threatened again with isolation, to communicate.  By her actions she assumes the position of dominance and of total commitment to the man as well as the protectiveness of the female. The man, detached and triumphant and yet moved to tenderness, is insulated by this all-embracing love  [**242]  from the brutality and corruption of the world with which he could not cope.  At the moment of sexual fulfillment, the discovery is made that the man is her husband's murderer.  The groan of pleasure and of pain is the dramatic expression of the essential ambivalence in the relationship.
Favorable criticisms from the following motion picture critics, were introduced into evidence:
George Browning who has written reviews for the Baltimore News Post, News American, the United Press, the New York World Telegram, the Box Office, Motion [***25]  Picture Daily and the Film Daily.
Bosley Crowther, leading motion picture critic for the New York Times.
Alton Cook, reviewer for the New York World Telegram and Sun.
Marion Simon, reviewer for The National Observer.

 [*111]  Margo Miller, reviewer for The Boston Globe.
Kathleen Carroll, reviewer for the New York Daily News.  Frederick H. Guidry, reviewer for The Christian Science Monitor.
Elinor Hughes, reviewer for The Boston-Herald.
Henry T. Murdock, reviewer for The Philadelphia Inquirer.
Hollins Alpert, reviewer for The Saturday Review of Literature and who has written motion picture articles for the New York Times Magazine, Theatre Arts, Esquire, Charm, Partisan Review and other magazines.
In addition to these critics, Trans-Lux introduced an affidavit of Arthur Mayer, head of the Paramount Publishing and Advertising Department for 40 years and an operator of hundreds of theatres during that period, who is a frequent contributor to The Saturday Review and Variety and who has lectured at a number of prominent universities and schools.  In this affidavit, Mr. Mayer gave his opinion that the film "is a serious work which is written, directed and acted with professional [***26]  competence" and that the appeal of the film -- and of the two scenes complained of -- is not to the prurient interest. He further stated: "While the film undoubtedly explores a close intimacy between a man and a woman in sexual terms, I do not believe that the subject is handled in such a fashion as to offend any reasonable and mature man or woman. In short, it is my opinion that this film, rather than appealing to the prurient interest, is a work of professional competence which explores a moral problem of genuine contemporary significance."
A portion of Marion Simon's review may be quoted to illustrate the critical opinion.  It stated, in part:
"There's nothing lewd about this stark two-character drama of love, hatred, and revenge in postwar Denmark.  * * *."
"Birgitte Federspiel -- gracefully long-limbed, with a face like Claudette Colbert's -- remains discreetly clothed throughout, except for one beach scene where the black-and-white camera is glued to her face.  Preben Lerdorff Rye is almost Victorian as the hunted former Nazi collaborator who comes knocking at Miss 

 [*112]  Federspiel's isolated cottage, where she has lived for three years in bitter tribute to a husband [***27]  murdered for his war activities in the Danish underground.
"Here they play out their parable of Cain's exile under Mr. Jacobsen's taut, realistic direction, deftly probing the questions of good and evil, spite and respite that Finn Metherling has woven into his screen-play.  And the two debated scences [scenes] are so much a part of the relationship between these two people -- man and woman, killer and victim, judged and judging -- that the  [**243]  film couldn't have been made without them."
The Board offered no evidence before the lower court of any expert or other opinion indicating that the film appealed to the prurient interest or was not a serious work of art.  It only offered in evidence the film itself, contending that the two scenes complained of in the film met the burden of proof imposed upon it by the Act of 1965.  We do not agree.  In our opinion the weight of the testimony -- including the film itself -- establishes that the film is a serious work of art, dealing with a subject of social importance and does not appeal to the prurient interest. It most certainly is not "utterly without redeeming social importance," the film "deals with sex in a manner [***28]  which advocates ideas having artistic value and social importance," and "does not go beyond the customary limits of candor in the description of such matters." The film may not constitutionally be denied a license for exhibition by the Board under the Roth-Alberts Rule as amplified and explained by Mr. Justice Brennan in Jacobellis. n6

n6 The film had a curious legal history in New York.  In that State the Board of Regents of the University of New York (corresponding to the Maryland Board for pre-showing censorship of motion pictures) declined to license the film. Its action was reversed by the Supreme Court, Appellate Division, Third Department by a 4 to 1 decision Presiding Judge Bergan being with the majority and Judge Herlighy writing a dissenting opinion.  See Trans-Lux Distributing Corp. v. Board of Regents, 244 N.Y.S. 2d 333. Thereafter on appeal to the Court of Appeals of New York (certiorari having been granted), Judge Bergan who, in the meantime had been elevated to the Court of Appeals, was disqualified to hear the appeal.  The judges of the Court of Appeals of New York divided 3 to 3, Desmond, C. J., Burke and Scileppi, JJ. being for reversal of the Appellate Division and reinstatement of the order of the Board of Regents, and Dye, Fuld and Van Vorhis, JJ. being for affirmance.  Under the provisions of the New York Constitution, Judge Williams of the Appellate Division, Third Department, was called up to sit with the Court of Appeals, the case was reargued, and Judge Williams cast his vote for reversal so that the Appellate Division was reversed, 4 to 3 (see Trans-Lux Distr. Corp. v. Board, 14 N. Y. 2d 88) although ironically a majority of the Court of Appeals as then constituted if Judge Bergan were included, was of the contrary opinion, Judge Bergan having voted for reversal of the Board of Regents when a member of the Appellate Division.  The Supreme Court of the United States granted certiorari, and reversed the Court of Appeals in a per curiam opinion filed March 15, 1965 referring to Freedman v. State of Maryland, decided March 1, 1965.  As a result of this action by the Supreme Court the film was thereafter exhibited in New York.

 [***29]  

 [*113]  There is no "thematic obscenity" involved in the film, as was urged (unsuccessfully before the Supreme Court) in regard to "Lady Chatterley's Lover" n7 -- approval of adultery -- and "The Miracle" n8 -- alleged approval of blasphemy.

n7 Commercial Picture Corp. v. Regents, 346 U.S. 587, 74 S. Ct. 286, 98 L. Ed. 329 (1954).
n8 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S. Ct. 777, 96 L. Ed. 1098 (1952).

In the case at bar, the film begins with a quotation from Holy Writ and ends with the death of the man, with the woman facing a possible murder charge.  This is not calculated to indicate approval of sexual relations outside of wedlock, but rather the contrary.
In regard to "community standards," George Browning, the motion picture critic who lives in Baltimore and has written reviews for Baltimore newspapers for many years testified that in his opinion the film did not transgress present day community standards and this testimony was not contradicted.  The uncontradicted testimony of the [***30]  other critics, the producer already referred to, and other testimony mentioned above, indicate that the film does not transgress national community standards.  As the film does not violate either community  [**244]  standard we need not decide which community standard applies.

 [*114]  III.
In our opinion, the film does not violate the standards of Article 66A, Section 6, assuming, arguendo, that they are not too vague and indefinite to be enforced at all.
The definition of "obscenity" in subsection (b) is that the film is obscene "if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires and if the probability of this effect is so great as to outweigh whatever other merits the film may possess." (Emphasis supplied).  It seems clear to us from what has already been stated that both the film itself and the other evidence establishes that it is not obscene under this definition. n9

n9 We held that nudity, as such, was not obscene under Section 6 in Fanfare Films v. Censor Board, 234 Md. 10, 197 A. 2d 839 (1964) involving the motion picture "Have Figure -- Will Travel," following our decision in Board of Censors v. Times Film, 212 Md. 454, 129 A. 2d 833 (1957). In the case at bar, however, there is no nudity involved.

 [***31]  
Subsection (c) in defining what films tend to debase or corrupt morals states this is its effect "if its dominant purpose or effect is erotic or pornographic; or if it portrays acts of sexual immorality, lust or lewdness, or if it expressly or impliedly presents such acts as desirable, acceptable or proper patterns of conduct." (Emphasis supplied).  Here again the film and other evidence establishes that the dominant purpose or effect is not erotic or pornographic. Nor does it portray acts of sexual immorality, lust or lewdness, as the sexual relationships of unmarried persons are implied and, as already noted, the implied sexual relations are by no means presented as desirable, acceptable or proper patterns of conduct, but rather the contrary is presented.
There is no contention that the film incites to crime as defined in Subsection (d), and obviously it does not.
As we have indicated, however, even if the Maryland standards in Section 6 were violated by the film, the Board could not constitutionally refuse to license it under the Roth-Alberts Rule, as amplified and explained, and the finding of the lower court to the contrary was clearly erroneous and [***32]  its order must be reversed.  

DISSENTBY:
HORNEY 

DISSENT:

 [*115]  Horney, J., filed the following dissenting opinion, in which Sybert, J., concurred before retirement.
It seems to me that the majority of the members of this Court, in approving a film portraying overt acts of illicit sexual intercourse, has gone further than even the majority of the Supreme Court of the United States has required, and, in so doing, has disregarded the Maryland statute which prohibits the showing of unlawful and immoral sexual relations.  If such illicit acts are not obscene, it is difficult to envisage what, other than hard-core pornography, would constitute obscenity.
In my opinion, the order of the lower court affirming the refusal of the State Board of Censors to license the motion picture, "A Stranger Knocks," should not have been reversed.  For, when these illicit acts of sexual gratification, the elimination of which, as the producer admitted, "would virtually destroy the film as a serious motion picture," are considered (either with or without the remainder of the film), it is clear that the dominant effect of the film, even assuming this was not its calculated purpose, is to arouse lascivious thoughts [***33]  or desires which is expressly prohibited by §  6(b) of Art. 66A.  Surely, a film such as this, wherein the exhibition of inhibited  [**245]  acts of sexual immorality between an unmarried man and woman leaves nothing to be surmised, will indubitably be taken by the viewing public as sanctioning or approving such acts as desirable, acceptable or proper patterns of behavior contrary to the provisions of §  6(c) of Art. 66A.  Such a portrayal of immorality can hardly be said, as the majority hold, to be a serious work of art dealing with a subject of social importance that does not appeal to prurient interest.
On the contrary, for the reasons stated above, it seems obvious to me that the film goes far beyond what is permitted under the Roth-Alberts test -- set forth in Roth v. United States (and Alberts v. California), 354 U.S. 476 (1957) -- which, as amplified in Jacobellis v. Ohio, 378 U.S. 184 (1964), is still the law of the land, and the standards to be applied in determining what is and what is not obscene are still those of the local community and not those of the nation as a whole.  Furthermore, it should be pointed out that the case at bar is clearly distinguishable [***34]  from Jacobellis on the facts in that in Jacobellis 

 [*116]  the sexual act was a fleeting one while in this case both acts were not only protracted but were deliberately over-emphasized by extraordinary demonstrations of satisfaction on the part of the female participant.  Other than this, as Judge Prendergast pointed out, there is a vast difference between what is written as poetry or prose and that which is vividly portrayed on a motion picture screen.  On the one hand that which is written may be so phrased as not to be erotic or pornographic, while on the other hand sexual activity shown on a screen could be, as it was here, unlawful obscenity.
Judge Sybert, who participated in the consideration of this case, collaborated in the writing of this dissent before his retirement.  

15 of 19 DOCUMENTS 

RAMSEY v. STATE 

No. 378, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 561; 212 A.2d 319; 1965 Md. LEXIS 581 

July 29, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Prince George's County; Digges, J.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Criminal Law -- Evidence -- Defendant Cannot Explicitly Withdraw Objection To References To Other Pending Charges As Part Of Trial Strategy And Thereafter Claim Denial Of Due Process -- Also, Court Has Held That Rule Of Admission Of Other Crimes Is Rule Of Evidence And Not Rule Of Constitutional Law.
Criminal Law -- Reference Of Psychiatrist To Effect That Defendant Told Him He Had Confessed, If Error, Was Harmless -- Witness Also Stated Defendant Told Him Confession Was Not True -- Confession Was Later Properly Introduced Into Evidence.
Criminal Law -- Confessions -- Where Freely And Voluntarily Made, Held Properly Admitted.
Criminal Law -- Identification -- Claim Of Prejudice Resulting From Sheriff Showing Defendant To State's Witness Before Trial Considered Frivolous -- Even After Being Shown Accused, Witness Was Unable To Make Identification With Certainty, His Testimony As To Identity Was Stricken.
Criminal Law -- Psychiatrists' Testimony As To Meaning Of "Spencer Rule" -- No Objection Was Made, Hence Question Was Not Properly Before Court -- While It  [***2]   Is Better Not To Have Doctor-Witness Express View As To Meaning Of Rule, No Harm Resulted To Accused Since Doctors Knew And Applied Standards Contained In Rule -- Court Explained To Jury Requirements Of Rule And Duty Of State In Establishing Sanity When Insanity Is Pleaded.
Trial by Jury -- Testimony Of Two Psychiatrists As To Accused's Sanity Was Sufficient To Take Issue Of Sanity To Jury -- This Court Does Not Weigh Evidence Presented To Jury.
Criminal Law -- Attorneys -- Claim That Counsel Did Not Spend Sufficient Time Interviewing Accused Was Without Merit -- No Complaint As To This Fact Or Quality Of Representation Was Made Below.
Criminal Law -- Arraignment -- Although Counsel Was Not Present, It Was Not A Critical Stage Of Proceeding, No Prejudice Resulted To Accused Thereat -- There Was Substantial Compliance With Rule 719 And Full Protection Of Rights Of Accused To Fair And Impartial Trial In Which He Was Represented By Counsel -- Rule 725 Protects Defendant In Regard To Any Challenge To Preliminary Proceedings.  

SYLLABUS:

Paul Norman Ramsey was convicted of armed robbery by a jury and from the judgment entered thereon, he appeals.  

COUNSEL:
Submitted on brief by  [***3]  William A. Ehrmantraut, John J. Mitchell and Edward C. Donahue for appellant.
Submitted on brief by Thomas B. Finan, Attorney General, Robert J. Martineau, Assistant Attorney General, and Arthur A. Marshall, Jr., State's Attorney for Prince George's County, for appellee.  

JUDGES:
The entire Court.  Prescott, C. J., delivered the opinion of the Court.  

OPINIONBY:
PRESCOTT 

OPINION:

 [*563]   [**321]  Appellant was convicted of armed robbery by a jury in the Circuit Court for Prince George's County, and, after sentence, he has appealed as an indigent.
Seven questions have been raised and they will be considered and decided seriatim.
Appellant was arrested in Virginia and returned to Maryland by the Montgomery County police, and, after questioning, he confessed to them that he had participated in the Prince 

 [*564]  George's County robbery. Additional facts will be stated when the questions are considered.
I
Appellant first contends that he was denied due process of law because one of the State's witnesses referred in his testimony to other crimes with which appellant had been charged, and another State's witness, a psychiatrist, mentioned that appellant told him that [***4]  he had confessed to the commission of the offense for which he was being tried, but the confession was untrue.  In regard to the charge relative to other crimes, he argues that this was a violation of the rule which makes inadmissible testimony concerning other crimes which a defendant has committed, or has been charged with, before the defendant's crediibility has been placed in issue by his taking the stand (we do not intimate that crimes of which a defendant had not been convicted, with certain exceptions, ordinarily would be admissible even though he does take the stand).
There are several answers to the above claims.  First, before any mention was made of the then two pending charges of robbery in Montgomery County (the only ones mentioned), counsel for the appellant (who does not represent him in this appeal) approached the bench beyond the jury's hearing, and informed the trial judge of the other pending charges and said he wished to register an objection to any mention being made of them.  After a short colloquy with the court, counsel, obviously believing that defendant's attack on the admissibility of, and the weight to be given to, his confession would be benefited by the [***5]  jury having all of the facts, specifically and deliberately withdrew any objection to reference being made to the other pending charges.  The assertion of even constitutional claims may, under certain circumstances, be foreclosed as a part of trial strategy.  Henry v. Mississippi, 379 U.S. 443. However, this Court has held that the rule of the admission, vel non, of other crimes is merely a rule of evidence and not a rule of constitutional law.  Baltimore Radio Show, Inc. v. State, 193 Md. 300. The defendant in a criminal case cannot have his cake and eat it too: he cannot explicitly withdraw an objection, because he sees a trial advantage to him by such withdrawal, and thereafter claim, on appeal, that his rights have been violated.

 [*565]  The reference of the psychiatrist to the effect that appellant had told him that he had confessed, if error, was harmless.  The psychiatrist immediately stated that defendant told him the confession was not true, and the confession, itself, was later properly introduced into evidence.  Baltimore Radio Show, Inc., supra.
II
Next, the appellant claims his confession was inadmissible, relying upon Escobedo  [**322]   [***6]  v. Ilinois, 378 U.S. 478. There is no evidence to show whether or not the police specifically advised the defendant of his right to remain silent or of his right to counsel; however, there was no evidence that he requested counsel or was denied the right to obtain the same.  Although appellant claimed that one of the officers threatened to involve his wife and child in the commission of the crime and this induced him to confess, this was flatly denied by the officer, who testified further that no threats, promises, or inducements of any kind were made or held out to the accused.  In fact, the officer did not know of the Prince George's County offense until the appellant told him of it.  No lengthy detentions or interrogations were claimed.  The trial judge concluded that the confession had been freely and voluntarily made and admitted it.  We hold that his action was correct.  Until more specific light is given by the Supreme Court on the subject under consideration, we adhere to our previous decisions.  Mefford and Blackburn v. State, 235 Md. 497, cert. den. 380 U.S. 937. Cowans and Hayes v. State, 238 Md. 433; Green v. State, 236 Md. 334; McCoy v. State, 236 [***7]  Md. 632. Cf. Jones v. State, 229 Md. 165.
III
This contention is of a rather frivolous nature.  Appellant complains that he was prejudiced by the Sheriff showing him to one of the State's witnesses on the morning of the trial.  Even after being shown the accused, the witness was unable to identify him with sufficient certainty so the court struck out the witness' testimony relative to identity.  Obviously, the claim is without merit.  Appellant's brief makes reference to the State's witness Herbert having seen "appellant before trial." There is nothing in the record extract (other than the witness' relation 

 [*566]  of the commission of the crime) to show that this witness ever saw the defendant before trial, and, if so, the circumstances under which he was seen; consequently, we do not pursue the matter further.
IV
This contention also is of a somewhat frivolous nature.  Appellant here assigns as error the fact that two psychiatrists called by the State testified as to their understanding of what the "Spencer Rule" meant.  No contention is made that either misstated the rule.
Again, there are several answers to the assignment of error.  First, no objection was made to [***8]  the psychiatrists giving their opinions; hence the question is not properly before us for consideration.  Maryland Rule 885.
There can be little doubt that the prevailing and the better practice is not to have the doctor-witness express his view as to what the "Spencer Rule" means, but to encompass within a question calling for the doctor's opinion relative to the sanity of an accused the requirements of mental capacity under that Rule necessary to hold an accused responsible to the criminal law for his actions.  It is manifest, however, that no harm could befall an accused under either method; provided the doctor knew and applied the standards contained in the Rule, which both doctors did in the case at bar.  In addition, Judge Digges carefully explained to the jury the requirements of the Rule and the duty of the State in establishing sanity when insanity is pleaded. (Incidentally, counsel for the accused and the accused, who insisted upon the last two contentions to be considered being included in his brief, have paid the trial judge a silent compliment herein.  Although seven contentions are made, some of rather flimsy stature, no complaint is made concerning any portion of the [***9]  charge!) We hold that no harmful error has been shown under this heading.
 [**323]  V
This question gives us little difficulty.  Appellant claims that there was insufficient evidence for the jury to have found him to be sane at the time of the commission of the crime.  The case was tried by a jury.  When a case is tried by a jury, the Court 

 [*567]  of Appeals does not weigh the evidence presented to the jury, but only determines its sufficiency to take a particular issue, or the entire case, to the jury.  Cf. Briley v. State, 212 Md. 445, and Tull v. State, 230 Md. 596, and cases cited therein.  In the case at bar, two psychiatrists, who were the only medical witnesses offered relative to the accused's sanity, testified he was sane at the time the offense was committed.  Obviously, their testimony was sufficient to take the issue of sanity to the jury for final determination.
VI
This and the final contention of appellant is included in his brief at his insistence.  He complains that his counsel did not spend sufficient time in interviewing him.  There is nothing in the record relative thereto except a bald allegation of appellant in his brief.  No complaint concerning [***10]  this fact or the quality of his representation by counsel was registered with the trial court.  An examination of the record discloses that trial counsel was alert in his cross-examination of witnesses and offered all of the testimony favorable to the defendant which was at his command.  Whether or not a different course had been pursued relative to the trial tactic considered under Contention I would have produced any substantial benefit to the appellant will probably never be known.  We do observe, however, that when a man goes into a place of business, with another man (each with a pistol), and with guns pointed takes money belonging to another and then voluntarily confesses to the police that he did so, no easy task is presented to defense counsel, who is expected to exonerate the defendant.  We hold that the contention is without merit.
VII
This final contention is devoid of merit.  Appellant was indicted on May 4, 1964.  He was arraigned on May 14, 1964, and, as he appeared in court without counsel, the trial court advised him of his right to counsel, ordered a plea of not guilty entered in his behalf, and an election of a jury trial (which, of course, could be changed by the [***11]  defendant at any time before trial).  Compare Maryland Rule 719.  On the same day, counsel was appointed for him.  On May 25, 1964, appellant entered 

 [*568]  additional pleas of insanity, and, after being sent to the State Hospital in accordance with Code (1957), Article 59, §  9, for psychiatric examination, he was returned and tried by Chief Judge Digges with a jury.  His pleas were not guilty, not guilty by reason of insanity at the time of the alleged offense, and insane at the time of trial, all of which were fully explored and presented to the jury for determination.
The above manifestly discloses at least a substantial compliance with Maryland Rule 719, Gouker v. State, 224 Md. 524, and a full and complete protection of all of the rights of the appellant to a fair and impartial trial in which he was represented by counsel.  In Maryland, an arraignment has never been considered a critical stage of the proceedings at which counsel for the accused must be present (compare Hamilton v. Alabama, 368 U.S. 52), so long as no prejudice to the accused results such as the acceptance of a guilty plea.  Maryland Rule 725 adequately protects every defendant in regard to any motion [***12]  or challenge to the preliminary proceedings.  As indicated above, we find this claim has no merit.
Judgment affirmed.  

16 of 19 DOCUMENTS 

SOUTHERN MARYLAND ELECTRIC COOPERATIVE, INC. v. BLANCHARD 

No. 227, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 481; 212 A.2d 301; 1965 Md. LEXIS 573 

July 14, 1965, Decided 

SUBSEQUENT HISTORY:
 [***1]  
Motion for Rehearing Filed August 12, 1965, Denied September 17, 1965.  

PRIOR HISTORY:
Appeal from the Circuit Court for St. Mary's County; Dorsey, J.  

DISPOSITION:
Judgment reversed, without a new trial; appellee to pay the costs.  

HEADNOTES:

Negligence -- Contributory -- Electric Power Lines -- Appellee Was Charged With Knowledge Of.  The appellee in this case sued the appellant for the injuries he sustained when a television antenna he was attempting to install on top of his trailer came in contact with an uninsulated electric wire belonging to appellant.  It was held that irrespective of whether appellee had actual knowledge of the presence of the wire, he was charged with such knowledge because the wire was in plain view. Thus he was guilty of contributory negligence as a matter of law and consequently, barred from recovery.  

SYLLABUS:

Action in tort by Rudolph W. Blanchard against the Southern Maryland Electric Cooperative, Inc., for injuries sustained by the plaintiff when he came in contact with an uninsulated electric wire owned by the defendant.  From a verdict in favor of the plaintiff and the judgment entered thereon, the defendant appeals.  

COUNSEL:
John A. Beck (on both arguments),  [***2]  with whom was Robert E. Wigginton on the brief, for appellant.
Ferdinand J. Mack (on both arguments), with whom were Arthur J. Hilland, James E. Hogan and Paul J. Bailey on the brief, for appellee.  

JUDGES:
The cause was argued on March 3, 1965 before Prescott, C. J., and Horney, Sybert, Oppenheimer and Barnes, JJ., and reargued on June 2, 1965 before Prescott, C. J., and Hammond, Horney, Marbury, Sybert, Oppenheimer and Barnes, JJ.  Prescott, C. J., delivered the majority opinion of the Court.  Horney, Oppenheimer and Barnes, JJ., dissent.  Dissenting opinion by Horney, J., at page 492 infra.  

OPINIONBY:
PRESCOTT 

OPINION:

 [*482]   [**302]  In this tort action brought by Rudolph W. Blanchard (plaintiff-appellee) against the Southern Maryland Electric Cooperative, Inc. (defendant-appellant) for the injuries he sustained when a television antenna he was holding came in contact with an uninsulated electric wire belonging to the cooperative, the jury found for the plaintiff in the sum of $ 25,000 and the defendant appealed from the judgment entered on the verdict.
Several questions are raised, but, in the view we take of the case, only one needs to be answered: Was the [***3]  appellee guilty of contributory negligence as a matter of law?
On January 4, 1963, the plaintiff, an intelligent signalman in the United States Navy with unimpaired vision, rented a trailer in Hood's Trailer Park in St. Mary's County.  While living in the rented trailer, he purchased a new trailer from the owner of the park.  This new trailer was delivered during the latter part of January, and it was placed in the same row of trailers as the one then being occupied by the plaintiff.  Shortly thereafter, he and his family moved into the new one.  On or about February 7, 1963, just a couple of days before his accident, the plaintiff obtained a 4" by 4" aluminum pole, 16' in length, and borrowed a post hole digger from Mr. Hood, who operated a service station and general store adjacent to the trailer park. Plaintiff dug a hole 3' deep and erected the pole at the rear of the trailer in order to run a telephone line into his bedroom window.  After being placed in the ground, the pole stood approximately 13', 

 [*483]  4" in height, and it was approximately 2' from the rear of the trailer. The top of the pole was about 3' above the top of the trailer, which was 10' from the ground.  [***4]  Plaintiff testified that  [**303]  he arrived home about 5:00 p.m. on the day he erected this pole. Arranging to have Hood obtain the pole, taking the pole from the store to his trailer, and going to Hood's garbage shed and his barn to obtain the necessary tools required several trips to and from his trailer to Hood's store and its vicinity.  The whole operation of erecting the pole consumed some 30 to 40 minutes.  During this time, plaintiff was working almost immediately under the wire which caused his injury.
This wire was 22 1/2' above the ground.  Four feet below it was a neutral, or ground, wire. These wires ran athwart the top of the trailer at a point some 18" inside the rear thereof.  Below these wires were other electric ones close to the top of the trailer, which were insulated. The latter are not involved in this suit.  The wires had been placed there several years before upon the establishment of the trailer park, and had remained there, in plain, unobscured view, ever since.
On the morning of February 9, 1963, the plaintiff purchased a new television set.  During the early afternoon, he went to Hood's general store and purchased a metal antenna kit.  Thereafter,  [***5]  he borrowed a 16' aluminum ladder and sufficient tools (all of which he personally carried to the rear of the trailer) to assemble and install the antenna. These operations required a "few" trips to and from the trailer to the store and tool sheds.  He assembled the antenna on the ground near the base of the telephone pole, almost directly under the wire from which he received his injury.  When assembled, the antenna top consisted of two sets of prongs measuring approximately 3' 8 1/2" each in length.  The antenna top was attached to a metal pole 10' 1 1/2" long.  The plaintiff then attached metal brackets near the top of his telephone pole to hold the metal pole of the television antenna.
Plaintiff had leaned the 16' ladder against the rear of the trailer, and, after assembling the antenna, he grasped it near the bottom of the metal pole and started backing (or "sidling") up the ladder. He intended to insert the lower end of the antenna pole into the bracket at the top of the telephone pole. In 

 [*484]  ascending the ladder he noticed the several insulated wires running over the top and near the rear of his trailer and said he took precautions to avoid them.  When his hands [***6]  were at a level near the top of the 13' telephone pole, he swung the 10' metal antenna pole upward for the purpose of inserting the end into the top bracket on the telephone pole. During this maneuver one of the prongs at the top of the antenna came into contact with the defendant's electric wire, and resulted in the injuries complained of.  There were no witnesses to the accident.
Plaintiff testified that at no time during his over-a-month's residency at the trailer park, which included the time of the installation of the telephone pole and the assembly and attempted erection of the antenna, did he ever see, or become aware of the wire which caused his injury.  He was, however, fully aware of the dangers of electricity and electric wires; and had received extensive training in the use of his eyes as a signalman.
In attempting to explain his not seeing the wire, the plaintiff testified that during his residency at the trailer park he had usually left for work early in the morning and returned therefrom rather late; that the weather had not been conducive to exploration; and that he had been confined to his trailer by the flu for about two weeks and had not been able to assist in [***7]  the moving from one trailer to the other.
Much stress is laid in appellees' brief upon the sun's preventing his seeing the wire, and a minority of this Court feels that this factor is the one which should take the question of contributory negligence to the jury; hence it seems appropriate to set forth all of appellee's testimony relative thereto.  He stated that the accident occurred at about 3:00 p.m. on a Saturday afternoon, when the weather was  [**304]  "cloudy, broken clouds." Later he said the sun was out because he remembered "it glaring into my eyes when I first [italics added] looked up in that direction [towards the wires]," and the "sun was shining off and on." Thereafter he admitted: "I didn't look straight up [when he was ascending the ladder -- almost straight up was where the wire was].  I had no reason to look straight up.  I was interested in the top of the pole [upon which he intended to place the antenna]." He further testified as follows: "[When ascending the ladder] all I had my eyes on was this pole here with the brackets on it 

 [*485]  because I had to figure out how far up the ladder I had to go in order to get the [antenna] pole in the [***8]  bracket." And when asked the question, "You were not looking at the sun [as you climbed the ladder and got ready to insert the antenna], were you?," he flatly replied, "Not at that time, no sir." Further he stated that in his pre-trial deposition, although he had testified "describing what [he] did and what happened [at the time of the accident]," he did not "mention the sun or mention the sun getting in [his] eyes."
For the purposes of this case, we assume, without deciding, that the defendant was guilty of primary negligence, and proceed to a consideration of whether the evidence established that plaintiff was guilty of contributory negligence as a matter of law. We are constrained to hold that our previous decisions, as well as the authorities elsewhere, impel a ruling that he was.
It may readily be conceded that as a general rule the questions of primary and contributory negligence are for the jury (there are innumerable Maryland cases to this effect).  However, there is a qualification to this general rule which is as well known as the rule itself; namely, that in certain cases the facts establish that a defendant has been guilty of negligence, or a plaintiff has been [***9]  guilty of contributory negligence, as a matter of law. There are likewise many Maryland cases to this effect.  See for example the Annotation in 69 A.L.R. 2d 9, §  15 (a) and (d), and §  23, where most of the Maryland cases dealing with power line injuries mentioned below are annotated.
Although there is much sound and widely-recognized authority for the proposition that a person of ordinary intelligence, with unimpaired eyesight, who says that he did not see an object which, had he used his senses, he, in the nature of things, must have seen, is not to be credited (for example, see Fulton Building Co. v. Stichel, 135 Md. 542), we do not need to rest our decision here upon that proposition, for, irrespective of whether plaintiff had actual knowledge of the presence of the wire, the law, under the circumstances here involved, charged him with such knowledge.
It is a fundamental principle of negligence law that a person must use his Providence-given senses to avoid injury to himself.  This has been recognized since time immemorial.  In the 

 [*486]  case of Fulton Building Co. v. Stichel, supra, Chief Judge Boyd, for the Court, said:
"If he had used his eyes,  [***10]  *** he could have seen the spikes * * *.  *** He says he did not see any spike but according to the principles announced by the authorities in this State, as well as elsewhere, as there is nothing to show that his sight is impaired, or he was not a man of ordinary intelligence, he cannot avoid the effect of his contributory negligence by saying he did not see an object which, if he had used his senses, he in the nature of things must have seen, and he cannot be credited when he says he did not see it.  Helm's Case, 84 Md. 515, 526; Md. Elec. Ry. Co. v. Beasley, 117 Md. 270, 279; Sullivan v. Smith, 123 Md. 546, 556; Mayor, etc., of Baltimore v. Bassett, 132 Md. 427, 431, and many other cases to same effect.  If he did not use his senses for his protection,  [**305]  as he should have done, he was guilty of negligence." (Italics added.)

And in Texas Co. v. Wash., B. & A. R. Co., 147 Md. 167, this Court stated:
"This contributory negligence [as a matter of law] arises from the failure of the plaintiff to use due care to avoid dangers which he knows *** exist * * *, or because the dangers are so obvious that any ordinarily prudent man would [***11]  see them and guard against them."

This is the underlying principle of the long line of automobile negligence cases, wherein it has been often stated that a duty to look implies a duty to see what is in plain sight; or as Judge Thomsen states the principle in a heading, "Looking and not seeing what he must have seen if he had looked -- testimony not worthy of consideration." See the long line of Maryland cases cited at p. 262, Thomsen, A Classified Index of Motor Vehicle Cases (3rd ed.).
And the above principles have been specifically applied to cases involving injuries from electricity by this Court, the Federal 

 [*487]  Courts, and in innumerable cases by the Courts of our sister States.
In the early case of Cumberland v. Lottig, 95 Md. 42, the Court stated that the mother of a 6 year old child "either saw or could have seen the wires [some 18 inches from the roof of her home] in time to have avoided placing, or allowing her child to lie down immediately under the wire." It then held that irrespective of the question of primary negligence, the injured child, if old enough to understand, was guilty of contributory negligence as a matter of law, and if he were [***12]  not old enough to understand, the mother was contributorily negligent as a matter of law, which was imputable to the child and prevented his recovery.  In other words, the Court held that whether the mother or child had actual knowledge of the location of the wire, they were chargeable with such knowledge because it was in plain view.
State v. Consolidated Gas Co., 159 Md. 138, involved a party who was erecting, or moving, an aerial.  He threw a wire over another one conducting electricity and was electrocuted.  In holding that the deceased had been guilty of contributory negligence as a matter of law, the Court stated:
"'He must use reasonable care in examining his surroundings, to observe and take such knowledge of danger as can be attained by observation.  In performing the duties of his place, he is bound to take notice of the ordinary operation of familiar laws and to govern himself accordingly.  If he fails to do so the risk is his own.' Texas Company v. Wash., B. & A. R. Co., 147 Md. 167; Fulton Bldg. Co. v. Stichel, 135 Md. 542, 548; Baltimore v. Bassett, 132 Md. 427, 431; Sullivan v. Smith, 123 Md. 546, 556; Maryland Electric Ry. Co. v. Beasley [***13]  , 117 Md. 270, 279; Helms v. Balto. Traction Co., 84 Md. 515, 526."
In the above case, as the man was killed, no one could testify as to his actual knowledge of the presence of the wire or its dangerous propensities.  However, the Court held that from the facts and circumstances the deceased must have known of the location of the wire, as it was in plain view, and by its ruling 

 [*488]  charged him with such knowledge, and also charged him with knowledge of its dangerous character.  A similar ruling was made in State v. Gas & Elec. Co., 155 Md. 660, where an aerial wire attached to a pole which was being erected came into contact with defendant's high tension wire passing over the deceased's lot.
From these last two cases, alone, it would seem necessarily to follow that if the  [**306]  fortunate young plaintiff here had been so unfortunate as to have been electrocuted, his use-plaintiffs would have been barred from recovery, as a matter of law, on the ground of contributory negligence of the deceased.
In Thompson v. Cons. Gas Electric Light & Pow. Co., 111 F. Supp. 719, the mast of plaintiff's yacht came into contact with defendant's high voltage wire. Judge [***14]  Chesnut quoted from the LeVonas case (184 Md. 16) as follows: "'In accordance with these basic principles, the law does not require that a person, who maintains even so deadly an instrumentality as a high voltage electric wire, shall anticipate at his peril every possible fortuitous circumstance under which some person might make a contact with the wire, resulting in injury or death.' * * *" He also stated: "Whether or not he [plaintiff] actually knew the clearance of the cable was 34 feet, he was chargeable with that knowledge for the purposes of navigation," he was further "chargeable with the information contained on the revised chart," and was also "chargeable" with the dangerous nature of the cable; hence the plaintiff was contributorily negligent as a matter of law.
The cases making similar holdings are legion.  A few follow with brief outlines of the facts and rulings.  Rudd v. Publ. Service Co., 126 F. Supp. 722 (D. C., N. D. Okla. 1954).  High tension uninsulated wires of company were located 24 feet above a public street.  Three men, after unloading a television antenna, attempted to raise the same.  It was held that the company was not negligent in not insulating [***15]  its wires or in not posting warning signs.  But even if the company were negligent and the men who were killed had no knowledge of the presence of high voltage in the wire, they were "conclusively" shown to be contributorily negligent as a matter of law.
As the case of Craft v. Fordson Coal Co., 171 S. E. 886 (W. 

 [*489]  Va.) cites and quotes from the Maryland case of Fulton Bldg. v. Stichel, supra, and contains many aspects similar to the case at bar, we shall quote from it.  An 18 year old boy sought to recover damages sustained by him while playing on a building leased by his father as a garage.  The damages resulted from contact with uninsulated high voltage wires 16 feet above the ground and 3 feet above the ridge of the roof of the building.  The plaintiff claimed he did not see nor did he know the wires were there.  The court stated: "If he had looked there is no question but what he could have seen these wires and his failure to do that does not relieve him from the duty to exercise ordinary care for his own protection." In holding that a directed verdict for the defendant was proper, the Court further stated:
"The situation here must, of course, be regarded [***16]  prospectively and not in retrospect.  The wires were sixteen feet from the ground and at a place not frequented by the public at all, and to which an adult would not ordinarily be expected to go except to repair the roof. A housetop is itself a precarious place.  Defendants had the right to assume that one mounting even to the flat part of the garage roof would make observations for his own safety.  In such case the wires would be almost level with his vision, but a short distance from him and necessarily discernible.  Therefore it could not be reasonably anticipated that a person on the roof would encounter the wires inadvertently.  It may be admitted that plaintiff had the legal right to climb upon the garage, but that right alone did not require the coal company to insulate or elevate the wires, since they were plainly visible.  Such a requirement would make the company an insurer (a burden not imposed by law).
***"The law requires no one to anticipate an act so unobservant of surroundings by one beyond the age of  [**307]  childhood.  Nutter v. C. & O. Ry. Co. (W. Va.) 166 S. E. 815, 817. The law ordinarily charges a person of unimpaired vision with seeing an object, 'which,  [***17]  if 

 [*490]  he had used his senses, he in the nature of things must have seen.' Fulton Bldg. Co. v. Stichel, 135 Md. 542, 109 A. 434, 437. Accord; Johnson v. Washington Route, 121 Wash. 608, 609-611, 209 P. 1100; Seabridge v. Poli, 98 Conn. 297, 301, 119 A. 214; DeHoney v. Harding (C.C.A.) 300 F. 696."
In Arkansas Power & Light Co. v. Hubbard, 28 S. W. 2d 710 (Ark.), the Court held that the plaintiff, who was injured when a pole which she was assisting to raise came in contact with defendant's uninsulated wire 15 feet above ground, was "chargeable" with knowledge that the wires were uninsulated since they were in plain view, and she was also chargeable with knowledge that the wires were dangerous; consequently, she was guilty of contributory negligence as a matter of law.
The Court in Hines v. Consumers' Ice & Light Co., 294 S. W. 409 (Ark.) held that a lineman was "chargeable" with knowledge of defective insulation on a light wire, "which was in plain view near where he was working." Similar rulings were made in May v. Ill. Power Co., 96 N. E. 2d 631 (Ill. 1951), in Murphy v. Iowa Elect. Co., 220 N.W. 360 (Iowa) ("any adult, sane man could see and would know [***18]  this"), and in Hamilton v. Laclede Electric Co-op., 294 S. W. 2d 11 (Mo. 1956); Watson v. Virginia Electric and Power Co., 100 S. E. 2d 774 (Va. 1957) (decedent saw or ought to have seen the wire had he exercised ordinary care).
29 C.J.S. Electricity, §  53, using almost the exact language used by Chief Judge Boyd in Fulton Building Co., supra, states the rule thus: "Also the law ordinarily charges [emphasis added] a person of unimpaired vision with seeing an object which, if he had used his senses, he, in the nature of things, must have seen."
It is clear to us that the facts of this case not only justify a ruling that appellee was negligent as a matter of law, but impel it.  Appellee's testimony may well bring the case within the scope of the rule that his statement that he did not know the wire was there is not worthy of credence.  Any man, who lives in a trailer, equipped with telephone, electric lights and television, for over a month; who goes to and from work; who 

 [*491]  makes a number of trips to and from Hood's store, barn, and garbage shed; who moves out of one trailer and into another in the same row; who works for some 40 minutes directly under [***19]  the wire complained of and installs, by himself a 16' metal post in an upright position; who totes a 16' metal ladder to the trailer and places it in an upright position (almost directly under the wire) leaning against the trailer; who assembles a 10' antenna (still almost directly under the wire); and who carries the 10' antenna to a position, where, by simple arithmetic, it had to be at least 2 1/2 feet above the top of the trailer, and claims he was unaware of the presence of a wire going directly over his trailer (which at the time of the accident could not have been over 8 to 10 feet from his eyes) probably should not "be credited" to use the words of Chief Judge Boyd quoted above.  But, as previously indicated, the question of appellee's contributory negligence does not have to rest upon whether or not he had actual knowledge of the location of the wire, for, under the authorities set forth above, the law rightfully charged him with such knowledge, because of the facts, as established by his own testimony.  Therefore, being charged by law with the knowledge that the wire was there, his conduct cannot be characterized otherwise then careless and reckless.
It would, indeed, be [***20]  an anomalous and incongruous ruling to hold that a plaintiff can take a 10' aluminum antenna up a 16' aluminum ladder for the purpose of installing it  [**308]  atop a 16' aluminum post (all well-known conductors of electricity) and actually get the top of the antenna at least 22 1/2 feet from the ground and assign as his only reason for not looking up and examining what the situation was with reference to the upper part of the antenna, "I had no reason to look straight up," and still recover for damages resulting from his bringing the antenna into contact with the wire 22 1/2 feet from the ground.  It would mean, in actuality, that the doctrine of contributory negligence had been expunged, at least for the purposes of this case, from the general law of negligence.
The cases of McKinney v. App. Elect. Power Co., 261 F. 2d 292 (C.A. 4), and Muck v. Snohomish County Public Utility Dist. No. 1, 247 P. 2d 233 (Wash.), quite heavily relied upon by the appellee, are both distinguishable upon their facts.  

 [*492]  In McKinney, it was "not disputed *** that for an appreciable period before the time of the injury * * *, the [defendant's] poles, spaced several hundred [***21]  feet apart, and the wires, were not readily visible from anywhere on the mountain and especially not to a person who might enter the right of way covered by a growth [of underbrush] ten feet high." The Court held that the defendant had failed to meet its burden of showing the deceased knew, or should have known, that he was near a low-hanging (14 1/2' above ground) power line.
In Muck, the deceased had gone to a home, for the first time, to help a fellow worker carry a television set into the home.  Upon approaching the house, the truck in which they were riding stalled.  Muck stayed at the truck, and his fellow worker proceeded to the house, and was putting up a temporary 25' antenna close by it.  Muck got the truck moving, and, as he drove up to the house and walked over to where his companion was, the companion was holding the 25 foot antenna pole upright.  Wanting to secure the same near the top of the house, he asked Muck to "take hold of this pole, while I go up on the ladder and tie it to the antenna." Muck did take hold of the pole, and very shortly thereafter was electrocuted when the antenna came into contact with defendant's wire, which ran directly over the house [***22]  (the exact height of the wire is not stated in the Court's opinion; however, it seems to have been over 21 1/2' and under 27 1/2').  There was no showing that Muck knew the wire was there.  Under the above circumstances, the Washington Court held that the question of whether or not Muck was guilty of contributory negligence was one for the jury.  It is obvious that the facts in that case differed widely from those in the case at bar.
Judgment reversed, without a new trial; appellee to pay the costs.  

DISSENTBY:
HORNEY 

DISSENT:

Horney, J., filed the following dissenting opinion, in which Oppenheimer and Barnes, JJ., concurred.
The majority, in ruling that the plaintiff was contributorily negligent as a matter of law on the theory that he was chargeable with knowledge of an existing dangerous condition irrespective 

 [*493]  of whether he had knowledge thereof, in effect hold that electric power companies cannot be held liable for injuries sustained by one who comes in contact with uninsulated wires that can be seen regardless of where such wires are erected or how negligently they are maintained.  To me, charging the plaintiff with knowledge of the presence of uninsulated high voltage [***23]  wires, under the facts and circumstances of this case, necessarily places an unreasonable burden on all persons to make themselves aware of the presence of all electric wires regardless of where such wires may be and regardless of the circumstances under which they come in contact therewith.
In the case at bar, the plaintiff, who was aware of the dangerous characteristics of electricity, testified that although he had observed the several insulated wires a few feet above his trailer and carefully avoided them, he did not see the uninsulated wires some twelve and one-half feet above the top of the trailer and did not know they were there.  Even if he had seen the electric wires he claimed they would have been  [**309]  indistinguishable from the guy wires which were also not insulated. He explained that he could not and did not see the uninsulated wires because the sun, which had been appearing off and on the day of the accident, came out again and was shining in his eyes as he was attempting to hoist the antenna into place.  In further explanation of the reason for not having seen the high voltage wire before he was injured, it was shown that the plaintiff had resided in the trailer [***24]  park for only a month.  During that time his duties and the weather were not conducive to an exploration of his surroundings.  He left home at daybreak and returned at nightfall, and the weather for the most part had been inclement.  He and his family took a trip over one of the weekends.  Later he was housed for two weeks with the flu and was unable to help his wife move from the rented trailer they first occupied to the trailer they subsequently bought.  He had not examined the site of their own trailer before it was put in place and he was not able to assist with blocking it up or making the water, sewer and electrical connections.  He and his family had occupied the new trailer for only a week before the injury occurred.  Other than himself, there were no witnesses to the accident.

 [*494]  While the defendant did not admit that it was primarily negligent, several of its employees frankly stated that in their opinion it was not the better practice, because of potential dangers to occupants, for the defendant to maintain uninsulated high voltage wires over a row of trailers, and one of them, whose duty it was to inspect and report such conditions as appeared to be hazardous [***25]  and not in conformity with good engineering practice, had recognized the existing dangerous condition but failed to report the hazard to his supervisor.
The majority has placed considerable emphasis on the fact that two days before the accident the plaintiff had worked under the wires during the course of erecting a pole in order to avail himself of telephone service.  Additional stress is placed on the fact that the plaintiff neither mentioned the sun nor stated that it had blinded him in his pretrial deposition.  As to the first fact, the record indicates that the pole was erected sometime after five o'clock in the afternoon and there was no evidence with respect to visibility or the lack of it at that late hour on the seventh day of the second month in the year.  As to the second fact, the plaintiff testified that during the taking of his deposition he was never questioned as to whether he had seen the wires he came in contact with or as to what had prevented him from seeing them.  Be that as it may, the plaintiff consistently testified on direct and cross-examination that he had not seen the dangerous high voltage wires directly over his head, and there was no testimony to the [***26]  contrary.
Taking into consideration the comparatively brief length of time he had lived in the trailer camp prior to the accident and particularly the almost complete absence of opportunity to observe his surroundings, due to being away at work most of the daylight hours, to taking a trip over one of the weekends, to being ill for more than a fortnight, to the consistent inclemency of the weather and to his inability to assist with making the water, sewer and electric connections for the new trailer, the real issue, in my opinion, is whether the plaintiff, having looked and missed seeing the high voltage wires because of the glaring sunlight, can be said to have been guilty of contributory negligence. To me, the conclusion that he was negligent is clearly wrong if not incredible.  For where, as here, there was 

 [*495]  evidence that the plaintiff exercised ordinary care in ascending the ladder but, as the result of an intervening cause he had not anticipated, was prevented from seeing what he otherwise could or should have seen had not the sun interfered with his vision, the question as to whether or not the plaintiff should have seen the dangerous overhead wires was a jury question.  [***27]  As was said in B. & O. R.R. Co. v. Hendricks, 104 Md. 76, 86, 64 Atl. 304 (1906), "there is a broad difference between not  [**310]  seeing an object because one does not look, and not seeing it though one does look." Failure, therefore, to see what is there when one looks may be due, as it was in this case, to causes other than the lack of due care.  In State use of Bell v. Eastern Shore Gas and Electric Co., 155 Md. 660, 142 Atl. 503 (1928), n1 where the high voltage wire passed directly over the property of the deceased, it was recognized (at p. 664, that his "inattention to the overhead danger was doubtless due to temporary forgetfulness of its presence, but that would not render his conduct other than negligent, unless his mind was momentarily diverted from the peril by some special and adequate cause, of which *** there [was] no proof." (Emphasis added.)

n1 This case, which is cited by the majority as one of those in which the injured person was charged with knowledge of the existence of a high voltage wire, is clearly distinguishable from the case at bar in that there the deceased must have known of the existence of the wire since he had worked his garden under it for more than three years and had even repaired the wire on one occasion.

 [***28]  
In McKinney v. Appalachian Elec. Pow. Co., 261 F. 2d 292 (4th Cir. 1958), the question of whether the plaintiff knew or should have known of a low-hanging power line was said to be for the jury.  Likewise, Muck v. Snohomish County Public Utility Dist., 247 P. 2d 233 (Wash. 1952), is directly in point.  In that case, which arose out of a fatal accident resulting from contact with electric wires during the erection of a television antenna, the question of whether the wires which could have been seen, should have been seen, was held to be for the jury.  See also the cases collected in 69 A.L.R. 2d 9 (at p. 51) which hold the question of contributory negligence in a case such as this to be for the jury.  The majority do not challenge the holding in McKinney that the power company failed to meet its 

 [*496]  burden of showing that the deceased knew, or should have known, he was near a low-hanging power line which was not visible to one entering the right of way covered by a growth of underbrush.  But they attempt to distinguish Muck by saying that there was in that case no showing that the deceased knew of the existence of the wire. That, however, as the record shows,  [***29]  was precisely the situation in the case at bar.  Not only was there no showing that the plaintiff in the present case knew there were uninsulated wires higher overhead than the insulated wires a few feet above the trailer but there was other evidence that having looked he had been prevented from seeing the uninsulated wires by a circumstance beyond his control.  Clearly, the question of whether or not the plaintiff was contributorily negligent was for the jury to decide.  The jury found that he had not contributed to the serious injuries he sustained, and their verdict should not be disturbed.
Aside from this, since the plaintiff was without knowledge of the uninsulated overhead wires, all of the cases relied on by the majority are clearly distinguishable on their facts.  In Cumberland v. Lottig, 95 Md. 42, 51 Atl. 841 (1902), where the electric wires were only eighteen inches from the roof on which the child was lying, the knowledge which the mother had or should have had of the dangerous character of the wires was imputed to the child.  Likewise, in State use of Bahner v. Consolidated Gas Co., 159 Md. 138, 150 Atl. 452 (1930), n2 where the deceased knew of the  [**311]   [***30]  presence of the wires and the question was whether he knew or ought to have known of the hazard of 

 [*497]  throwing a radio aerial wire over electric wires, it was properly held that the deceased was contributorily negligent.

n2 The quote within the quote from the opinion in State use of Bahner v. Consolidated Gas Co., 159 Md. 138 (taken from Linton v. Baltimore Mfg. Co., 109 Md. 404, 411, where a laborer employed in one part of a factory fell into a vat of boiling molasses in another part), relied on by the majority to support the proposition that the plaintiff in the case at bar was contributorily negligent does no more than restate the well known rule of law that one must use reasonable care to observe and take notice of obvious dangers.  Since, however, there was no showing that the plaintiff had not used reasonable care, the question (as herein above stated) is whether he, having looked and missed seeing the overhead wires, can be said to have been contributorily negligent as a matter of law.

As in the [***31]  Maryland cases, the same is true with respect to the cases cited by the majority from other jurisdictions.  In the cases of Thompson v. Cons. Gas Elec. Lgt. & Pow. Co., 111 F. Supp. 719 (D.Md. 1953), Arkansas Power & Light Co. v. Hubbard, 28 S. W. 2d 710 (Ark. 1930), Hines v. Consumers' Ice & Light Co., 294 S. W. 409 (Ark. 1927) and other cases n3 referred to by the majority in line with these three, the injured party had knowledge of the presence of the wires prior to the happening of the accident.  In Thompson, contributory negligence was said to exist from the failure of the plaintiff, who was aware of the wires, to check the height of his mast, the tide and the charts of the area.  In Hubbard, where the plaintiff was aware of the overhead wires, the question was whether she knew they were dangerous.  In Hines, the plaintiff, who knew of the electric wires, was contributorily negligent in working as close to them as he did in repairing telephone lines.  Also, in Rudd v. Public Service Co., 126 F. Supp. 722 (N. D. Okla. 1954), where the plaintiffs apparently knew of the wires -- there was no question as to whether their knowledge made them guilty of contributory [***32]  negligence -- they were held to be negligent in failing to make certain that their manner of handling an antenna would not result in it falling onto the surrounding electric wires.

n3 May v. Illinois Power Co., 96 N. E. 2d 631 (Ill. 1951), Murphy v. Iowa Elec. Co., 220 N.W. 360 (Iowa 1928), Hamilton v. Laclede Elec. Co-op., 294 S. W. 2d 11 (Mo. 1956) and Watson v. Virginia Elec. & Pow. Co., 100 S. E. 2d 774 (Va. 1957).

In Craft v. Fordson Coal Co., 171 S. E. 886 (W.Va. 1933), the plaintiff was said to be contributorily negligent in failing to exercise ordinary care in that he did not look before ascending the side of a building.  In that case, however, there was no evidence, as there was in the case at bar, that the plaintiff looked but missed seeing the wires because of an intervening factor he had not foreseen.
In my opinion the judgment should be affirmed.  Judge Oppenheimer and Judge Barnes concur in this dissent.  

17 of 19 DOCUMENTS 

YOUNG v. STATE 

No. 160, September Term, 1964.  

Court of Appeals of Maryland 

239 Md. 708; 212 A.2d 100; 1965 Md. LEXIS 610 

July 28, 1965, Decided 

PRIOR HISTORY:
 [**1]  
Appeal from the Criminal Court of Baltimore (CULLEN, J.).  

DISPOSITION:
Judgment affirmed. 

SYLLABUS:

John Austin Young was convicted of robbery with a deadly weapon.  Subsequently, he requested relief in a petition filed under the Uniform Post Conviction Procedure Act and from the denial thereof, and the judgment entered thereon, he applied for, and was granted, leave to appeal.  
Judgment affirmed.  

COUNSEL:
William M. Nickerson (on both arguments) for appellant.  
Robert F. Sweeney, ASsistant Attorney General (on both arguments), with whom was Thomas B. Finan, Attorney General, on the brief, for appellee.  

JUDGES:
THe cause was argued on October 21, 1964, before HENDERSON, C.J., and HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ., and reargued on June 29, 1965 before PRESCOTT, C.J., and HAMMOND, HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.  

OPINION:

  [*101]  PER CURIAM.  
For the reasons given in linkletter v. Walker, 381 U.S. 618, Nance v. WArden, 239 Md. 404, and Cowans and Hayes v. State, 238 Md. 433, the judgment of the trial court will be affirmed. n1 
n1.  Former Chief Judge Henderson sat in hearing the argument in this case, but has not participated in the opinion due to his retirement.  [**2]  

18 of 19 DOCUMENTS 

McNEAL v. DIRECTOR OF PATUXENT INSTITUTION 

App. No. 125, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 407; 211 A.2d 737; 1965 Md. LEXIS 565 

July 1, 1965, Decided 

DISPOSITION:
 [***1]  
Application denied.  

HEADNOTES:

Defective Delinquents -- Staff Report Of Patuxent Institution Held Legally Sufficient, If Believed, To Support Lower Court's Determination Of Defective Delinquency -- Similar Conclusion Reached By Applicant's Own Psychiatrist -- Proper For Director Of Patuxent Institution To Testify From Staff Report -- No Allegation That Applicant Attempted To Summon Staff Members Into Court For Purpose Of Cross-Examination.
Defective Delinquents -- Claim That Director Of Patuxent Institution Testified In Generalities -- If True, Question Went To Weight Of Evidence, Which Was For Trier Of Facts To Determine In First Instance.
Defective Delinquents -- Claim That Applicant Was Sent To Patuxent Institution For Punishment, Not Treatment -- Finding, Upon Sufficient Evidence, Of Defective Delinquency, And No Claim That Applicant Was Not Receiving Treatment -- In Any Event, Questions Were Not Properly Before This Court, Since They Were Bald Allegations Without Any Supporting Facts.
Defective Delinquents -- Whether Individual Has Been Convicted Of Crimes Against Property Or Against Persons Is Not A Controlling Factor In Such Cases.
Defective Delinquents --  [***2]  Confinement At Patuxent Institution Not Cruel And Unusual Punishment.  

SYLLABUS:

From a finding by the lower court that he was a defective delinquent, David Emanuel McNeal applied for leave to appeal. 

JUDGES:
Prescott, C. J., and Hammond, Horney, Marbury, Sybert and Barnes, JJ.  Sybert, J., delivered the opinion of the Court. 

OPINIONBY:
SYBERT 

OPINION:

 [*408]   [**738]  The applicant, David Emanuel McNeal, pleaded guilty to a charge of storehouse breaking in 1963 and was sentenced to serve not more than two years in the Maryland Institution for 

 [*409]  Men.  Thereafter, upon the request of the Department of Correction he was transferred to Patuxent Institution for evaluation as a defective delinquent. At a non-jury trial held in October 1964 before Chief Judge Manley in the Criminal Court of Baltimore he was found to be a defective delinquent and was committed to Patuxent.
In this application for leave to appeal from the commitment order, the applicant's counsel raises six contentions.  He maintains, first, that the evidence was legally insufficient to support the finding of defective delinquency.  This contention is without merit since the Patuxent staff report introduced in evidence [***3]  through Dr. Boslow, Director of the Institution, was clearly sufficient, if believed by the court, to support the court's determination.  Moreover, the report of an independent psychiatrist who examined the applicant at his request, which was filed in the proceedings, also concluded that McNeal was a defective delinquent.
Counsel's second contention is that the only witness who testified for the State was Dr. Boslow and that he merely read from reports prepared by his staff without giving McNeal an opportunity to cross-examine the persons who actually made the reports.  This Court has held repeatedly that it is proper for Dr. Boslow to testify from his staff's report (Silvestri v. Director, 234 Md. 641, 199 A. 2d 784 (1964), and cases cited), and, as we said above, the report was legally sufficient to support the court's determination.  In regard to the applicant's right to cross-examine the staff members, McNeal does not allege that he  [**739]  attempted to summon these persons into court and since he did not avail himself of his right to do so he cannot be heard to complain now.  Brunson v. Director, 239 Md. 128, 210 A. 2d 372 (1965).
Next, counsel contends that Dr.  [***4]  Boslow did not specifically testify why he considered McNeal to be a defective delinquent, but spoke in generalities.  If true, this was a question going to the weight of the evidence, which was for the trier of facts to determine in the first instance.  As noted, the staff report itself provided ample basis to support the verdict.
Fourthly, counsel complains that the applicant was originally sent to Patuxent for evaluation because of his alleged unsatisfactory 

 [*410]  adjustment at the Maryland Institution for Men and not for the purpose of determining whether he was a defective delinquent. Hence, he says, McNeal was sent to Patuxent for punishment, not treatment.  However, he was found, on sufficient evidence, to be a defective delinquent, and there is no claim that he is not receiving treatment.  In any event, neither of these questions is properly before us since they are both bald allegations without any supporting facts.  Maryland Rule 894 a 2(a).
Counsel further urges that the offenses for which McNeal was convicted were crimes against property and not against persons and that there is no pattern of conduct indicating that he is a danger to persons.  Whether an individual [***5]  has been convicted of crimes against property or against persons is not a controlling factor in regard to a determination that the individual is a defective delinquent. Cowman v. State, 220 Md. 207, 151 A. 2d 903 (1959).
The final contention of counsel is that McNeal is being subjected to cruel and unusual punishment by his confinement at Patuxent.  A similar contention was made and rejected in Meredith v. Director, 226 Md. 653, 172 A. 2d 501 (1961).
In addition to the contentions made by his counsel, the applicant has raised several questions in proper person.  We find that they either lack merit and their answers are controlled by prior decisions of this Court, such as Sansbury v. Director, 237 Md. 545, 206 A. 2d 807 (1965), and cases cited; Bullock v. Director, 231 Md. 629, 190 A. 2d 789 (1963); Simmons v. Director, 231 Md. 618, 189 A. 2d 644 (1963); Simmons v. Director, 227 Md. 661, 177 A. 2d 409 (1962); Palmer v. State, 215 Md. 142, 137 A. 2d 119 (1957); and McDonough v. Director, 229 Md. 626, 183 A. 2d 368 (1962); or that they lack the specificity required by Rule 894 a 2(a).
Application denied.  

19 of 19 DOCUMENTS 

GRAHAM v. STATE 

No. 358, September Term, 1964 

Court of Appeals of Maryland 

239 Md. 521; 212 A.2d 287; 1965 Md. LEXIS 577 

July 28, 1965, Decided 

PRIOR HISTORY:
 [***1]  

Appeal from the Circuit Court for Wicomico County; Taylor and Mace, JJ.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Arrest -- Existence Of Probable Cause Justifying Arrest Without Warrant Depends Upon Facts And Circumstances In Each Particular Case.
Arrest -- Probable Cause Found For Arrest Without Warrant Of Defendant In This Murder Case.  In the present murder case the Court held that the police officers who arrested the defendant without a warrant had probable cause for doing so, so as to permit the introduction into evidence of a pistol procured as a result of a search made at the time of the arrest. The officers knew at that time that a felony had been committed; they had information that the defendant had a pistol of one of the five types of weapons from which a police expert had determined that the bullets causing the victim's death had been fired; and they also had information that the defendant was avoiding the police, hiding in the woods during the day time, and had stated that if he were apprehended, the police would "have to take me dead".  Moreover, the defendant lived within three and one-half miles of the scene of the crime, and it appeared to a deputy sheriff [***2]  that he had attempted to escape from the officers by raising a window, but the window was closed after the deputy called to other officers.  The statements made by the defendant, and his conduct, reasonably indicated a far more serious situation than a mere violation of motor vehicular laws, an offense for which warrants were outstanding against him.
Arrest -- Where Arresting Officers Have Reasonable Grounds To Believe That Defendant Has Committed Felony, They Need Not Obtain Warrant Merely Because They Have Sufficient Time Within Which To Do So.
Criminal Law -- Evidence -- Defendant's Shoes And Plaster Cast Of Footprint Found Near Scene Of Crime Properly Admitted Into Evidence Under Circumstances Here.  The correspondence of footprints found in connection with a crime with the print made by the shoe of an accused is admissible into evidence to identify the accused as the guilty person.  In the present murder case the Court held that the trial court had properly admitted into evidence the defendant's shoes and the plaster cast of a footprint found near the scene of the crime.  The testimony of a police expert was sufficient to support a determination by the jury that [***3]  the defendant had made the footprint, and the expert explained any differences between the footprint and the defendant's left shoe. The chain of custody was fully established, and the defendant's objections went to the weight of the evidence, rather than to its admissibility.  

SYLLABUS:

Henry Graham was convicted by a jury of murder in the first degree without capital punishment and sentenced to life imprisonment.  From the judgment entered thereon, he appeals.  

COUNSEL:
Hamilton P. Fox, Jr., for the appellant.
Richard M. Pollitt, Special Attorney, with whom were Thomas B. Finan, Attorney General, W. Ross Hockersmith, State's Attorney for Worcester County, and Alfred T. Truitt, Jr., State's Attorney for Wicomico County, on the brief, for the appellee.  

JUDGES:
Prescott, C. J., and Hammond, Horney, Sybert and Barnes, JJ.  Barnes, J., delivered the opinion of the Court.  

OPINIONBY:
BARNES 

OPINION:

 [*522]   [**288]  The appellant, Henry Graham, defendant below, was convicted 

 [*523]  by a jury in Wicomico County of murder in the first degree without capital punishment and sentenced by the trial court to life imprisonment.  He raises two questions on appeal in regard to evidence [***4]  admitted against him at the trial: 1) Did the officers who arrested the defendant have probable cause for arresting him, so as to permit the introduction into evidence of a pistol procured as a result of the search made of the defendant's home at the time of his arrest? 2) Did the State show a sufficient connection between the defendant and the plaster impression of a shoeprint introduced into evidence so as to permit the introduction of the plaster mold into evidence?
We have concluded that both questions must be answered in the affirmative.
I.
The facts in regard to the first question are as follows:
The body of Zadok Henry, the murdered man, was discovered on January 31, 1964 in the rear of his second-hand furniture store in Berlin, Worcester County, Maryland. n1 The Deputy Medical Examiner, who examined the body at 11:30 A.M. estimated that the victim had been dead for approximately twelve hours or more.  The victim was 76 years of age.  There were four gunshot wounds in the body, three in the chest and one in the neck, at least one of which was fatal.  These bullets were removed from the body by the Deputy Medical Examiner and turned over to the State Police.  The State Police [***5]  expert, Sergeant John S. Sawa, found that these bullets were Remington golden .22 caliber bullets, and were fired from one of five different type weapons. One of the five weapons was a "Rohm" .22 caliber, double action revolver.

n1 The trial was removed from Worcester County at the request of counsel for the defendant and was held in the Circuit Court for Wicomico County.

The police officers in charge of investigating the murder were notified that they should look for weapons of these five types.  On February 2, 1964, Deputy Sheriff Rhem Lane of Worcester County talked with Allen Benjamin Moore for the purpose of checking a "Rohm" .22 caliber pistol owned and registered by 

 [*524]  Moore.  Later, on February 7, 1964, at about 3:30 P.M., Deputy Sheriff Lane talked with Moore who then told the Deputy Sheriff that the defendant had a pistol "exactly like his." Moore also stated that the defendant had visited Moore's home between February 2nd and February 7th and that the defendant had in his possession a pistol [***6]  "exactly like his"; that he had seen the defendant loading this pistol; that the defendant wanted to stay with Moore, but when advised by Moore that the police came to Moore's home regularly to check up on him, the defendant stated, "Well, I can't stay here then" and "if they take me, they have to take me dead"; that the defendant was hiding in the woods during the day time and was coming home at night to a shack across the road from the house in which the defendant's wife and children lived.  The Deputy Sheriff knew that the weapon which Moore described was of the type being sought by the police in connection with the murder.
The defendant's home was within three and one-half miles of the place of the murder.
Acting upon the information obtained from Moore, the Deputy Sheriff gathered several other officers and went to the defendant's home that night.  At 12:50 A.M. they arrived at the defendant's home.  The door was bolted with a padlock on it and, on the door was a note which read: "Have gone to Salisbury Be back tomorrow" and signed "Christine." The first name of the defendant's wife was "Christine." The officers then went across the road to the small shack and tried to get in,  [***7]  but could not.  While making one last search around  [**289]  the back of the shack, the Deputy Sheriff saw the defendant push up a window (the Deputy Sheriff thought the defendant was trying to get out of the window), and after the Deputy Sheriff called to the other officers, the window was closed and the officers surrounded the building.  They then entered the building.  The defendant and his wife were there.  The defendant was crouched down in the corner of the room with the Rohm .22 caliber pistol in his hand.  When the officers entered he arose and dropped the pistol into a washing machine, from which it was recovered by the officers.  No warrant for the defendant's arrest had been obtained by the officers for the murder, although there were 

 [*525]  outstanding warrants against the defendant for violation of the motor vehicle laws in failing to have tags on his motor vehicle. The testimony of the officers indicated that they arrested the defendant for the murder and not for the motor vehicle law violation.  The State Police expert was of the opinion and testified that the bullets recovered from the victim's body were fired from the Rohm .22 caliber pistol recovered from [***8]  the washing machine and the trial court, over objection of the defendant's counsel, admitted the pistol into evidence against the defendant.
In the case at bar, the information upon which the police acted was fully developed in the evidence.  Cf. Farrow v. State, 233 Md. 526, 197 A. 2d 434 (1964). The existence of probable cause justifying an arrest without a warrant depends upon the facts and circumstances in each particular case.
Judge Horney, for the Court, stated in Mulcahy v. State, 221 Md. 413, at 422, 158 A. 2d 80 (1960):
"*** [T]he substance of all definitions of 'probable cause' is a reasonable ground for believing that the person about to be arrested is guilty and that 'probable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.' Moreover, where circumstances make an arrest without a warrant lawful, it is permissible, as an incident to the arrest, to search the person of the suspect and to take into custody and examine the tangible evidence or [***9]  instruments of the crime, whether upon his person or within his present or immediate possession.  Callahan v. State, 163 Md. 298, 162 Atl. 856 (1932); Carroll v. United States, 267 U.S. 132 (1925)."

See also 5 Am. Jur. 2d "Arrest," Section 48, where it is stated:
"The existence of 'probable cause', justifying an arrest without a warrant is determined by factual and 

 [*526]  practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.  It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved."
As pointed out by the Supreme Court of the United States in Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949), citizens must be protected from unreasonable invasions of privacy and from unfounded charges of crime, but, on the other hand, police officers must have reasonable leeway for enforcing the law and protecting the community from criminal behavior.  The rule of "probable cause" -- a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such a belief than would justify [***10]  conviction but more evidence than that which would arouse a mere suspicion -- is the best compromise between these two important considerations of public policy.
 [**290]  In the present case, the police officers at the time of the arrest knew that a felony had been committed.  This arrest was not made upon mere suspicion that a felony might have been committed.  See Capparella v. State, 235 Md. 204, 208, 201 A. 2d 362, 364 (1964) and Young v. State, 234 Md. 125, 129, 198 A. 2d 91, 93 (1964).
In addition to the knowledge that a felony had been committed, the arresting police officer knew the following: The police expert had determined that the bullets causing the victim's death were fired from one of five type weapons, one of which was a "Rohm" .22 caliber pistol. Moore had a pistol of this type and the defendant had one "exactly like his." The defendant had stated to Moore n2 that he (the defendant) could not stay with Moore if the police came there; that the defendant was hiding in the woods during the day time; and that if the defendant were apprehended by the police, "they have to take me dead." The defendant lived within three and one-half miles 

 [*527]  of [***11]  the place where the crime was committed.  When investigating the shack, the defendant raised a window and appeared to the Deputy Sheriff to attempt to escape through it.  After hearing the Deputy Sheriff's call to the other officers, the window was closed.

n2 Information received from a third person may form the basis for a reasonable belief by the arresting officer that the defendant committed the felony. Shorey v. State, 227 Md. 385, 177 A. 2d 245 (1962). See Mulcahy v. State, 221 Md. 413, 158 A. 2d 80 (1960).

The statements made by the defendant and his conduct reasonably indicated a far more serious situation than a mere violation of the motor vehicle laws, and the arresting officers had probable cause to believe that the defendant had committed the felony of which they already had knowledge.
The defendant complains that the arresting officers did not obtain a warrant although they had time to do this.  The record does not clearly establish that they did have sufficient time to obtain a warrant, but assuming,  [***12]  without deciding, that they did have sufficient time, this is not material in the case at bar.  It is well established that if the arresting officers had reasonable grounds to believe that the defendant had committed the felony, it was not necessary that they obtain a warrant merely because they had sufficient time within which to do this.  Mills v. United States, 196 F. 2d 600, 602 (1952, U. S. C. of Ap. D.C.) cert. den. 344 U.S. 826, 73 S. Ct. 27, 97 L. Ed. 643 (1952). See also Reeves v. Warden, 226 F. Supp. 953, 957 (1964, U. S. D. Ct., Md.).
II.
In regard to the second question, the facts are as follows:
Sergeant Robert D. Weir, Supervisor of Criminal Investigation of the Maryland State Police in Salisbury, Maryland, with Trooper Chaffey arrived at the scene of the crime on January 31, 1964.  They observed a number of footprints of various shapes and sizes near the Henry home and second-hand furniture store.  On the south there was a path leading from the south end of the building toward the road.  This path was apparently used frequently.  On this path, approximately 30 feet from the building, Sergeant Weir and Sheriff Tyler covered several footprints with tin and other [***13]  materials in order to preserve them.  It appeared that it might rain that day.  Later on January 31st, State Trooper Gary Coonradt, the police expert in identification in footprints, shoes, heels and tire impressions, 

 [*528]  and a police photographer, arrived at the Henry home.  The footprints, which had been covered with tin and other materials, were shown the officers and photographs of the prints were then taken after they were uncovered.  It was "misting and starting to rain" and it was thought that the pictures should be taken forthwith as they might be spoiled by the rain.  The footprint in question was 30 feet from the  [**291]  corner of the building and the point of the shoe pointed towards the building.  The following day at approximately 1:30 P.M., State Trooper Coonradt poured plaster on the print which had theretofore been covered with a piece of tin, which had been removed and replaced after the photograph was taken on January 31st.
After the plaster impression had been removed and the sticks, grass and like debris removed, the defendant was requested on February 8th, to give Trooper Coonradt a pair of his shoes. The defendant willingly did this.  After careful [***14]  examination, Trooper Coonradt concluded that the plaster cast was the impression of a man's left shoe and that it was a heel impression characteristic of a deluxe Cat's Paw type heel, size 11-12.  It was the type of Cat's Paw heel made in Baltimore.  There are Japanese imitations of these heels and it is often difficult to tell the imitation from the heel manufactured in the United States.  The defendant's shoes were received into evidence.  The comparison of the left shoe of the defendant with the plaster cast disclosed that they were similar in size, manufacture, design and contour.  A nick in the left heel of the defendant's shoe also appeared in the impression in the plaster cast. Trooper Coonradt explained that in mud, the impression would be smaller than the actual shoe, but in sand it would appear larger.  The footprint in question had been made in mud.
In our opinion, the trial court properly admitted the defendant's shoes and the plaster cast of the footprint into evidence.  Trooper Coonradt's testimony was sufficient to support a determination by the jury that the footprint was made by the defendant.  He explained away any differences between the footprint and the defendant's [***15]  left shoe. The chain of custody was fully established.  The defendant's objections go to the weight of this evidence rather than to its admissibility.  See Breeding v. 

 [*529]  State, 220 Md. 193, 199, 151 A. 2d 743, 747 (1959). Lingner v. State, 199 Md. 503, 507, 86 A. 2d 888, 890 (1952).
It is now well established that the correspondence of footprints found in connection with a crime with the print made by the shoe of the accused, is admissible in evidence to identify the accused as the guilty person.  People v. Hanson, 31 Ill. 2d 31, 198 N. E. 2d 815 (1964); State v. Mihoy, 98 N. H. 38, 93 A. 2d 661 (1953); State v. Ragland, 227 N. C. 162, 41 S. E. 2d 285 (1947). See the annotation "Footprints as Evidence" 31 A.L.R. 204 and cases cited at pages 217-218 and 219-220, and 22 A C.J.S. "Criminal Law," Sec. 616 b (3) page 430, and cases cited in Note 43.
Since we find no error in the two rulings on the evidence by the trial court presented by this appeal, the judgment will be affirmed.
Judgment affirmed.